ASKEW v. R.L. REPPERT, INC. et al

Filing 165

MEMORANDUM CONCERNING APPEALS. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 10/31/2016. 11/1/2016 ENTERED AND COPIES E-MAILED.(lbs, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DERRICK ASKEW,
Plaintiff
v.
R.L. REPPERT, INC.;
RICHARD L. REPPERT;
R.L. REPPERT, INC. EMPLOYEES
PROFIT SHARING 401(k) PLAN;
R.L. REPPERT, INC. MONEY
PURCHASE PLAN (DAVIS BACON PLAN);
R.L. REPPERT, INC. MEDICAL PLAN;
R.L. REPPERT, INC. HRA MEDICAL
EXPENSE REIMBURSEMENT PLAN,
Defendants and
Third-Party Plaintiffs
v.
CALIFORNIA PENSION ADMINISTRATORS &
CONSULTANTS, INC.,
Third-Party Defendants

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Civil Action
No. 11-cv-04003

MEMORANDUM CONCERNING APPEALS
This Memorandum Concerning Appeals (“Memorandum”) is
filed in response to the Notice of Appeal filed by plaintiff
Derrick Askew on October 21, 2016 and to the Notice of Appeal
filed by defendants R.L. Reppert, Inc., Richard L. Reppert,
R.L. Reppert, Inc. Employees Profit Sharing 401(k) Plan,
R.L. Reppert, Inc. Money Purchase Plan (Davis Bacon Plan),
R.L. Reppert, Inc. Medical Plan, and the R.L. Reppert, Inc. HRA

Medical Expense Reimbursement Plan (collectively, “defendants”)
on October 25, 2016.
Plaintiff Derrick Askew appeals from United States
Magistrate Judge Henry S. Perkin’s Order dated and filed
December 3, 2013 (Document 55), my Order dated and filed
September 30, 2014 (Document 58), Magistrate Judge Perkin’s
Order dated and filed April 10, 2015 (Document 74), my Order
dated November 19, 2015 and filed November 20, 2015
(Document 124), my Order and Opinion dated February 4, 2016 and
filed February 5, 2016 (Documents 132 and 133), my Order and
Opinion dated and filed February 26, 2016 (Documents 141 and
142), my Order dated and filed February 29, 2016 (Document 145),
and my Verdict and Adjudication dated and filed September 30,
2016 (Documents 160 and 161).
Defendants appeal from my Verdict and Adjudication
dated and filed September 30, 2016 (Documents 160 and 161).
Rule 3.1 of the Local Appellate Rules for the United
States Court of Appeals for the Third Circuit permits the trial
judge to file a written opinion or amplification of a prior
written or oral recorded ruling or opinion within 30 days of the
docketing of a notice of appeal.
With respect to my Order dated November 19, 2015 and
filed November 20, 2015 (Document 124), my Order and Opinion
dated February 4, 2016 and filed February 5, 2016 (Documents 132
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and 133), my Order and Opinion dated and filed February 26, 2016
(Documents 141 and 142), my Order dated and filed February 29,
2016 (Document 145), and my Verdict and Adjudication dated and
filed September 30, 2016 (Documents 160 and 161), I believe that
the reasons, analysis and legal authority for the above-listed
rulings and opinions are adequately expressed therein and that
no amplification or supplemental writing is necessary. 1
However, I believe that it would be helpful for
purposes of appellate review to briefly elaborate on the
reasoning and analysis expressed in footnote three of my Order
dated and filed September 30, 2014 (Document 58).
Footnote three of my September 30, 2014 Order
explained the basis for my overruling plaintiff’s objection to
paragraph two of Magistrate Judge Perkin’s Order dated and filed
December 3, 2013 (Document 55), which denied that part of
Plaintiff’s Motion to Compel Defendants to Cooperate in
Discovery (“Plaintiff’s Motion to Compel”) (Document 52)

1

As noted above, plaintiff also appeals from two Orders filed by
United States Magistrate Judge Henry S. Perkin. Because I did not author and
issue those Orders, I do not believe it appropriate or permissible for me to
supplement or amplify those Orders.
However, plaintiff has previously filed objections to those
Orders, and I have ruled on those objections. As expressed in this
Memorandum, I decline to supplement my Order dated November 19, 2015 and
filed November 20, 2015 (Document 124), which overruled plaintiff’s
objections to Magistrate Judge Perkin’s Order dated and filed April 10, 2015
(Document 74), but this Memorandum will supplement my Order dated and filed
September 30, 2014 (Document 58), which overruled in part and sustained in
part plaintiff’s objections to Magistrate Judge Perkin’s Order dated and
filed December 3, 2013 (Document 55).

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requesting a court order compelling defendants to produce
documents pursuant to plaintiff’s document requests 3.01 and
3.04.
Plaintiff’s document requests 3.01 and 3.04, as
articulated in Plaintiff[’s] Request for Production of Documents
Directed to All Defendants, requested:
3.01 All Documents, Records and Summaries not
previously produced evidencing the terms of the
Reppert Plans during the Relevant Period. . . .
3.04 All Documents, Records or Summaries
relating to your answer to Plaintiffs’ First Set
of Interrogatories to Defendants. 2
Defendants’ initial response to plaintiff’s
interrogatories regarding plan documents stated in relevant part
that defendants “previously produced all non-objectionable
responsive documents in its possession . . . .

To the extent

any documents identified by [plaintiff] were not produced . . .
[defendants] do not have any such documents.” 3

2

See Document 52-4 at page 17.

3
Answers and Objections of R.L. Reppert, Inc. Defendants to
Plaintiff’s First Set of Interrogatories (Document 52-5) at pages 3-4.

Both parties produced this document, defendants’ response to
plaintiff’s interrogatories, attached as Exhibit 2 to Plaintiff’s Motion to
Compel (Document 52-5) and Exhibit E to Defendants, R.L. Reppert, Inc., et.
al.’s, Response to Plaintiff’s Motion to Compel Defendants to Cooperate in
Discovery (“Defendants’ Response”) (Document 53). However, neither party
produced any document that purports to be defendants’ response to plaintiff’s
document requests. It is not clear whether this omission is the result of a
mistake or whether no such document exists.

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Defendants’ response to Plaintiff’s Motion to Compel
reiterated that they “had already provided the documents in
[their] possession pursuant to [plaintiff’s document
r]equest[s] 3.01 and 3.04” and gave detail on the specific
documents that they had produced. 4
Upon consideration of the above, Magistrate Judge
Perkin denied that part of Plaintiff’s Motion to Compel seeking
an order to compel defendants to produce documents pursuant to
plaintiff’s document requests 3.01 and 3.04, because Judge
Perkin found defendants’ submissions credible as to the fact
that “any responsive documents in Reppert Defendants’ possession
have been produced, and any additional responsive documents may
be in the possession of Third-Party Defendants.” 5
Plaintiff objected to Judge Perkin’s determination,
arguing that “[a]t no point in its responses did [defendants]
assert or represent that the documents that are responsive to
the particular requests have been produced.” 6

Plaintiff further

contended that “[i]f Reppert does not possess the requested
documents, it has every opportunity to by indicating same [sic]

4

Defendants’ Response (Document 53) at page 7; see id. at pages 56, 9, 19-20, 43-44.
5

Order of United States Magistrate Judge Henry S. Perkin dated and
filed December 3, 2013 (Document 55) at page 1.
6

[Plaintiff’s] Statement of Objections to Magistrate’s Order of
December 3, 2013 (“Plaintiff’s Objections”) (Document 56) at page 11.

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in its verified responses. . . .

Reppert has failed to take a

position one way or the other.” 7
Plaintiff’s objections are factually unsupported and
in no way demonstrate that paragraph two of Magistrate Judge
Perkin’s December 3, 2013 Order is clearly erroneous or contrary
to law.
As noted above, and as plaintiff himself acknowledges,
defendants’ initial responses to his interrogatories did, in
fact, assert that they had “previously produced all nonobjectionable responsive documents in its possession”. 8

To the

extent that defendants’ initial response was non-specific,
Defendant’s Response to Plaintiff’s Motion to Compel remedied
that lack of specificity by detailing the documents defendants
previously produced to plaintiff and the dates on which those
documents were produced and by attaching exhibits in support. 9
Moreover, contrary to plaintiff’s claim otherwise,
defendants repeatedly stated, both in their initial response to
plaintiff’s interrogatories as well as in their response to
Plaintiff’s Motion to Compel, that “[t]o the extent any
documents identified by [plaintiff] were not produced . . .
7

Plaintiff’s Objections (Document 56) at page 11.

8
Answers and Objections of R.L. Reppert, Inc. Defendants to
Plaintiff’s First Set of Interrogatories (Document 52-5) at pages 3-4; see
Plaintiff’s Objections at page 11.
9

Defendants’ Response (Document 53) at pages 5-7, 9, 19-20, 43-44.

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[defendants] do not have any such documents.” 10

Plaintiff

himself recognized that “[s]uch a response” –- the response
plaintiff did, in fact, receive -- “would be more than
sufficient”. 11
For the foregoing reasons, and for the reasons
articulated in footnote three of my September 30, 2014 Order, I
respectfully suggest that it would be appropriate for the United
States Court of Appeals for the Third Circuit to affirm that
Order, overruling Plaintiff’s Objections to paragraph two of
United States Magistrate Judge Henry S. Perkin’s December 3,
2013 Order.

_/s/ JAMES KNOLL GARDNER_____
James Knoll Gardner
United States District Judge

Date:

October 31, 2016

10

Answers and Objections of R.L. Reppert, Inc. Defendants to
Plaintiff’s First Set of Interrogatories (Document 52-5) at pages 3-4.
11

Plaintiff’s Objections (Document 56) at page 11.

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