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Iron Workers Local 12 Pension Fund v. Catskill Mountain Mechanical

August 8, 2008

IRON WORKERS LOCAL 12 PENSION FUND, ET. AL., PLAINTIFF,
v.
CATSKILL MOUNTAIN MECHANICAL, LLC; BRENDA SHIELDS, INDIVIDUALLY AND AS OFFICER OF CATSKILL MOUNTAIN MECHANICAL, LLC; MARTIN SHIELDS, INDIVIDUALLY AND AS MANAGING AGENT OF CATSKILL MOUNTAIN MECHANICAL, LLC; AND MARTIN G. SHIELDS D/B/A PLAINT MAINTENANCE SERVICES, INC. DEFENDANTS.



The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge

MEMORANDUM-DECISION AND ORDER

On April 23, 2007, Plaintiffs commenced this action against Defendants, pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 et seq. Dkt. No. 1, Compl. The action is brought by fiduciaries of employee benefit plans for monetary and injunctive relief to redress violations of certain provisions which require employers to timely remit contributions to establish and maintain an ERISA plan. Id. An Answer with a Counterclaim was filed on May 21, 2007, Dkt. No. 8, to which Plaintiffs filed a Reply to Defendants' Counterclaim on June 4, 2007, Dkt. No. 9.

The matter currently before this Court is Plaintiffs' Motion to (1) strike Defendants' Answer, (2) compel Defendants to produce their books and records, (3) direct Defendants to pay reasonable attorney fees and expenses for the filing of the Motion, and (4) amend the Uniform Pretrial Scheduling Order in order to extend the dates for completing discovery and filing dispositive motions. Dkt. No. 17, Pls.' Mot. to Strike/Compel, dated May 23, 2008. Defendants oppose the Motion. Dkt. No. 19, Defs.' Opp. to Mot., dated July 3, 2008. We granted Plaintiffs permission to file a Reply, Dkt. No. 21, which they did on July 11, 2008, Dkt. No. 22.

I. HISTORY

A. Pretrial Litigation

On September 7, 2007, the Rule 16 Conference was held by telephone. During that Rule 16 Conference, the Court and the parties discussed in detail the joint Civil Case Management Plan, Dkt. No. 11, in order to determine whether the proposed deadlines were realistic.*fn1

The Court accepted the parties' proposed dates, Dkt. No. 12, Min. Entry, dated Sept. 7, 2007, and a Uniform Pretrial Scheduling Order (UPTSO) was issued setting the discovery deadline as April 1, 2008, and the final date to file dispositive motions by July 15, 2008, Dkt. No. 13.

On March 20, 2008, Plaintiffs asked this Court to intervene on a discovery dispute. Dkt. No. 14, Pls.' Lt.-Mot. Upon completion of the telephone conference with the parties, the Court amended the UPTSO to extend the discovery deadline until June 6, 2008. Dkt. No. 16, Text Order, dated Mar. 31, 2008. This Text Order noted that Defendants "have been extremely tardy in responding to discovery demands," and therefore, all objections were waived. Id. Moreover, we set dates certain for the service of responses and documents: (1) Rule 26(a)(1) Statement and written responses to Plaintiffs' Demands were due on or before April 10, 2008, and (2) production of the documents on May 1, 2008. Id. Lastly, if Defendants failed to comply with that Text Order, we gave Plaintiffs license to file a motion for sanctions without seeking further court permission. Id. Based upon this Order and Defendants' alleged failure to comply, Plaintiffs have filed this Motion.

B. Discovery History

There is no material dispute as to the pretrial litigation history. On December 19, 2007, Plaintiffs served Defendants with their Request for Production of Documents and a Request to Admit, along with a Deposition Notice. That Request for Production of Documents was amended on January 9, 2008. Repeated letters and calls were made in order to induce Defendants to respond to the Demands and to provide a Rule 26(a)(1) Statement. Dkt. No. 17-2, Jennifer A. Clark Aff., dated May 28, 2008, at ¶¶ 3-4.

After the Court intervened and issued a Text Order directing Defendants' compliance with Plaintiffs' Demands and the mandates of FED. R. CIV. P. 26, on April 10, 2008, Defendants provided written Responses and their Rule 26(a)(1) Statement. A week later, Plaintiffs alerted Defendants that the Responses were inadequate. Therefore, Defendants provided an Amended Written Response and documents. Within this Written Response, Defendants informed Plaintiffs that additional responsive documentation was available for inspection at 13880 S R 93, West Coxsackie, New York 12192. On May 13, 2008, Plaintiffs visited this site to inspect Defendants' documents but found the production to be woefully lacking and so informed Defendants of this shortfall by a letter, dated May 23, 2008. Dkt. No. 17-2, at ¶¶ 7-12.*fn2 On the same day, a Motion to Strike and Compel was filed.

Defendant Martin G. Shields avers that on "June 1, 2008, prior to Defendants' receiving Plaintiffs' Motion, Defendants supplied Plaintiff's attorney's office with additional documentation responsive to Plaintiffs' demands." Dkt. No. 19, Martin G. Shield. Aff., dated June 26, 2008, at p. 4. Plaintiffs acknowledge receiving a box of documents on June 2, 2008. Dkt. No. 22, Jennifer A. Clark Aff., dated July 11, 2008, at ¶ 8. From the Plaintiffs' perspective, this additional disclosure was still incomplete, and so advised Defendants by forwarding a letter to them listing in particular detail what remained outstanding. Dkt. No. 19, at ¶ 5, Ex. A., Pls.' Lt., dated June 18, 2008.

Presumably critical to effectuating full disclosure, Shields now advises all that (a) Catskill Mountain Mechanical, LLC did not file corporate tax returns and it went out of business in 2007, and (b) Plant Maintenance Services Inc., did not exist in 2005 and was initiated in the latter part of 2006. Dkt. No. 19 at ¶¶ 6-13.

Plaintiffs remain unsatisfied with Defendants' latest round of disclosure and find all of the disclosure thus far wanting. Dkt. No. 22 at ΒΆ 9. They are still awaiting cancelled checks and check stubs for both ...


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