Judge grants motion for Wellington Concrete to produce documents in ERISA case

By Kyla Asbury | Jun 19, 2018

ST. LOUIS – A federal judge granted a motion to compel post-judgment discovery in a lawsuit over alleged violations of the Employment Retirement Income Security Act (ERISA).

ST. LOUIS – A federal judge granted a motion to compel post-judgment discovery in a lawsuit over alleged violations of the Employment Retirement Income Security Act (ERISA).

The U.S. District Court for the Eastern District of Missouri stated that the defendant, Wellington Concrete, failed to respond to the motion and now that the time to file has passed, the court will grant the motion.

U.S. District Judge Charles A. Shaw authored the memorandum and order, which was filed on June 6.

The plaintiffs, including Construction Industry Laborers Pension Fund, filed the complaint against Wellington in 2015, alleging that it violated two provisions of ERISA by not abiding by the terms of a collective bargaining agreement in several ways.

Two months after the complaint was filed, a joint motion to stay was filed by both parties while an audit of Wellington’s records was performed. In May 2016, the order states the parties reached a settlement and filed a stipulation of dismissal in the case.

The plaintiffs filed a motion to enforce settlement against Wellington in August 2016, which was granted by the court in December 2016. Wellington had paid the first installment but failed to pay any remaining installments of the settlement.

The plaintiffs continued to attempt to retrieve the judgment from Wellington and served a subpoena on one of its organizers, Timothy Benden, in 2017. Benden attended the deposition but refused to answer 40 of the 42 questions asked of him, only stating his name and that he did not recognize the subpoena, the order states.

The plaintiffs then filed the motion to compel Nov. 9, 2017, asking the court to compel Benden to answer the other 40 questions that he previously refused to do so under the guise that he was asserting the privilege under the Fifth Amendment of the U.S. Constitution.

Shaw wrote in the order that since Benden was subpoenaed as an agent of the company, “the collective entity doctrine prevents Mr. Benden from asserting the privilege of self-incrimination.”

The judge ordered that the motion is granted and that Wellington is ordered to reimburse the plaintiffs for costs of Benden’s deposition and costs from filing the motion to compel.

U.S. District Court for the Eastern District of Missouri-Eastern Division case number: 4:15-cv-00804

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