United States District Court, E.D. Missouri, Eastern Division
ST. LOUIS LABOR HEALTHCARE NETWORK, et al., Plaintiffs,
LOUIS MAULL COMPANY, Defendant.
MEMORANDUM AND ORDER
D. NOCE, UNITED STATES MAGISTRATE JUDGE.
action is before the Court upon the motion of defendant Louis
Maull Company to continue a post-judgment deposition (Doc.
10) and plaintiffs' motion to compel the deposition (Doc.
13). Plaintiffs are the Trustees of the St. Louis Labor
Healthcare Network, an employee benefit plan. They brought
suit against defendant under Section 301 of the Labor
Management Relations Act of 1947 (“LMRA”), 29
U.S.C. § 185, and the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C.
§§ 1001, et seq., esp. § 1132, to enforce
contractually required payments to the plaintiff plan.
September 25, 2017, the Court entered a Consent Judgment
requiring defendant Louis Maull Company to make certain
payments to plaintiffs' plan. (Docs. 8 and 9). The
Consent Judgment also provides that “[i]f Defendant
fails to comply with [the payment schedule], the entire
judgment amount, less amounts paid, shall become immediately
due, and Plaintiffs shall be entitled to proceed with further
legal action, including execution on the judgment
balance.” (Docs. 8 and 9 at ¶ 3). The judgment
provides that “[w]ithin five days following
satisfaction of this Stipulation by Defendant, Plaintiffs
will dismiss this matter without prejudice.”
(Id. at ¶ 7).
defaulted on the Consent Judgment. Thereupon on October 16,
2017, plaintiffs issued their notice under Federal Rule of
Civil Procedure 69, intending to obtain information in aid of
executing on the Consent Judgment. Plaintiffs' Rule 69
Notice was directed to Louis Maull, Jr., in his capacity as
principal of defendant Louis Maull Company, to take his
deposition and requesting him to produce 11 categories of
documents. (Docs. 14-1, 14-2). Following an exchange of
information regarding the need to substitute Louis Maull V as
defendant's now current principal and sole director,
plaintiffs, on November 7, 2017, issued an Amended Notice to
Louis Maull V, to take his deposition on November 17, 2017,
and to receive the same documents as noticed previously.
November 16, 2017, the day before the scheduled deposition,
defendant filed its Motion to Continue the Rule 69
Deposition. (Doc. 10). The reason for the motion to continue
was that Louis Maull V was requested to appear at the
deposition in a personal capacity as well as in a corporate
one. (Id.). Counsel for defendant states he would
have a conflict of interest in representing both the
corporation and Louis Maull V personally, so Louis Maull V
needs time to obtain personal legal counsel. (Id.).
Defendant also states that it has provided plaintiffs with
all of the requested documents that it has, but not those
that pertained to Louis Maull V.
response indicates that defendant's counsel, William
Cooper, Esq., advised plaintiffs' counsel that defendant
would be engaging new counsel, Vince Vogler; that thereafter,
Mr. Cooper, apparently on behalf of Mr. Maull, advised that
Mr. Maull would not provide his personal documents and that
Mr. Maull would invoke the Fifth Amendment on questions to
him about his personal assets. (Doc. 14 at 2, Ex. 1 at
¶¶ 8, 9). Plaintiffs' response also indicates
that while defendant has produced some documents, it has
failed to produce its 2016 tax return and its records of
income received since January 2017 (Doc. 14 at 3), and that
Mr. Maull was unwilling to produce any personal documents.
Both defendant and Mr. Maull failed to appear at the
deposition and failed to produce any documents related to his
personal assets. (Doc. 14, Ex. 5).
Court notes that the record of this action indicates that
defendant Louis Maull Company remains represented by William
E. Cooper, Esq., and that no counsel has entered for Mr.
Louis Maull V.
rules for depositions and discovery are to be accorded a
broad and liberal treatment.” Credit Lyonnais, S.A.
v. SGC Intern., Inc., 160 F.3d 428, 430 (8th Cir. 1998)
(citations omitted). The right to conduct discovery applies
both before and after judgment: Federal Rule of Civil
Procedure 69 specifically provides that a party may obtain
post-judgment discovery “[i]n aid of the
judgment” according to the federal rules or the local
state court rules. Fed.R.Civ.P. 69(a)(2). Missouri's
Rules of Civil Procedure allow post-judgment discovery of
“matters . . . relevant to the discovery of assets or
income subject to . . . the satisfaction of judgments.”
Mo. R. Civ. P. 76.28. The Federal Rules of Civil Procedure
allow for depositions of almost anyone, including
corporations, who may provide relevant information.
this background, plaintiffs may conduct reasonable
post-judgment discovery to inquire into defendant Louis Maull
Company's assets. The company's failure to send a
representative to the deposition, as well as its failure to
make payments under the judgment, support plaintiffs'
motion to compel documents related to the company's
income and a deposition of its corporate representative.
As to a
deposition of and request for documents from Mr. Maull in a
personal capacity, the court believes that, as he is the
president and the sole director of the company (Doc. 14, Ex.
3), it is relevant to inquire into whether there has been a
transfer of assets between him and the company. Under Federal
Rule of Civil Procedure 30(b)(6), the choice of a
representative of the corporate party is for the corporation,
not the party that noticed the deposition. See Fed.
R. Civ. P. 30(b)(6) ("The named organization must then
designate one or more officers, directors, or managing
agents, or designate other person who consent to testify on
its behalf."). Mr. Louis Maull V is a not a party to
this judicial action, and the plaintiffs only issued a notice
of deposition to him for the defendant, not a subpoena for
him personally. See Fed. R. Civ. P. 30(a)(2). The
appropriate procedure to compel a nonparty to produce
documents is by subpoena. See Fed. R. Civ. P. 34,
45. If nonparties fail to produce the requested documents
after having been appropriately served with a subpoena, the
requesting party may then seek an order compelling
unless otherwise agreed by plaintiffs, defendant, and Mr.
Louis Maull V, IT IS HEREBY ORDERED that
defendant's motion to continue the deposition (Doc. 10)
is GRANTED in that a corporate designee must
appear for post-judgment deposition at a mutually agreeable
date and time not later than January 15, 2018.
IS FURTHER ORDERED that plaintiffs' motion to
compel (Doc. 13) is GRANTED in part in that
defendant must produce to plaintiffs' counsel, not later
than December 30, 2017, any as yet unproduced documents
relating directly to the defendant company, as set forth in
the Amended Notice of Rule 69 Deposition and Request for
Production of Documents ...