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Plastipak Packaging, Inc. v. Depasquale

January 27, 2009

PLASTIPAK PACKAGING, INC., PLAINTIFF,
v.
FREDERICK PETER DEPASQUALE, DEFENDANT.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM ORDER

Pending before the Court is the MOTION FOR LEAVE OF COURT TO PERMIT EXECUTION UPON FUNDS TRANSFERRED TO LIFE INSURANCE POLICY (Document No. 153) which was filed by Plaintiff Plastipak Packaging, Inc. ("Plastipak") in March 2008. Shortly thereafter, Defendant filed a response and Plastipak filed a reply (Document Nos. 155, 156). The case was then stayed at the joint request of the parties for six months while they negotiated a stipulation of facts. After the joint Stipulation of Facts was filed on October 10, 2008, the parties have engaged in a second round of briefing (Document Nos. 165, 166, 167, 170). Also pending is the MOTION FOR ENTRY OF CASE MANAGEMENT ORDER (Document No. 171), which was filed by Plastipak at the conclusion of the second round of briefs. Plastipak has also filed two supplements to the Motion for Entry of Case Management Order (Document Nos. 172, 174) and Defendant has filed a Response (Document No. 173). The motions are ripe for disposition.

Procedural History

This case started as a vendor/customer dispute but has evolved into a tortuous, decade-long effort by Plastipak to satisfy the judgment it obtained against Frederick Peter DePasquale ("Mr. DePasquale" or "Defendant"). Proceedings have occurred in both federal and state trial and appellate courts. The present skirmish commenced with the filing of a Motion for Leave to Permit Execution Upon Funds Transferred to Life Insurance Policy by Plastipak in March 2008. The parties thoroughly briefed the issues (Document Nos. 153, 155, 156). On April 9, 2008, soon after the conclusion of the initial briefing, the Court issued an Order to schedule oral argument "unless the parties acknowledge and agree that an evidentiary hearing to resolve factual disputes is necessary in order to rule on the pending motion...." During a telephone conference on April 11, 2008, counsel for both parties requested that the oral argument be postponed indefinitely so that the parties could attempt to stipulate to the relevant facts. Some six months later, on October 10, 2008, the parties filed a Joint Motion for Proposed Briefing Schedule (Document No. 158) and a Stipulation of Facts (Document No. 159). In a revised Joint Motion, which was granted by the Court, the parties proposed that briefing be completed by December 11, 2008. Neither party informed the Court that further factual development was necessary, nor did either party object to the content of the Stipulation of Facts.

In accordance with the parties' joint briefing schedule, Plastipak filed a brief in support of the motion for leave to execute on the life insurance policy (Document No. 165), DePasquale filed a brief in opposition (Document No. 166), Plastipak filed a reply brief (Document No. 167), and DePasquale filed a sur-reply brief (Document No. 170). On December 23, 2008, eight days after filing its Reply Brief, Plastipak filed the pending Motion for Entry of Case Management Order (Document No. 171), which has led to additional submissions by each side (Document Nos. 172-174). As may be gleaned by the above recitation, this case has been tenaciously litigated.*fn1

Motion for Entry of Case Management Order

As an initial matter, the Court must address Plastipak's motion to reopen discovery. Plastipak cites Fed. R. Civ. P. 43(c) for the proposition that the Court may set forth a schedule for further discovery, briefing and an evidentiary hearing. In essence, Plastipak argues that the legal issues which govern the ownership of the funds at issue are dependent upon the intent of the parties and therefore, that it should be entitled to depose Mr. and Mrs. DePasquale. In the alternative, Plastipak seeks a stay pending resolution of the action it recently filed in the Pennsylvania state court. Defendant has consistently resisted such discovery and maintains that it is not necessary. However, Defendant submitted an Appendix to its Brief in Opposition which contains certain exhibits (a deed, a complaint and two docket sheets) that were not included in the parties' Stipulation of Facts. Similarly, Plaintiff submitted a deed with its Reply Brief.

Federal Rule of Civil Procedure 43(c) states, in relevant part: "When a motion relies on facts outside the record, the court may hear the matter on affidavits or may hear it wholly or partly on oral testimony or on depositions." District courts have broad discretion in evaluating such requests and may "turn a deaf ear" where the request for an evidentiary hearing is not timely requested. See Sunseri v. Macro Cellular Partners, 412 F.3d 1247, 1249-50 (11th Cir. 2005).

In April 2008, the parties jointly requested a postponement so that they could attempt to agree on the relevant facts. Subsequently, in October 2008, the parties jointly filed a Stipulation of Facts and proposed a briefing schedule to finally resolve the pending motion. See Reply Brief at 5 n.5 (during status conference, parties agreed to proceed to develop a stipulated factual record). Neither side notified the Court that their Stipulation of Facts was inadequate or that further factual development would be necessary. In particular, Plastipak did not contend that it was necessary to take depositions of the DePasquales. It was not until afterthe filing of its Reply Brief that Plastipak sought to reopen discovery. This request was not timely. Moreover, given the litigious history of these parties, it is unlikely that further discovery, briefing and an evidentiary hearing would be consistent with the "just, speedy, and inexpensive determination" of this action. Fed. R. Civ. P. 1. The Court will decide this action in accordance with the stipulated factual record and briefing schedule which were jointly agreed upon by the parties. The Court will not consider the supplemental materials submitted by either party.

Accordingly, the MOTION FOR ENTRY OF CASE MANAGEMENT ORDER (Document No. 171) is DENIED.

Motion for Leave to Execute

The Court turns now to the substantive dispute. The factual background is taken from the Stipulation of Facts. The Court will consider the arguments raised in the parties' second round of briefs (Document Nos. 165, 166, 167, 170), which are based on the stipulated facts.

On May 6, 2002, a final judgment was entered in Plastipak's favor against Mr. DePasquale after a jury trial in the amount of $767,393.62 plus interest at the rate of 6% from December 10, 2001. Apparently, Mr. DePasquale has no assets which Plastipak can attach and execute upon to satisfy its judgment. However, Mr. DePasquale is the sole owner of a single-premium life insurance policy (the "Penn Mutual Policy"), which was issued on January 15, 1985 with his wife as the designated beneficiary. By Order dated July 18, 2002, this Court (through the Honorable Robert J. Cindrich) ordered that Plastipak "shall take no steps to execute on or garnish the [Penn Mutual Policy] without first seeking leave of this court." Subsequently, the United States Court of Appeals for the Third Circuit affirmed that a Pennsylvania statute prohibits Plastipak from executing upon the life insurance policy directly, but held "that once funds have been removed from the life insurance policy by [Mr. DePasquale]," Plastipak is "entitled to execute on those funds removed as loans."

Dating back to no later than October 1998, Mr. DePasquale had withdrawn funds from the Penn Mutual Policy in the form of loans totaling at least $784,000. The policy loan funds were deposited into a joint checking account held by Mr. DePasquale ...


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