Opinion
Civil Action 1:21CV14 (KLEEH)
05-04-2022
BRIDGESTONE AMERICAS TIRE OPERATIONS, LLC, doing business as GCR Tires and Service, a Delaware corporation, Plaintiff, v. PRISTINE CLEAN ENERGY, LLC, a West Virginia Limited liability company, and WILLIAM K. ABRAHAM its personal guarantor, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR ORDER REQUIRING DEFENDANT TO APPEAR AND ANSWER DISCOVERY IN AID OF EXECUTION [ECF NO. 30]
THOMAS S. KLEEH, CHIEF JUDGE NORTHERN DISTRICT OF WEST VIRGINIA
Pending before the Court is Plaintiff Bridgestone Americas Tire Operations, LLC d/b/a GCR Tires and Service's Motion for Appointment of Special Commissioner to Conduct Proceedings Pursuant to W.Va. Code § 38-5-1 in Aid of Execution Against Defendant William K. Abraham [ECF No. 30]. For the reasons discussed below, the Court grants the motion.
I. BACKGROUND
On January 28, 2021, Plaintiff Bridgestone Americas Tire Operations, LLC d/b/a GCR Tires and Service (“Plaintiff”) filed a complaint against Defendants Pristine Clean Energy, LLC (“Pristine”) and William K. Abraham (“Abraham”) (together, “Defendants”) alleging breach of contract, unjust enrichment, and damages in the amount of $499,224.82. Compl., ECF No. 1. Plaintiff moved for summary judgment against Defendants, arguing that it is entitled to judgment as a matter of law because Defendants failed to respond to Plaintiff's requests for admission. ECF No. 18. Defendants' failure to respond to Plaintiff's requests for admission established a breach and damages owed by Pristine, or Pristine's guarantor, Abraham. ECF No. 18. The Court granted Plaintiff's motion and entered summary judgment for Plaintiff on the Complaint against Defendants, jointly and severally, in the total amount of $499,224.82. ECF No. 22. The Clerk entered judgment in favor of Plaintiff pursuant to the Memorandum Opinion and Order. ECF No. 23.
A writ of execution was issued by the Clerk of the Court to Defendants on December 15, 2021, and the United States Marshals Service served the writ of execution on February 14, 2022. ECF Nos. 27, 28, 29. The debtor, Defendant Abraham has not responded to the writ. Because the Plaintiff has not been able to secure goods or chattels to successfully satisfy its judgment, the plaintiff requests the issuance of a summons for Defendant Abraham to appear for deposition and produce the requested documents in aid of execution in accordance with federal and state law. ECF No. 30. Additionally, the plaintiff requests that a commissioner be named to facilitate discovery if necessary and that all costs and fees incurred in conducting such discovery be paid by Defendant Abraham. ECF No. 30.
II. LAW
Rule 69(a) of the Federal Rules of Civil Procedure governs the execution of judgments.
A money judgment is enforced by a writ of execution, unless the court directs otherwise. The procedure on execution-and in proceedings supplementary to and in aid of judgment or execution-must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies....In aid of the judgment or execution, the judgment creditor or a successor in interest whose interest appears of record may obtain discovery from any person-including the judgment debtor-as provided in these rules or by the procedure of the state where the court is located.Fed. R. Civ. P. 69(a). Pursuant to West Virginia Code § 38-5-1, a debtor may be required “to appear before a commissioner in chancery . . . to answer upon oath such questions as shall be propounded at such time and place by counsel for the execution creditor, or by the commissioner.” While the federal court system does not have a commissioner in chancery, see U.S. Foodservice, Inc. v. Almost Heaven Ribs, Inc., No. 3:11cv595, 2012 WL 1567189, *1, *2-3 (S.D. W.Va. Apr. 30, 2012), 28 U.S.C. § 636(b)(3) provides the magistrate judge, upon assignment, “additional duties as are not inconsistent with the constitution and laws of the United States.” Accordingly, the magistrate judge may conduct a hearing pursuant to West Virginia Code § 38-5-1 and Rule 69(a) of the Federal Rules of Civil Procedure and may also order the debtor to assign personal property to the United States Marshal for the purpose of satisfying a judgment. Chicago Pneumatic Tool Co. v. Stonestreet, 107 F.R.D. 674, 677 (S.D. W.Va. 1985).
III. DECISION
Pursuant to Rule 69(a) and Plaintiff's request, this Court appoints United States Magistrate Judge Michael J. Aloi to serve as a “commissioner” to conduct a hearing as described by West Virginia Code § 38-5-1. The Clerk is DIRECTED to issue a summons pursuant to Rule 4 of the Federal Rules of Civil Procedure upon Defendant William K. Abraham to appear before Magistrate Judge Aloi on May 18, 2022, at 2:45 p.m., at the Magistrate Judge's Courtroom on the Third Floor of the United States Courthouse, 500 West Pike Street, Clarksburg, West Virginia, to answer upon oath questions submitted by the plaintiff as Exhibit 1 to its motion and attached as Appendix 1 to this Memorandum Opinion and Order, and such further questions as shall be propounded by counsel for the plaintiff or by Magistrate Judge Aloi. The Clerk is DIRECTED to attach a copy of this Memorandum Opinion and Order and Appendix 1 to the summons issued to Defendant William K. Abraham.
At the hearing, Defendant William K. Abraham shall produce all documents relating to the discovery requests stated in Appendix 1 and convey or assign to the United States Marshal for the Northern District of West Virginia all money, bank notes, securities, evidence of debt or other personal property, tangible or intangible, as may be ordered by Magistrate Judge Aloi for the enforcement and payment of the judgment including interest and costs outstanding in the above matter.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Memorandum Opinion and Order to counsel of record and to United States Magistrate Judge Michael J. Aloi.