December 20, 2013
HAROLD B. WILSON, GRACY SEDLAK, Plaintiffs,
JOSEPH FLETCHER, ORA THOMAS FLETCHER, Defendants.
MEMORANDUM AND ORDER
CHERYL R. ZWART, Magistrate Judge.
The court has reviewed the documentation from Joseph Fletcher, Gracy Sedlak, Harold Wilson, and Ora Thomas Fletcher produced in response to the Memorandum and Order dated September 25, 2013, (Filing No. 63). During that hearing, the court agreed to review the facts reflected in those documents. The court's interpretation of those facts is outlined in the attached "Questions to Parties." The court also agreed to recommend terms for final settlement of this case. The court's proposed settlement terms are outlined in the attached "Settlement Agreement Questions, " and the explanation provided below. Although substantial documentation was provided to the court, the undersigned magistrate judge cannot track all the receipts and distributions of Harold Wilson's money by Joseph Fletcher. And the remaining questions will likely never be answered no matter how much work the parties and court invest into the project. Without substantial expenditures on expert witnesses, subpoenas, and depositions, the money trail cannot be fully understood and even then, questions will likely remain. The court therefore recommends to the parties that they settle this case under the following terms:
Joseph Fletcher and Ora T. Fletcher will jointly and severally owe to Harold Wilson the amount of $25, 000 for funds given to Ora T. Fletcher without Harold Wilson's permission. Jointly and Severally means either Joseph Fletcher and Ora T. Fletcher can pay it all back, or they can share that responsibility: But either way, they both owe Harold Wilson for the $25, 000 of Wilson's funds received and used by Ora T. Fletcher.
In addition to the $25, 000 owed for funds given to Ora T. Fletcher without Wilson's permission, Joseph Fletcher would be required to pay:
$26, 000 to Gracy Sedlak, which represents the amount of Wilson's money that Joseph Fletcher was told to give to Gracy Sedlak, but which Joseph Fletcher kept for himself instead.
$36, 300 to Harold Wilson, which represents the total amount of Wilson's money received by Joseph Fletcher through checks from the MidWestOne Bank, ($44, 516.00), plus one-half of the distributions for which there is no documentation indicating who received the money (1/2 of $13, 988.67), plus the money that is simply missing with no documentation whatsoever, ($10, 786.78), minus the $26, 000 amount Joseph Fletcher owes to Gracy Sedlak.
Based on the court's review of the documents and the parties statements, it is likely some of the money documented as distributed by Joseph Fletcher, but to unknown persons, was given out with Wilson's permission. Some was not. There is no way to figure out which of these expenditures were authorized. So in the interest of resolving the case now rather than face the same unanswered questions at trial, the parties should split that amount ($13, 988.67), with Joseph Fletcher owing half of it to Harold Wilson.
But as to the money which is simply missing, Joseph Fletcher should be required to pay all of that back. By way of explanation:
Until Joseph Fletcher opened a separate account for Wilson's money at the MidWestOne Bank, he deposited Wilson's money in his own account.
At the time the new account was set up in April 2011, there remained $34, 456.75 of Wilson's money that Joseph Fletcher had received but has no record of distributing to anyone on Wilson's behalf.
Joseph Fletcher transferred only $1800.00 of this money into the MidWestOne account when that account was opened.
&bull: Joseph Fletcher later moved money into the MidWestOne Bank account on two occasions without receiving a new institutional distribution from Wilson; on April 25, 2011 in the amount of $10, 500, and on June 9, 2011 in the amount of $10, 400. Presumably these amounts were from Wilson's money which remained in Joseph Fletcher's account even after the MidWestOne Bank account was opened.
&bull: So of the $34, 456.75 that remained in Joseph Fletcher's account when the MidWestOne Bank account was opened, it appears more than $11, 000 was never transferred out of that account to the MidWestOne Bank account, and there is no record of what happened to it. This amount likely includes the $10, 786.78 of Wilson's money that is missing. It appears Joseph Fletcher kept it and as such, he should be ordered to pay it back.
If the parties do not settle the case under the terms suggested, the court will need to decide which facts are disputed and, if any, set this case for trial. The parties will be required to respond to statements outlined in the attached Questions to Parties" so it can determine how to best proceed if this case is not fully settled.
IT IS ORDERED:
1) The parties shall respond to each statement posed in the attached "Questions to Parties, " and on or before January 20, 2014, they shall mail their completed and signed responses to the court. As to the Questions to Parties:
a. If the statement is admitted, the party must circle "Admit."
b. If the statement is denied, the party must circle "Deny, " and explain why the statement is denied.
c. The parties are warned that if they deny a statement without providing a reason, the court may ignore the denial and consider the statement admitted.
d. The parties are further warned that they must make reasonable efforts to find the information, including within the documentation provided to the court, before denying a statement for lack of information. If a statement is denied for lack of information, the party denying the statement must explain what efforts were made to find the answer before denying the statement. If the court considers those efforts insufficient, the court may consider the statement admitted.
e. The parties' answers must be signed. The parties are advised that by signing the document and returning it to the court for filing, they are providing statements to the court under oath.
f. The failure to answer any question within the "Questions to Parties" will be deemed an admission as to that question.
g. The failure to sign the "Questions to Parties, " or to timely return the answers to the court, will be deemed an admission as to every statement in the document.
h. The "Questions to Parties" must be completed and signed, or they will be deemed admitted as to all questions, even if the answering party agrees to settle the case under the terms proposed by the court.
i. The completed and signed "Questions to Parties, " shall be returned to the undersigned magistrate judge's chambers by mailing it to:
2. The parties shall answer and sign the "Settlement Agreement Questions" attached hereto, and on or before January 20, 2014, they shall mail their completed and signed response to the court. As to Settlement Agreement Questions:
a. By completing the document to indicate they agree to the settlement terms, signing the document, and returning it to the court, the signing party agrees to be bound by the settlement terms, the case will be settled if the opposing parties also agree to those terms, and a judgment will be entered accordingly.
b. If the signing party does not agree to the settlement terms, or the opposing parties do not agree to the terms, the case is not settled and the court will resolve all or part of the case on the parties' responses to the "Questions to Parties, " or it will set the case for trial.
c. Irrespective of whether the party agrees or disagrees with the court's proposed settlement terms, the party must timely answer, sign, and return the Settlement Agreement Questions to the court. The failure to do so will result in an order imposing monetary sanctions on the non-complying party.
d. The completed and signed "Settlement Agreement Questions, " shall be returned to the undersigned magistrate judge's chambers by mailing it to:
3. All documents provided to the court by the defendants were delivered to Gracy Sedlak. Sedlak is not only a named plaintiff, but has the authority to act as plaintiff Harold Wilson's power of attorney. Accordingly, Harold Wilson's motion for production, (Filing No. 65), is denied as moot.
4. In light of the "Questions to Parties" served by the court on all parties, plaintiff Harold Wilson's motions to compel and his requests for admissions, (Filing Nos. 62 and 69), are denied as moot.
5. Harold Wilson's motions for partial summary judgment and for injunctive relief, (Filing Nos. 64, 68, and 70), are denied without prejudice to re-filing, if necessary, after the court and all parties receive responses to the "Questions to Parties, " and the "Settlement Agreement Questions."