United States District Court, M.D. Florida, Ocala Division
AMERICAN HOME ASSURANCE COMPANY, a New York corporation Plaintiff,
WEAVER AGGREGATE TRANSPORT, INC., BEACON INDUSTRIAL STAFFING, INC., THE FARMERS AND MECHANICS BANK and BIS GROUP HOLDINGS, INC. Defendants/Third Party Plaintiff SALVATORE MANZO and SALCOR PROPERTIES, INC. Third Party Defendants
R. LAMMENS United States Magistrate Judge
the Court is a motion to compel filed by Judgment Creditor
Weaver Aggregate Transport Inc. (Weaver) in this proceedings
supplementary action, (Doc. 363) to which third-party BIS
Group Holdings, Inc./Beacon Tristate Solutions (BIS) has
responded (Doc. 365). After taking the motion under
advisement (Docs. 366, 369), the motion is now ripe. I submit
that the motion is due to be granted to the extent set forth
The Proceedings Supplementary Background
case has a rather protracted underlying history. For purposes
of the instant motion, however, it suffices to say that
cross-plaintiff Weaver was awarded judgment and
attorney's fees against cross-defendant Beacon Industrial
Staffing, Inc. (Beacon) for a total of over
four-hundred-thousand dollars. (Docs. 237, 329).
obtaining a writ of execution against Beacon (Doc. 340),
which remains unexecuted (Doc. 342), Weaver filed a Motion to
Institute Proceedings Supplementary alleging that Beacon was
unable to fulfill the outstanding payments as it had
fraudulently transferred its assets to BIS, which is
allegedly Beacon's alter ego. (Doc. 343). Weaver asserts
that BIS was incorporated in 2010 and that Beacon transferred
its assets to BIS sometime after that. (Doc. 343 at
according to Weaver, Beacon and BIS share the same physical
address and each have one-thousand shares of stock. (Doc. 343
at ¶19). Weaver further asserts that “BIS”
is an acronym for “Beacon Industrial Staffing;”
that BIS does business under the name “Beacon”
(e.g., BIS's website provides this email address:
email@example.com); that Beacon's former chief
operating officer, Salvonte Manzo, was listed (at the time
BIS was incorporated) as the president of BIS; and that BIS
has attempted to capitalize upon the goodwill associated with
Beacon's name. (Doc. 343 at ¶¶19-20). The Court
granted Weaver's motion and impleaded BIS, beginning
proceedings supplementary pursuant to Florida Statute §
56.29 and Federal Rule of Civil Procedure 69. (Doc. 348 at
then moved to dismiss the supplementary proceedings. (Doc.
360). BIS argued, in part, that Weaver had failed to meet the
requirements of Florida's recently amended statute, Fla.
Stat. § 56.29, which governs supplementary proceedings
in aid of execution of judgment. (Doc. 360 at 3).
Court rejected BIS's arguments, found that Weaver had
complied (or at least substantially complied) with §
56.29 (or that section's previous version), denied the
motion to dismiss, and allowed BIS thirty days to show why
the judgments at issue should not be levied and executed
against it. (Doc. 360 at 7-8). BIS then responded to the
order to show cause and asked the Court to reconsider the
above-mentioned order arguing that Weaver has presented no
evidence that BIS has committed any wrongdoing-i.e., BIS
asserted that Weaver has not produced evidence that it
fraudulently received assets from Beacon or that it is
Beacon's alter ego. (Doc. 361 at 2-3). BIS also argued
that it has been denied due process here. (Doc. 361 at 3-6).
Court, again, rejected BIS's effort to dismiss this
action. (Doc. 364). In denying the motion for
reconsideration, the Court noted that the time for
presentation of evidence had not yet come and that, to date,
there had been no infringement on BIS's due process
rights. Also in that order, the Court designated this
proceeding as a “Track Two” case under the Local
Rules and directed the parties to meet and confer and then
file a Case Management Report. (Doc. 364 at 4).
The Motion to Compel
days before the Court designated this case under Track Two,
Weaver filed the instant motion. (Doc. 363). In dispute are
twelve document requests.
to Weaver, the discovery sought relates to its claims that
Beacon fraudulently transferred its assets to BIS and that
BIS is Beacon's alter ego. The disputed requests seek
BIS's client, employee, and officer lists; financial and
tax documents; asset lists; and other
to the motion was evidence that BIS had declined to produce
any documents and, instead, objected to eleven of the twelve
requests and responded to one request (Request 7) stating
that it held no responsive documents. (Doc. 363-2 at 1-2).
The objections to each request are the same: the requests,
according to BIS, are “overbroad, unduly burdensome,
and not reasonably calculated to lead to admissible evidence,
” with the exception that one of the requests (Request
8) is also vague. (Doc. 363-2). BIS then responded to the
motion, argued that Weaver lacked grounds to propound such
discovery as Weaver could not recover its judgment from BIS
(who is impleaded as a third party here), and noted several
purported reasons why Weaver's motion fails to set forth
a sufficient basis for relief. (Doc. 365 at 2-5).
Court then, given the case's procedural posture, took the
motion under advisement. (Doc. 366). Indeed, based on the
Track Two designation (and noting that the parties had not
yet, at that time, filed their case management report), the
Court afforded the parties an opportunity to discuss the
disputed discovery during their case management conference
and commanded Weaver to notify the Court of what discovery
issues, if any, remained. (Doc. 366).
has now filed a response to that order. (Doc.
369). Weaver's response, which includes
apparent emails between counsel (Docs. 369-1-5), shows that
the parties made some headway in narrowing the focus of the
discovery dispute before me.
Weaver agreed to narrow all of its requests to 2009 onward,
which is one year before BIS's incorporation, as opposed
to 2005. (Compare Doc. 363 at ¶4 with
Doc. 369 at ¶13). Second, Weaver also agreed to remove
subsections “a” and “b” from the
eleventh and twelfth requests. (Doc. 369 at ¶13).
third, but no less importantly, the email correspondence
attached to Weaver's response indicates that Requests 3,
10, 11, and 12 are now moot. For Request 3, the email
correspondence shows that, according to BIS's counsel,
“BIS does not have employees beyond its
officers.” (Doc. 369-5 at 1). As to Request 10,
BIS's counsel states that BIS owns no real property.
(Doc. 369-5 at 2). And as to Requests 11 and 12, BIS's
counsel states that “BIS does not possess documents or
communications related to Beacon Enterprises, Inc., Beacon
Industrial Staffing, Inc., or Better Integrated Systems,
Inc.” (Doc. 369-5 at 2). Thus, the remaining
requests at issue-for purposes of the motion before the
Court-are Requests 1, 2, 4-6, 8, and 9.