United States District Court, D. Colorado
REGIONAL DISTRICT COUNCIL, by and through Daniel S. Parker, in his representative capacity as President, DANIEL S. PARKER, in his representative capacity as President of Regional District Council, REGIONAL LOCAL UNION NO. 847, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL AND REINFORCING IRON WORKERS, AFL-CIO, by and through Donald A. Zampa, in his representative capacity as Administrator, DONALD A. ZAMPA, in his representative capacity as Administrator of Regional Local Union No. 847, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, AFL-CIO, REGIONAL DISTRICT COUNCIL WELFARE TRUST FUND, by and through its Board of Trustees, REGIONAL DISTRICT COUNCIL VACATION TRUST FUND, by and through its Board of Trustees, and REGIONAL DISTRICT COUNCIL TRAINING TRUST, by and through its Board of Trustees, Plaintiffs,
MILE HIGH RODBUSTERS, INC., Defendant.
Kristen L. Mix United States Magistrate Judge
matter is before the Court on The Reinforcing Company,
Inc.'s (“The Reinforcing Company”)
Motion to Quash FRCP Rule 45 Subpoena Issued to The
Reinforcing Company [#57] (the “Motion”).
Plaintiffs filed a Response [#59] in opposition to the Motion
[#57]. No. Reply was filed. The Court has reviewed the Motion
[#57], the Response [#59], the case record, and the
applicable law. Accordingly, the Court is fully advised in
the premises. For the reasons set forth below, the Motion
[#57] is DENIED.
January 2013, Plaintiffs filed suit against Defendant to
collect delinquent Employee Retirement Income Security Act of
1974 (“ERISA”) fringe benefit contributions.
Compl. [#1] at 6-9. In mid-2014, Defendant ceased
operations. Depo. of Brandon James Garcia [#59-2] at
In March 2015, the Court entered a $79, 079.87 default
judgment against Defendant. Recommendation [#44];
Order [#45]. To collect the judgment, Plaintiffs
attempted garnishment via Colorado State Bank and Wanzek
Construction, Inc. Writ of Continuing Garnishment
[#50]; Writ of Continuing Garnishment [#52]. These
attempts proved unsuccessful. Motion [#7] at 2;
Response [#59] at 1.
December 2018, Plaintiffs issued a Subpoena to Testify at a
Deposition in a Civil Action [#57-1] (the
“Subpoena”) to The Reinforcing Company. The
Subpoena requests that The Reinforcing Company, at the
deposition, produce a series of contract, financial,
property, and meeting records. Subpoena [#57-1] at
1, 6-7. In January 2019, The Reinforcing Company filed the
Motion [#57], requesting the Court quash the Subpoena [#57-1]
for four reasons:
 The [S]ubpoena and document request is not relevant to
the case at hand which involves a request for documents from
an entirely unrelated entity.  The [S]ubpoena on its face
shows no need for the documents since [The Reinforcing
Company] was formed after the judgment against Defendant was
entered[.]  The time covered in the [S]ubpoena request has
nothing to do with the time the Defendant operated.  The
burden of gathering the records over the period from 2016 to
2018 in the depth that the request is made imposes an undue
burden due to its lack of relevance to the time period the
Defendant operated in.
Motion [#57] at 3-4.
” the Response explains, “believe that [The
Reinforcing Company] is the alter ego of [D]efendant.”
Response [#59] at 4. In January 2016, Plaintiffs
deposed Brandon Garcia (“Mr. Garcia”).
Id.; Depo. of Garcia [#59-2] at 1.
Plaintiffs claim that Mr. Garcia's deposition
“established several connections, ” linking The
Reinforcing Company and Defendant. Response [#59] at
4. First, Mr. Garcia “was an owner [as well as] officer
of [D]efendant” and currently serves as The Reinforcing
Company's Superintendent. Response [#59] at 4;
Depo. of Garcia [#59-2] at 20, 77-78. Second, Mr.
Garcia's wife, Kristine Garcia, owns The Reinforcing
Company. Response [#59] at 4; Depo. of
Garcia [#59-2] at 14. Third, Mr. Garcia's father,
Bob Garcia, “worked in a supervisory role” for
Defendant and currently serves as The Reinforcing
Company's Operations Manager. Response [#59] at
4; Depo. of Garcia [#59-2] at 14, 25, 52. Finally,
Defendant and The Reinforcing Company engages in the
“same type of business, ” namely, reinforcing
concrete. Response [#59] at 4; Depo. of
Garcia [#59-2] at 23, 65.
to Plaintiffs, the “several connections” linking
The Reinforcement Company and Defendant “raise more
than a ‘colorable suspicion' that [The Reinforcing
Company] is the alter ego of [D]efendant.”
Motion [#57] at 5. Thus, Plaintiffs conclude, the
Motion [#57] “must be denied.” Id.
Rule of Civil Procedure 69(a)(2) provides that, “[i]n
aid of the judgment or execution, the judgment creditor . . .
may obtain discovery from any person-including the judgment
debtor-as provided in these [R]ules.” Indeed,
“all discovery procedures provided in the [R]ules are
available.” Fed.R.Civ.P. 69(a)(2) advisory
committee's note to 1970 amendment; see also Caisson
Corp. v. Cty. W. Bldg. Corp., 62 F.R.D. 331, 334 (E.D.
Pa. 1974) (“all the discovery devices of the Rules may
be used as in the progress of the action”). While,
“[o]rdinarily[, ] third persons can be examined only
about the assets of the judgment debtor and cannot be
required to disclose their own[, ] probing questioning is
allowed with regard to third parties with close ties to the
judgment debtor.” 12 Charles Alan Wright, Arthur R.
Miller, et al., Federal Practice and Procedure
§ 3014 (3d ed. 2019).
permit probing questioning of third parties, courts require a
“‘somewhat heightened showing of necessity and
relevance-i.e., at least some demonstration of
concealed or fraudulent transfers or alterego [sic]
relationship with the judgment debtor.'”
Mountain Dudes, LLC v. Split Rock, Inc., No.
2:08-cv-00940, 2013 WL 5435707, at *2 (D. Utah Sept. 29,
2013) (quoting Uniden Corp. of Am. v. Duce Trading Co.,
Ltd., No. 89-cv-0878E, 1993 WL 286102, at *1 (W.D.N.Y.
July 19, 1993)). The “somewhat heightened”
standard “does not require an actual finding of
alterego [sic] or fraud, ” only “evidence
sufficient to raise legitimate questions about the
relationship between the judgment debtor and the [third
party], and consequently, transactions between the
two.” Mountain Dudes, 2013 WL 5435707, at *2.
Any one piece of evidence, standing alone, “might not
be sufficient to make the requisite showing, ” however,
“the combination of [pieces of evidence] provide[s] a
basis for the [judgment] creditor's allegation of an
alter ego relationship sufficient to justify the requested
discovery.” Democratic Republic of Congo v. Air
Capital Grp., LLC, No. 12-Civ-20607-COOKE/TORRES, 2018
WL 324976, at *2 (S.D. Fla. Jan 8, 2018) (citing Trustees
of N. Fla. Operating Eng'rs Health & Welfare Fund v.
Lane Crane Serv., Inc., 148 F.R.D. 662, 664 (M.D. Fla.
the wide range of evidence sufficient to make “some
demonstration of concealed or fraudulent transfers or
alterego [sic] relationship, ” courts frequently cite
suspicious timing of the third party's formation,
similarity of the judgment debtor and third party's
businesses, overlap or close familial relationships between
the judgment debtor and third party's management, overlap
between the judgment debtor and third party's employees,
shared customers, as well as use of the same business
address, equipment, attorneys, and registered agents.
Mountain Dudes, 2013 WL 5435707, at *2-3; see,
e.g., Air Capital Grp., 2018 WL 324976, at *3
(judgment debtors and third parties shared principals, places
of business, and registered agents); Falicia v. Advanced
Tenant Servs., Inc., 235 F.R.D. 5, 9 (D.D.C. 2006)
(verdict against judgment debtor returned and third parties
formed on same day, judgment debtor and third parties
controlled by immediate members of same family, and third
party assumed judgment debtor's contractual obligations
on construction project); Lane Crane Serv., 148
F.R.D. at 664 (judgment debtor defunct within one month of
third party's formation, son of judgment debtor's
principal owned third party, judgment debtor and third party
used same address, engaged in same business, shared at least
one customer, and third party employed some of judgment
debtor's former employees); Magnaleasing Inc. v.
Staten Island Mall, 76 F.R.D. 559, 562 (S.D.N.Y. 1977)
(same individuals controlled judgment debtor and third
Rule 69(a)(2) permits the judgment creditor to “make a
broad inquiry to discover hidden or concealed assets of the
judgment debtor, ” finally, discovery must “be
pertinent to the goal of discovering concealed assets and not
be allowed to become a means of harassment of the debtor or
third persons.” Wright, Miller, et al., supra,
§ 3014 n.4 (citing ITOCHU Int'l, Inc. v. Devon
Robotics, LLC, 303 F.R.D. 229, 232 (E.D. Pa. 2014));
see also Caisson, 62 F.R.D. at 334. The Court may,
for good cause, “issue an order to protect a party or
person from annoyance, embarrassment, oppression, or undue
burden or expense” resulting from discovery.
Fed.R.Civ.P. 26(c)(1). With regard to undue burden,
specifically, the party seeking such an order bears the
“burden of showing facts justifying [the] objection by
demonstrating that the time or expense involved in ...