United States of America v. Cabelka

Filing 238

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: The Court reviewed de novo those portions of the FCR to which Plaintiff made objections. For the following reasons, the Court OVERRULES Defendant's objections (ECF No. 236 ), ADOPTS the Magistrate Judge's FCR as the Findings and Conclusions of the Court, and GRANTS Plaintiff's motion to compel (ECF No. 227 ). (Ordered by Judge Reed C. O'Connor on 6/21/2018) (skg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
LARRY CECIL CABELKA,
Defendant.

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Civil Action No. 7:16-cv-00126-O-BP

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge made Findings, Conclusions, and a Recommendation
(“FCR”) (ECF No. 232) in this case. The FCR recommended that this Court grant Plaintiff United
States of America’s (“Plaintiff” or the “Government”) Motion to Compel Defendant Larry Cecil
Cabelka (“Defendant” or “Cabelka”) to Respond to Plaintiff’s First Set of Post-Judgment
Interrogatories and Request for Production of Documents and to Produce the Requested
Documents (ECF No. 227). Defendant filed objections to the FCR (ECF No. 236). The Court
reviewed de novo those portions of the FCR to which Plaintiff made objections. For the following
reasons, the Court OVERRULES Defendant’s objections (ECF No. 236), ADOPTS the
Magistrate Judge’s FCR as the Findings and Conclusions of the Court, and GRANTS Plaintiff’s
motion to compel (ECF No. 227).
I.

BACKGROUND
Plaintiff moved for summary judgment in this case, and the Magistrate Judge subsequently

issued an FCR recommending that this Court grant Plaintiff’s motion. Plaintiff filed objections to
the FCR, and upon de novo review, the Court accepted the Magistrate Judge’s FCR and entered
judgment against Defendant. Plaintiff then served Defendant with post-judgment interrogatories

and a request for production of documents, but Defendant has not responded to those requests and
the deadline for doing so has now passed. Pl.’s Mot. Compel 1–2, ECF No. 227.
Plaintiff served Defendant with its discovery requests by United States mail, Federal
Express, and e-mail on March 14, 2018, and emailed those requests to Defendant’s appellate
attorney, who acknowledged receipt on March 14, 2018. Pl.’s Reply 2, 5, ECF No. 231; see Pl.’s
Exs., ECF No. 231-1. Plaintiff argues that it met and exceeded the requirement of Federal Rule of
Civil Procedure 5 to serve Defendant at his last known address—namely, P.O. Box 295, Megargel,
Texas 76370. Pl.’s Reply 4–5, ECF No. 231.1 Plaintiff further argues that the federal rules required
Defendant to respond to those discovery requests by April 16, 2018. Pl.’s Reply 4–5, ECF No.
231. Plaintiff now moves the Court to compel Defendant to respond to Plaintiff’s discovery
requests. Pl.’s Mot. Compel 1–2, ECF No. 227.
In response to Plaintiff’s motion to compel, Defendant argues that he did not receive notice
of the motion because he changed his e-mail address on file with the Case Management/Electronic
Case Files (CM/ECF) system and did not hear about the motion until he talked with his appellate
attorney. See Def.’s Resp., ECF No. 230. Defendant attached an affidavit to his response stating
that he changed his e-mail address after the Clerk administratively closed the case and that he
“tried to give the new email”—unsuccessfully—to the Clerk’s office. Id. at 3. Defendant’s
affidavit also states that he was first notified of Plaintiff’s motion to compel in May 2018, that he
understood he “would not receive any contact because the case was closed,” and that he has “no
authorization to discuss any matters involving Jackie Latimer”—an individual mentioned in
Plaintiff’s interrogatories. See id.
II.

LEGAL STANDARD

The signature lines on both Defendant’s response to Plaintiff’s motion to compel, and Defendant’s
objection to the instant FCR, both indicate that this is either his present or last known address. See Def.’s
Reps. 2, ECF No. 230; Def.’s Obj. 3, ECF No. 236.
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The prevailing party in litigation has the right to discover information pertaining to the
losing party’s ability to satisfy the judgment. See F.D.I .C. v. LeGrand, 43 F.3d 163, 172 (5th Cir.
1995) (“The scope of post-judgment discovery is very broad to permit a judgment creditor to
discover assets upon which execution may be made.”). In seeking discovery, the prevailing party
may follow the normal federal rules of procedure for compelling answers to pre-judgment
discovery in its post-judgment discovery requests. FED. R. CIV. P. 69(a). Therefore, as in pre-trial
discovery, if the losing party fails to answer those post-trial discovery requests, Federal Rule of
Civil Procedure 37(a)(3)(B) allows the prevailing party to move the Court to compel the losing
party to respond. Moreover, if the losing party does not state a timely objection to those discovery
requests, the losing party waives that objection “unless the court, for good cause, excuses the
failure.” FED. R. CIV. P. 33(b)(4).
III.

ANALYSIS
The Magistrate Judge found in his FCR that Defendant received due notice of Plaintiff’s

post-judgment discovery requests, has failed to respond or object to them, and has failed to show
good cause for not responding or objecting. See FCR 3, ECF No. 231. Accordingly, the Magistrate
Judge recommended in his FCR that this Court grant Plaintiff’s motion to compel Defendant to
respond to Plaintiff’s discovery requests. Id. Defendant makes six objections to the FCR:
1. Plaintiff’s interrogatories ask Defendant about assets belonging to other
people over whom Defendant has no control—specifically, Jackie Latimer. See
Def.’s Obj. 1, ECF No. 236 (citing Def.’s Resp., ECF No. 230). In Defendant’s
affidavit attached to his response to Plaintiff’s motion to compel, Defendant
stated that he had “no authorization to discuss any matters involving Jackie
Latimer. Def.’s Resp. 3, ECF No. 230.
2. The Fifth Circuit will likely reverse the judgment on appeal. Def.’s Obj. 2,
ECF No. 236.
3. Plaintiff did not give Defendant advance notice before filing its motion to
compel. Id. at 3.
4. Allowing Defendant to object to Plaintiff’s discovery requests will not
prejudice Plaintiff, but prohibiting Defendant from objecting would harm
Defendant if the case was later reversed on appeal. Id.

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5. Plaintiff did not properly serve Defendant with its discovery requests. Id.
at 2.
6. Defendant informed the Court that he had a new email address, but the Clerk
of the Court informed him that he would not need to update his email until his
appeal was completed. Defendant, who is pro se, relied on this statement. Id.
The Court will consider each of these objections in turn.
First, the fact that Plaintiff’s interrogatories concern assets belonging to Jackie Latimer, or
that Defendant has no control over Jackie Latimer or “authorization” to discuss Jackie Latimer’s
assets, does not mean that Plaintiff is wholly unable to respond to Plaintiff’s interrogatories.
Second, Defendant’s likelihood of success on appeal does not justify Plaintiff refusing to respond
to a proper discovery request or the Court refusing to compel Plaintiff to respond to them. Third,
Defendant was not entitled to advance notice before Plaintiff filed its motion to compel. Fourth,
the relatively greater harm to Defendant in finding that Defendant waived his objections to
Plaintiff’s discovery requests does not affect the Court’s determination whether Defendant in fact
waived his objections under the federal rules—for that inquiry, all that matters is whether
Defendant made a timely objection. Cf. FED. R. CIV. P. 33(b)(4) (“Any ground not stated in a
timely objection is waived unless the court, for good cause, excuses the failure.”). The Court
OVERRULES these objections.
The two remaining objections are that Plaintiff did not properly serve Defendant and that
Defendant attempted to provide the Clerk of the Court with an updated email but was instructed
by the Clerk to wait for the close of his appeal. The Court finds that Plaintiff served Defendant
with its discovery requests at Defendant’s last known address—P.O. Box 295, Megargel, Texas
76370. See Pl.’s Exs., ECF No. 231-1. Indeed, the signature lines in both Defendant’s response to
Plaintiff’s motion to compel, and Defendant’s objection to the FCR, both indicate that this is either
his present or last known address. See Def.’s Reps. 2, ECF No. 230; Def.’s Obj. 3, ECF No. 236.
The Court therefore finds that Plaintiff has properly served Defendant with its discovery requests.

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Cf. FED. R. CIV. P. 5(b)(2) (“A paper is served under this rule by . . . mailing it to the person’s last
known address—in which event service is complete upon mailing . . . .”). Because Plaintiff
properly served Defendant, Defendant’s objection that he unsuccessfully attempted to provide the
Court with a new email address is moot. The Court OVERRULES these remaining objections.
The Court finds that, because Defendant has not responded to Plaintiff’s discovery
requests, the Court has authority to compel a response to them. Cf. FED. R. CIV. P. 37(a)(3)(B)(iii)
(“A party seeking discovery may move for an order compelling an answer . . . if . . . a party fails
to answer an interrogatory submitted under Rule 33 . . . [or] fails to produce documents . . . .”).
The Court also finds that Defendant has not shown good cause for not responding to the requests
and has therefore waived any objection to them. Cf. FED. R. CIV. P. 33(b)(4) (“Any ground not
stated in a timely objection is waived unless the court, for good cause, excuses the failure.”).
IV.

CONCLUSION
The Court therefore OVERRULES Defendant’s objections to the Magistrate Judge’s

FCR. The Court ADOPTS the Magistrate Judge’s findings, conclusions, and recommendation,
and GRANTS Plaintiff’s motion to compel Defendant to respond to its post-judgment discovery
requests (ECF No. 227).
SO ORDERED on this 21st day of June, 2018.

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Reed O’Connor
UNITED STATES DISTRICT JUDGE

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