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United States v. Cabelka

United States District Court, N.D. Texas, Wichita Falls Division

June 21, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
LARRY CECIL CABELKA, Defendant.

          ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          REED O'CONNOR UNITED STATES DISTRICT JUDGE

         The 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 No. 227).

         I. BACKGROUND

         Plaintiff 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.

         Plaintiff 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. 231.[1] 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.

         In 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.

         II. LEGAL STANDARD

         The 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).

         III. ANALYSIS

         The 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 ...

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