United States District Court, D. Nebraska
GOSSETT, UNITED STATES MAGISTRATE JUDGE
matter is before the court on the Motion to Compel Production
of Documents (Filing No. 158) and Motion for Leave to Serve
Additional Post-Judgment Interrogatories (Filing No. 161)
filed by the plaintiff, Marjorie Tramp. For the reasons that
follow, the court will deny the motion to compel and grant
the motion for leave to serve additional interrogatories.
19, 2015, a jury returned a verdict in favor of Tramp on her
claim for retaliation under the Age Discrimination in
Employment Act (“ADEA”) (29 U.S.C. § 626, et
seq.) against Associated Underwriters, Inc.
(“AU”). (Filing No. 130). Judgment was entered in
favor of Tramp on June 22, 2015, in the amount of $257,
361.56, plus post-judgment interest at the rate of .27
percent per annum. (Filing No. 135). On October 16, 2015,
Plaintiff was also awarded $132, 198.80 in attorney’s
fees and $6, 522.12 in costs. (Filing No. 154). AU asserts
Tramp has been provided hundreds of pages of documents
confirming AU has no assets to pay Tramp’s judgment.
(Filing No. 169 at p. 3). The present motions concern
Tramp’s post-judgment discovery in aid of execution of
November 25, 2015, Tramp served post-judgment requests for
production of documents on AU. (Filing No. 160-3). Tramp
requested AU’s financial statements, including balance
sheets, from 2009 until the present. (Filing No. Filing No.
160-3 at p. 4). Tramp asserts the documents produced by AU on
January 8, 2016, were incomplete and did not contain a
balance sheet for June 30, 2014. (Filing No. 158).
February 25, 2016, Tramp served AU a notice of intent to
issue subpoena duces tecum pursuant to Rule 45 of the Federal
Rules of Civil Procedure on four banks and on Relinco, Inc.
(“Relinco”), all non-parties. (Filing No. 157).
Relinco is a registered trade name of AU and was formerly the
“breadwinn[ing]” division of AU that “made
all of the money at [AU].” (Filing No. 160-7; Filing
No. 167-1 at CM/ECF p. 51). Greg Gurbacki, the president and
owner of AU, filed Relinco’s articles of incorporation.
(Filing No. 160-8 at pp. 1-4). The subpoena to Relinco seeks
its corporate bylaws and amendments, corporate and
shareholder meeting minutes, balance sheets, monthly account
statements, general ledgers, chart of accounts, trial
balances for every account listed on each general ledger,
income and expense statements, all documents listing sources
of income, including client or customer lists from the years
2011 to 2016, all documents created in the initial
organization of the corporation and operation of the
corporation prior to 2011, and all documents evidencing the
ownership of proprietary rights to the trade name Relinco or
the service mark of Relinco. (Filing No. 157 at p. 2).
Relinco and AU objected to the subpoena on the bases that the
requests were overbroad, unduly burdensome, and not
reasonably calculated to lead to the discovery of relevant
admissible evidence. (Filing No. 160-2). Tramp filed the
motion to compel seeking an order compelling Relinco to
produce documents responsive to the subpoena and an order
compelling AU to produce its balance sheet for June 30, 2014.
(Filing No. 158).
also filed a motion for leave to serve additional
interrogatories. (Filing No. 161). Tramp served post-judgment
interrogatories on AU on November 25, 2015. (Filing No. 161).
On January 8, 2016, AU returned its responses to
Tramp’s interrogatories, objecting to each
interrogatory beyond Interrogatory No. 5(f) because Tramp had
exceeded the maximum number of permissible interrogatories.
(Filing No. 163-2). Tramp requests permission to serve AU
sixteen (16) additional numbered interrogatories, or forty
(40) total interrogatories including subparts. (Filing No.
Rule 69(a) of the Federal Rules of Civil Procedure, a
judgment creditor or a successor in interest whose interest
appears of record may obtain discovery from any person,
including the judgment debtor. Fed.R.Civ.P. 69(a)(2).
Discovery devices in the state and federal court systems
include, but are not limited to, debtor’s examinations,
depositions upon oral examination or written questions,
written interrogatories, requests for the production of
documents or things, permission to enter upon land or other
property for inspection and other purposes, physical and
mental examinations, requests for admission, and subpoenas.
United States v. Johnson, No. 8:09CV146, 2010 WL
1949680, at *1 (D. Neb. May 14, 2010).
allows judgment creditors to conduct full post-judgment
discovery to aid in executing judgment, and the plaintiff
“ ‘is entitled to a very thorough examination of
the judgment debtor.’ ” Credit Lyonnais, S.A.
v. SGC Intern. Inc., 160 F.3d 428, 430 (8th Cir. 1998).
“The procedure on execution--and in proceedings
supplementary to and in aid of judgment or execution--must
accord with the procedure of the state where the court is
located, but a federal statute governs to the extent it
applies.” Fed.R.Civ.P. 69(a)(1); see Neb. Rev.
Stat. §§ 25-1564 through 25-1580.
Motion to Compel
motion to compel requests this court compel AU to produce its
balance sheet as of June 30, 2014. (Filing No. 158). AU has
now provided the requested balance sheets to Tramp. (Filing
No. 170 at p. 1). Therefore, the court denies as moot the
motion to compel as to AU.
objects to Tramp’s motion to compel production of
documents on behalf of Relinco. “[An] adverse party has
standing to object to a third-party subpoena on grounds of
relevance or to protect a personal right or privilege in the
information requested.” Jenkins v. Pech, No.
8:14CV41, 2015 WL 728305, at *3 (D. Neb. Feb. 19, 2015). AU
has not asserted a personal privilege in the information
requested from Relinco and is therefore limited to objecting
to the subpoena’s relevance. See
Auto-Owners Ins. Co. v. Southeast Floating Docks,
Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005) (A party has
standing to move for a protective order if a third-party
subpoena seeks irrelevant information). “Parties may
obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and
proportional to the needs of the case[.]” Fed.R.Civ.P.
26(b)(1). Discovery, in aid of execution of a judgment, into
the assets of a nonparty to a suit is permissible where the
relationship between the judgment debtor and the nonparty
“is sufficient to raise a reasonable doubt about the
bona fides of any transfer of assets between them.”
Credit Lyonnais, S.A. v. SGC Int'l, Inc., 160
F.3d 428, 431 (8th Cir. 1998). “[A]sset discovery
should be tailored to the specific purpose of enabling a
judgment creditor to discover assets upon which it can seek
to execute a judgment and that the judgment debtor’s
discovery should not devolve into a fishing expedition for
irrelevant or cumulative information which does not advance
that purpose.” E.I. DuPont deNemours & Co.
v. Kolon Indus., Inc., 286 F.R.D. 288, 292
(E.D. Va. 2012). In Nebraska, a creditor may levy execution
on assets “transferred, concealed, or removed with
intent to hinder, delay, or defraud creditors[.]”
See Neb. Rev. Stat. §§ 36-703 to 36-708.
“A conveyance in fraud of creditors may be effected by
the organization of a corporation and the transfer of
property to it with intent to hinder, delay, or defraud
creditors.” First Nat. Bank of Omaha v. First Cadco
Corp., 203 N.W.2d 770, 778 (Neb. 1973).
relationship between Relinco and AU raises some doubts as to
the bona fides of the transfer of assets. AU sold Relinco for
$300, 000, on December 1, 2011, less than two months after
Tramp filed her complaint. (Filing No. 171-1; Filing No. 1).
The $300, 000 sales price was carried by AU as an account
receivable until June 30, 2014. Gurbacki, AU’s
president and sole shareholder, filed Relinco’s
articles of incorporation. Additionally, Relinco is a
registered trade name of AU. (Filing No. 160-8 at pp. 1-4;
Filing No. 160-7). Tramp should be permitted to perform some
discovery with respect to the formation of Relinco and any
transfer of AU’s assets to Relinco to determine whether
Relinco was formed with intent to hinder, delay, or defraud
creditors, to the extent that such discovery has not already
been provided to Tramp. However, without more evidence or
factual details tending to demonstrate that AU fraudulently
transferred its assets to Relinco with the intent to hinder
or delay creditors, the documents requested in the subpoena
to Relinco are not relevant at this time. Tramp broadly seeks
Relinco’s corporate bylaws and amendments, corporate
and shareholder meeting minutes, balance sheets, monthly
account statements, general ledgers, chart of accounts, trial
balances for every account listed on each general ledger,
income and expense statements, and all documents listing
sources of ...