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.
R. LAMMENS, United States Magistrate Judge
are a number of motions pending in this case related to
Weaver Aggregate Transport, Inc.'s (“Weaver”)
efforts to collect judgments it obtained in the underlying
case against Beacon Industrial Staffing, Inc.
(“Beacon”). The Court held a hearing on January
30, 2018, to discuss all pending matters and to determine the
best way to move this case forward.
February 2014, Weaver obtained a final judgment against
Beacon for $145, 000.00. (Doc. 237). In February 2015, Weaver
obtained an additional judgment against Beacon for $231,
507.02 in attorney's fees, costs, and pre and
post-judgment interest. (Docs. 328, 329). These two
judgments, both of which are unsatisfied, are the basis for
Weaver's current collection efforts. In July 2015, Beacon
was administratively dissolved (although argument is made
that it ceased operations as early as 2008). Weaver
subsequently shifted its collection efforts to related third
party entities. In November 2015, Weaver filed a motion to
institute proceedings supplementary and to implead BIS Group
Holdings, Inc. (“BIS”), claiming that Beacon
fraudulently transferred its assets to BIS and that BIS is
the mere alter ego of Beacon. (Doc. 343). The Court granted
the motion and BIS was implead. (Doc. 348). Now, Weaver seeks
to implead another third party, Beacon Tri-State Staffing,
Inc., on the same theory that it is the mere alter ego of
Beacon and BIS. (Doc. 397). Weaver explains that it will also
seek to hold this new party “liable for the unsatisfied
judgments it holds against Beacon on the grounds that Beacon
Tri-State Staffing, Inc., is a mere pass-through corporation
from BIS and is therefore the alter ego of Beacon and/or that
Beacon, through BIS, fraudulently transferred Beacon's
assets to Beacon Tri-State Staffing.” (Doc. 397 at
pending are discovery motions related to Weaver's largely
unsuccessful efforts to obtain discovery from (and about)
Beacon. To that end, Weaver has filed a motion for spoliation
of evidence, seeking to sanction BIS (as the alter ego of
Beacon) for failing to maintain Beacon's records. (Doc.
380). Weaver has also attempted to obtain Beacon's
records from attorney Claude M. Harden, III, who represented
Beacon in the underlying action. Weaver subpoenaed Attorney
Harden's law firm requesting his entire file, and
Attorney Harden has asserted privilege as to more than 300
documents. Weaver has moved to compel production of the
allegedly privileged documents. (Docs. 396, 405). Attorney
Harden has also filed a motion to withdraw from further
representation of Beacon in this action because it has been
dissolved. (Doc. 377). In addition to these discovery
disputes, BIS filed a motion for summary judgment arguing
that Weaver has failed to create any genuine issues of
material fact as to the alleged fraudulent transfer of assets
from Beacon to BIS or on the theory that BIS is an alter ego
of Beacon. (Doc. 394).
a complaint, Weaver's claims of alter ego and fraudulent
transfer seem to have blended together. While not intending
to change the law of the case, where it was determined no
complaint was required under the prior version of Fla. Stat.
§ 56.29, the posture of the case has somewhat changed.
Weaver now wishes to implead another entity. And second, it
has become more apparent that under this alter ego theory,
Weaver seeks to impute liability for the underlying judgments
directly on the impleaded parties, as distinguished from
liability merely for the value of transferred assets. See
e.g., Doc. 397 at ¶6 (explaining that it seeks to
hold Beacon Tri State Staffing, Inc. “liable for the
unsatisfied judgments it holds against Beacon on the grounds
that Beacon Tri-State Staffing, Inc. is a mere pass-through
corporation from BIS and is therefore the alter ego of Beacon
and/or that Beacon, through BIS, fraudulently transferred
Beacon's assets to Beacon Tri-State Staffing.”).
The relief Weaver seeks is different than the more discrete
relief sought under the Court's ancillary jurisdiction in
National Maritime Services, Inc. v. Straub, 776 F.3d
783 (11th Cir. 2015) (finding ancillary
jurisdiction where judgment creditor sought to disgorge
fraudulently transferred asset from implead third-party).
That is, there is a difference between proceeding under
Florida Statutes § 56.29 and Chapter 726 to undo a
fraudulent transfer of assets and, what seems to be the
primary relief sought here, seeking a judgment of liability
against the implead parties for existing federal judgments.
Compare National Maritime Services, Inc. v. Straub,
776 F.3d 783 (11th Cir. 2015), and Branch
Banking and Trust Co. v. Hamilton Greens, LLC et al,
2016 WL 3251165 (S.D. Fla. June 14, 2016), and Reiseck v.
Universal Communications of Miami, Inc., 141 F.Supp.3d
1295 (S.D. Fla. August 18, 2015), with Peacock v.
Thomas, 516 U.S. 349 (1996), and Jackson-Platts, v.
General Electric Capital Corp., 727 F.3d 1127
(11th Cir. 2013).
there is overlap in establishing a fraudulent transfer of
assets and establishing an alter ego claim, whether the Court
has subject matter jurisdiction to consider each claim has
not been fully established. Nor, frankly, has personal
jurisdiction-a separate inquiry, but also one with
overlapping factors. On this issue of personal jurisdiction,
the Court did not weigh whether BIS rebutted the allegations
of alter ego because, as it noted, BIS focused on the lack of
a tort in Florida under the long-arm statute. (Doc. 360 at
6). And now, BIS points to evidence that could be used to
refute the alter ego claim-i.e., assets were not transferred
from Beacon, BIS (unlike Beacon) did not hold itself out as a
PEO, and the ownership structure of BIS (5%, 5%, 90%) is
different than Beacon (50%, 50%).
new effort to implead another corporation-Beacon Tri-State
Staffing, Inc.- (with a similar name and Salvatore
Manzo's involvement), will likely result in another
series of motions about personal jurisdiction, perhaps
subject matter jurisdiction, and ultimately motions to
dismiss and for summary judgment. The Court endeavors to
avoid inconsistent results and duplicative effort, and thus,
will manage the case as to both implead parties at the same
standard for impleading another third-party into the already
open proceedings supplementary is not high. Consistent with
the requirements of Fla. Stat. § 56.29(2), Weaver's
counsel filed an affidavit identifying property not exempt
from execution in the possession of Beacon Tri-State
Staffing, Inc. (Doc. 397, Exhibit C). While BIS disputes the
evidentiary basis for the claim against Beacon Tri-State
Staffing, Inc. (Doc. 406), “[a] judgment debtor is not
required to make a prima facie showing that the third party
holds assets subject to a judgment prior to impleading that
party.” Bodywell Nutrition, LLC v. Fortress
Systems, LLC 846 F.Supp.2d 1317 at 1325 (S.D. Fla.
Weaver's motion to implead Beacon Tri-State Staffing,
Inc. (Doc. 397) is GRANTED. As a complaint
is required now statutorily for claims against Beacon
Tri-State Staffing, Inc. brought under Chapter 726, and
because no objection to adding BIS to the complaint was made
at the hearing, Weaver shall file a supplemental complaint
setting forth all claims against both BIS and Beacon
Tri-State Staffing, Inc. within fourteen (14)
days of this Order and serve the supplemental
complaint as provided by the rules of civil procedure.
See Fla. Stat. §56.29(9).
respect to the other pending motions, BIS's motion for
summary judgment (Doc. 394) and Weaver's motion for
sanctions for spoliation of evidence (Doc. 380), they are
DENIED without prejudice to renewal after
the supplemental ...