Iron Workers District Council Of Southern Ohio & Vicinity Benefit Trust et al v. Matheny and Sons General Contracting LLC et al

Filing 24

ORDER COMPELLING DISCOVERY AND IMPOSING SANCTIONS. Signed by Magistrate Judge Caroline H. Gentry on 5/19/2023. (srb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION (DAYTON)
IRON WORKERS DISTRICT
COUNCIL OF SOUTHERN OHIO &
VICINITY BENEFIT TRUST, et al.,
Plaintiffs,
vs.
MATHENY & SONS GENERAL
CONTRACTING LLC, et al.,
Defendants.

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Case No. 3:21-cv-00081
District Judge Michael J. Newman
Magistrate Judge Caroline H. Gentry

ORDER COMPELLING DISCOVERY AND IMPOSING SANCTIONS
In this lawsuit, Plaintiffs seek to collect contributions owed by Defendants
pursuant to a collective bargaining agreement with Iron Workers Local No. 769, a
participating union. (See Complaint, ECF No. 1.) Following Defendants’ failure to timely
respond to the complaint or to appear in this matter, the Clerk of Court docketed an entry
of default against Defendants pursuant to Federal Rule of Civil Procedure 55(a). (ECF
No. 7.) Subsequently, on September 10, 2021, the Court awarded summary judgment to
Plaintiffs and ordered Defendants to pay $42,754.32 in damages and $2,125.52 in
attorneys’ fees and costs. The Court also ordered Defendants to submit all missing
contribution reports and permit Plaintiffs to audit and examine the same. (ECF No. 10.)
The record now reflects that, following the Court’s September 10 order, Plaintiffs
have experienced ongoing difficulties in collecting judgment. On October 15, 2021,
Plaintiffs filed a Motion for a Writ of Continuing Garnishment (ECF No. 11), which the
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Court granted (ECF No. 13). However, the Garnishee, Peoples Bank, filed an answer
indicating that Defendants had closed their account with that institution. (ECF No. 16
(sealed).) Next, on Plaintiffs’ motion (ECF No. 17), the Court ordered Defendant Steve
Matheny to appear before the Court pursuant to Federal Rule of Civil Procedure 69 to
answer under oath as to Defendants’ property and assets and to produce certain
documents (ECF No. 18). Defendant Matheny appeared as ordered but, of the eight
documents that he was ordered to produce, brought none.
Plaintiffs describe their subsequent efforts to collect judgment as follows1:
[Plaintiffs], by and through counsel, advised [Defendant Matheny] on May
5, 2022 that Defendants were being served with post-judgment
interrogatories and requests for production of documents so he could
supplement his [debtor’s] exam with the documents he failed to provide . . .
The discovery requests were served upon Defendants via certified mail and
email pursuant to Fed. R. Civ. P. 5(b)(2)(C) and (E), based on the mailing
address that Mr. Matheny provided at his judgment debtor’s exam and the
email address that Mr. Matheny directly provided to counsel for Plaintiffs.
Accordingly, under Fed. R. Civ. P. 6(a)(1)(C), 6(d), 33(b)(2) and
34(b)(2)(A), Defendants’ responses were due no later than June 9, 2022.
However, they failed to provide responses, object to the requests, or
otherwise request an extension of time to respond. Accordingly, Plaintiffs’
counsel sent Mr. Matheny a letter dated July 8, 2022 via email and certified
mail, advising him that no responses had been received, and if said responses
were not provided by July 15, 2022, [Plaintiffs] reserved the right to take any
further action to obtain compliance. To date, Defendants have refused and
otherwise failed to respond to these outstanding discovery requests.
(Plaintiffs’ Motion to Compel Discovery in Aid of Execution of Judgment
and for Sanctions, ECF No. 20, PageID 220 (internal citations omitted).)
Plaintiffs have now filed a Motion to Compel Discovery in Aid of Execution of
Judgment and for Sanctions (“Motion to Compel”), asking the Court to intercede and to
Plaintiffs’ description of their enforcement efforts is both uncontested and supported by sworn affidavits. The
Court therefore accepts Plaintiffs’ assertions as true. Compare, e.g., Hart v. Penske Truck Leasing Co., 2013 U.S.
Dist. LEXIS 85426, at *2 (W.D. Tenn. 2013).
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issue an order compelling Defendants to comply with Plaintiffs’ post-judgment discovery
requests. (Id.) For the reasons set forth below, that motion is well-taken.
I.

LAW AND ANALYSIS

A. Compliance with Discovery Requests
Under Federal Rule of Civil Procedure 69(a)(2), a party seeking to enforce a
judgment has recourse to “the full panoply of federal discovery measures . . . to obtain
information . . . about assets on which execution can issue or about assets that have been
fraudulently transferred”. Searcy v. GUUAS, LLC, No. 2:19-CV-03124, 2021 WL
2256220, at *1 (S.D. Ohio 2021) (Preston Deavers, M.J.). See also, e.g., U.S. v. Smith,
No. 1:99-CV-00974, 2017 WL 1047639, at *3 (S.D. Ohio 2017) (Bowman, M.J.). When
a debtor fails to comply with a judgment creditor’s discovery requests, the creditor may
compel compliance via court order. See Miller v. Ability Recovery Servs. LLC, No. 1:18CV-00266, 2020 WL 2838597 (S.D. Ohio 2020) (Black, D.J.); U.S. v. Smith, No. 1:99CV-00974, 2017 WL 1047639 (S.D. Ohio) (Bowman, M.J.). See also U.S. v. Worthy,
1998 WL 898840 (6th Cir. 1998) (District Court has discretion in deciding post-judgment
motion to compel).
Plaintiffs have attached, as exhibits to their Motion to Compel, copies of the
discovery requests as to which they seek an order compelling compliance. (ECF No. 231–23-4.) These requests seek information that is relevant to the existence and location of
Defendants’ assets. (E.g., ECF No. 23-1, at “Interrogatory No. 2”, PageID 339 (“Please
identify each and every piece of real property owned or leased by you since January 1,
2018 . . . ”); id. at “Document Request 3”, PageID 351 (“Please produce complete,
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current, and accurate lists, schedules, and records of all of Defendants’ stocks, bonds,
shares, or interest in all liquid assets or other similar funds . . . ”).) These are “exactly the
type of discovery requests permissible under Federal Rule 69(a)(2)”. Miller, 2020 WL
2838597, at *3. Accord, e.g., U.S. v. Conces, 507 F.3d 1028, 1040 (6th Cir. 2007).
Defendants have not timely responded or objected to those requests. Fed. R. Civ.
33(b)(2); 34(b)(2)(A). Consequently, they have waived any objection thereto. E.g.,
Miller, 2020 WL 2838597, at *3.
In sum, Defendants are required to provide responses to Plaintiffs’ discovery
requests. Because they have failed to do so, Plaintiffs are entitled to a Court order
compelling such responses.
B. Sanctions
In addition to compelling Defendants’ compliance with discovery, Plaintiffs ask
the Court to order “sanctions in the form of attorney’s fees accrued in making the motion
to compel and addressing Defendants’ failure to provide discovery responses.” (ECF No.
20, PageID 224.) Pursuant to Federal Rule of Civil Procedure 37(a)(5)(A)(i)–(iii), the
Court finds that 1) prior to filing their Motion to Compel, Plaintiffs made good-faith
attempts to obtain discovery without Court action (see ECF No. 23-1–23-4); and 2)
Defendants’ refusal to comply with discovery was unjustified; and 3) no circumstances
exist which would make sanctions unjust in this case. Accordingly, Plaintiffs are entitled
to the “reasonable expenses incurred in making the motion, including attorney’s fees”. Id.

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II.

CONCLUSION

For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion to Compel
Discovery in Aid of Execution of Judgment and for Sanctions (ECF No. 23).
Accordingly:
Defendants are ORDERED to respond to Plaintiffs’ discovery requests within
thirty (30) days of the date of this Order.
Plaintiffs are GIVEN LEAVE to file a bill of costs detailing the expenses that
they incurred in bringing their Motion to Compel and addressing Defendants’ failure to
provide discovery responses.
Finally, Defendants are CAUTIONED that the Court takes a dim view of their
continued evasion of execution of judgment and repeated failures to comply with the
lawful orders of this Court. Failure to comply with the terms of this Order may result
in the imposition of further sanctions, including but not limited to civil contempt.
IT IS SO ORDERED.
/s/ Caroline H. Gentry
Caroline H. Gentry
United States Magistrate Judge

Procedure on Objections
Pursuant to Fed. R. Civ. P. 72(a), any party may serve and file specific, written
objections within FOURTEEN days after being served with this Order. Pursuant to Fed.
R. Civ. P. 6(d), this period is extended to SEVENTEEN days if this Order is being
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served by one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), or (F).
Such objections shall specify the portions of the Order objected to and shall be
accompanied by a memorandum of law in support of the objections. If the Order is based
in whole or in part upon matters occurring of record at an oral hearing, the objecting
party shall promptly arrange for the transcription of the record, or such portions of it as
all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned
District Judge otherwise directs. A party may respond to another party’s objections
within FOURTEEN days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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