United States District Court, N.D. Texas, Wichita Falls Division
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
O'CONNOR UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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.
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).
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 ...