United States District Court, E.D. Texas, Marshall Division
DARRELL FLORENCE, DERRICK FOSHEE, RANDALL WILLIS, DARRYL SPEER, COREY GRAY, CODY WHITTEN, DARIEN MORSE, DON ZUCCA, MARK WORSHAM, ANGELA HUTCHINSON, RICHARD SCHMIDT, RICHARD DOMINQUEZ, CHRISTOPHER JAEGAR, ARMANDO SANCHEZ, JOSHUA REBER, ADRIAN BOWIE, ROLLIN SHAW, ANTONIO LLANO, JESSICA CASTOR, JESSICA KUESTER, JAMES WILLIS, Plaintiffs,
LEGACY MEASUREMENT SOLUTIONS, INC., LEGACY MEASUREMENT HOLDINGS LLC, A FOREIGN LIMITED LIABILITY COMPANY; WDE JWM AGGREGATE, LLC, A FOREIGN LIMITED LIABLILITY COMPANY; EDELMAN & GUILL ENERGY L.P., II, A FOREIGN LIMITED PARTNERSHIP; WHITE DEER ENERGY, L.P., II, A FOREIGN LIMITED PARTNERSHIP; AND WHITE DEER ENERGY, L.P. III, A FOREIGN LIMITED PARTNERSHIP; Defendants.
MEMORANDUM, OPINION AND ORDER
GILSTRAP UNITED STATES DISTRICT JUDGE.
the Court is Plaintiffs Darrell Florence, Derrick Foshee,
et al.'s (collectively, the
“Plaintiffs”) Motion to Compel (the “Motion
to Compel”). (Dkt. No. 40.) Having considered the
Motion to Compel and for the reasons set forth herein, the
Court is of the opinion that the Motion to Compel should be
and hereby is GRANTED-IN-PART and
case arises under the Worker Adjustment and Retraining
Notification Act of 1988, 29 U.S.C. §§ 2101-2109
(the “WARN Act”). (Id. at 1.) The
Plaintiffs in this case allege that Legacy Measurement
Solutions, Inc. (“LMS”) failed to give the
required WARN Act notice to the Plaintiffs before shuttering
two of its plants. (Id. at 1.) LMS is currently
undergoing Chapter 7 bankruptcy proceedings in the Southern
District of Texas. In re Legacy Measurement Solutions,
Inc., No. 19-32238 (Bankr.S.D.Tex. 2019). Given
LMS's current financial situation, the Plaintiffs are
attempting to recover from the Defendants on the grounds
that the Defendants are considered an “employer”
under the WARN Act. (Dkt. No. 40 at 2.) Given the posture of
this case, the Court and the Parties agreed that the case
should proceed in a staggered fashion-first, determining what
defendants may be “employers” under the WARN Act,
and second, addressing the merits of the case. (Dkt. No. 38.)
current Motion to Compel relates to discovery addressing the
first stage of this case. Plaintiffs are requesting this
Court to compel the production of five categories of
documents: (1) LMS's own documents, (2) documents related
to “business activity” by and between LMS and
Defendants from 2015-2019, (3) documents references by other
documents but not produced, (4) emails and correspondence
relating to LMS and pled defenses, and (5) property, tax, and
bank records of Defendants.
LMS's Own Documents.
first to Plaintiffs' request for LMS's own documents,
Plaintiffs argue that the Defendants have failed to produce
LMS's own documents despite being obligated to do so.
(Dkt. No. 40.) Plaintiffs argue that LMS's corporate
parent LMH and WDII (who owns 100% of the stock of LMS) have
control over LMS, and as such, should have access to all of
LMS's documents. (Id. at 4.) Plaintiff continues
that given this “control, ” LMH and WDII are
obligated to produce LMS's documents under Fed.R.Civ.P.
34. (Id. at 5.) Defendants respond that they do not
have access to the documents because LMS is undergoing
bankruptcy proceedings. (Dkt. No. 43 at 2.) Defendants argue
that as a result of the bankruptcy proceedings any control
that LMH or WDII could have had over LMS's documents has
been lost and given over to the bankruptcy estate and
trustee. (Id. (citing 11 U.S.C. § 542(a)
(requiring an entity to deliver to the trustee, property in
the entity's possession, custody, and control upon filing
of the bankruptcy petition)).)
the facts of this case and the law on the matter, the Court
agrees with the Defendants. Given LMS's status as
undergoing Chapter 7 bankruptcy, all of LMS's property
including documents are under the exclusive control of the
bankruptcy trustee. See 11 U.S.C. § 542(a)
(requiring the debtor to turn over all property within the
debtor's possession, custody, and control to the
bankruptcy trustee upon the filing of the bankruptcy
petition); Keller v. Blinder, Robinson & Co.,
Inc., 140 B.R. 790, 794 (D. Colo. 1992) (“Property
of the estate includes books and records produced during a
corporation's existence. See 11 U.S.C. §
521(4) (requiring the debtor to turn over to the trustee
‘any recorded information, including books, documents,
records, and papers, relating to the property of the
estate').”). As such, the Court agrees that the
Defendants cannot produce that which is not under their
control. Thus, this portion of the Motion to Compel is
DENIED. The Plaintiffs should undertake to
acquire these records from the bankruptcy trustee for LMS.
Should the bankruptcy trustee for LMS be nonresponsive or
refuse to produce the requested records, then the Plaintiffs
can file a motion to compel in the bankruptcy proceeding.
Documents Related to “Business Activity” by and
between LMS and Defendants from 2015-2019.
next to Plaintiffs' request for documents related to
“Business Activity, ” Plaintiffs argue that they
are seeking to discover documents relating to “business
activities between defendants and LMS” as
these documents help determine whether the Defendants are
considered “employers” under the WARN Act. (Dkt.
No. 40 at 6 (citing “RFP 9”).) Defendants respond
that the request is overly broad and that without a
definition for “business activity” they cannot
determine if responsive documents exist. (Dkt. No. 43.)
Plaintiffs cite “RFP 9, ” the Plaintiffs did not
attach the actual Requests for Production that were served in
this case-which the Court assumes “RFP”
references. (Dkt. No. 40 at 6.) Luckily, however, the
Defendants did attach the actual Requests for Production.
(Dkt. No. 43-1.) Request for Production 9 reads “[a]ll
documents relating to or concerning any business activity
conducted by and between YOU or
YOUR subsidiaries and LMS between 2015 and 2019.”
(Id. at 2 (emphasis added).) The wording of this
request, thus, not only requests documents of business
activity between the Defendants and LMS, but it also requests
documents of the business activity “by”
Defendants with no nexus to LMS. As such, it is overly broad.
said, however, the Plaintiffs represent that Defendants have
failed to produce any documents responsive to this request.
As such, this portion of the Motion to Compel is
GRANTED-AS-MODIFIED but only with respect to
documents, if any, that have a nexus, either indirectly or
directly, to LMS. Where no such nexus exists, this request is
Documents references by other documents ...