Case 3:11-cv-00041-CRW-TJS Document 1 Filed 04/06/11 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF lOWA
DAVENPORT DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
HILL COUNTRY FARMS, INC., d/b/a HENRY'S TURKEY SERVICE
Defendant.

§ § § § § § Civil Action No. § § § COMPLAINT AND § JURY TRIAL DEMAND § §

NATURE OF THE ACTION

This is an action under Title I of the Americans with Disabilities Act of 1990, as

amended (ADA), to correct unlawful employment practices on the basis of disability and to

provide appropriate relief to James Keith Brown and a class of other intellectually disabled

employees (hereafter "Aggrieved Individuals") who were adversely affected by such practices.

Specifically, the Plaintiff, United States Equal Employment Opportunity Commission (EEOC or

Commission), alleges that the Defendant, Hill Country Farms Inc., d/b/a Henry's Turkey

Service, (HCF/HTS) discriminated against James Keith Brown and other intellectually disabled

individuals in their employment by subjecting them to unlawful harassment, discriminatory

terms and conditions of employment and discriminatory wages in violation of the ADA.

JURISDICTION AND VENUE

1. Jurisdiction ofthis Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337,

1343 and 1345. This action is authorized and instituted pursuant to Section 107(a) of the

Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §12117(a), which incorporates by

Plaintiff's Original Complaint

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reference Sections 706(f)(l) and (3) of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-5(f)(l) and (3), and pursuant to Section 102 of the Civil Rights Act of 1991,42 U.S.C. §1981a.

2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Southern District of Iowa, Davenport Division.

PARTIES 3. Plaintiff, the Commission, is the agency of the United States of America charged with the administration, interpretation and enforcement of Title I of the ADA, and is expressly

authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Sections 706(f)(l) and (3) ofTitle VII, 42 U.S.C. § 2000e-5(f)(l).

4. At all relevant times, Defendant, Hill Country Farms Inc., d/b/a Henry's Turkey Service continuously conducted business in Muscatine County in the State of Iowa, and had at least fifteen (15) employees through at least February 6, 2009.
5. At all relevant times, Defendant, HCF/HTS, has continuously been an employer engaged in an industry affecting commerce under Section 101(5) of the ADA, 42 U.S.C.§

12111(5), and Section 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference Sections 701 (g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h).

6. At all relevant times, Defendant, HCF/HTS, has been a covered entity under Section 101(2) ofthe ADA, 42 U.S.C. § 12111(2).

STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, James Keith Brown, through his sister and legal representative, Sherri Brown, filed a charge with the Commission

Plaintiff's Original Complaint

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alleging violations of Title I of the ADA by Defendant HCF/HTS. All conditions precedent to

the institution of this lawsuit have been fulfilled.

8. At all relevant times, James Keith Brown and the Aggrieved Individuals have

been qualified individuals with a disability covered by Title I of the ADA, 42 U.S.C. §§ 12101 et

seq.

9.

Since at least February 2006, Defendant, HCF/HTS, engaged in unlawful

employment practices at its West Liberty, Iowa, location, in violation of Title I of the ADA, 42

U.S.C. §§ 12101 et seq. These practices include the following:

a. HCF/HTS subjected James Keith Brown and the Aggrieved Individuals to a hostile

work environment based on their intellectual disabilities. Specifically, Mr. Brown and the

Aggrieved Individuals were subjected to severe or pervasive unwelcome conduct, both verbal

and physical. This conduct included, but was not limited to, being subjected to derogatory and

humiliating name-calling based on their disability. The physical conduct included unwelcome

physical contact such as being hit and kicked by HCF/HTS employees responsible for

supervision. This treatment adversely affected the terms and conditions of employment of James

Keith Brown and the Aggrieved Individuals. Defendant further failed to enact effective

measures to prevent and correct such harassment.

b. HCF/HTS discriminated against James Keith Brown and the Aggrieved Individuals

with regard to the terms, conditions and privileges of their employment based on their disability.

This discriminatory treatment included, but was not limited to relegation to substandard living

conditions, inadequate attention given to illness and injuries, imposition of excessively harsh

discipline, restrictions on freedom of movement and communication, and discriminatory job

assignments. For example, at times disabled employees were subjected to mistreatment

Plaintiff's Original Complaint

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including, but not limited to being restrained or confined to rooms, being subjected to excessive punishment and being denied restroom breaks. Injuries and complaints of pain or requests for medical attention or doctor visits were ignored by Defendant in several instances.
c. HCF/HTS discriminated against James Keith Brown and the Aggrieved Individuals with regard to their wages and benefits based on their disability. Specifically, James Keith Brown and the Aggrieved Individuals were discriminated against when Defendant paid them wages of only $60 to $65 per month for working at least 35 per week. Defendant was able to pay these unconscionable wages by taking advantage of Mr. Brown and the Aggrieved Individuals' intellectual limitations. In addition to evidencing discriminatory treatment against disabled individuals, these wages were discriminatory when compared to the higher wages paid to non-disabled workers at the same facility who held the same or similar positions. Further Defendant's claims that HCF/HTS should be credited with offsets or credits to include exceptions allowed under federal minimum wage laws and, and the use of Social Security benefits, are not supported by accounting records, documents or other evidence of compensation sufficient to account for deficits in pay and total compensation.
10. The effect of the practices complained of in paragraph 9 above has been to deprive James Keith Brown and the Aggrieved Individuals of equal employment opportunities and to otherwise adversely affect their status as employees because of their intellectual disabilities.

11. The unlawful employment practices complained of in paragraph 9 above were intentional.
12. The unlawful employment practices complained of in paragraph 9 above were done with malice or with reckless indifference to the federally protected rights of James Keith

Plaintiff's Original Complaint

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Brown and the Aggrieved Individuals.

PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court:

A. Grant a permanent injunction enjoining Defendant, HCF/HTS, its officers,

successors, assigns, and all persons in active concert or participation with it, from discriminating

against any employees because of disability, by subjecting them to a hostile work environment, subjecting them to discriminatory terms and conditions of employment, by paying them discriminatory wages, and by engaging in any other employment practice which discriminates on the basis of disability;

B. Order the Defendant to make whole James Keith Brown and the Aggrieved

Individuals by providing appropriate back pay with prejudgment interest, in amounts to be

proved at trial, and other affirmative relief necessary to eradicate the effects of Defendant's

unlawful employment practices.

C. Order Defendant, HCF/HTS, and any successor employer to institute and carry

out policies, practices, and programs which provide equal employment opportunities for

qualified individuals with disabilities, and which eradicate the effects of its past and present

unlawful employment practices, including but not limited to training all managerial, supervisory and non-supervisory employees regarding the ADA and posting notices regarding its compliance

with the ADA. The EEOC seeks court and EEOC monitoring of Defendant's practices in the

future with regard to its treatment of disabled employees.

D. Order Defendant, HCF/HTS, to make whole James Keith Brown and the

Aggrieved Individuals by providing compensation for past and future pecuniary losses resulting

from the unlawful employment practices described in paragraph 9, including, but not limited to

Plaintiff's Original Complaint

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any relocation expenses, job search expenses, medical expenses, and/or value of other sources of income and benefits in amounts to be determined at trial.
E. Order Defendant, HCF/HTS, to make whole James Keith Brown and the Aggrieved Individuals by providing compensation for past and future non-pecuniary losses resulting from the unlawful practices complained of in paragraph 9 above, including, but not limited to, emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial;
F. Order Defendant, HCF/HTS, to pay James Keith Brown and the Aggrieved Individuals punitive damages for its malicious or reckless conduct, as described in paragraph 9 above, in amounts to be determined at trial;
G. Grant such further relief as the Court deems necessary and proper in the public interest; and
H. Award the Commission its costs. JURY TRIAL DEMAND
The Commission requests a jury trial on all questions of fact raised by its complaint.
Respectfully submitted, P. DAVID LOPEZ General Counsel JAMES L. LEE Deputy General Counsel

Plaintiff's Original Complaint

Regional Attorney Oklahoma State Bar No. 011782

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Dallas District Office 207 Houston, 3rd Floor Dallas, Texas 75202 (214) 253-2750 (telephone) (214) 253-2749 (facsimile)

Plaintiff's Original Complaint

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 Case 3:11-cv-00041-CRW-TJS Document 36 Filed 09/18/12 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
vs.

No. 3-11-cv-41-CRW-TJS
Ruling Granting Plaintiff’s Motion for Partial Summary Judgment

HILL COUNTRY FARMS, INC., doing business as Henry’s Turkey’s Services,

Defendant.

Plaintiff Equal Employment Opportunity Commission (EEOC) sued defendant

Hill Country Farms, Inc. d/b/a Henry’s Turkey Services (Hill Country Farms), alleging it

discriminated against James Keith Brown and other intellectually disabled individuals in their

employment by subjecting them to unlawful harassment, discriminatory terms and conditions of

employment, and discriminatory wages in violation of the Americans With Disabilities Act of

1990, as amended. 42 U.S.C. § 12117 (a). Jurisdiction is based on that federal statute. EEOC

on June 25, 2012 filed its motion for partial summary judgment on the wage claims only. Hill

Country Farms has filed no resistance or other document resisting the motion. During a

telephone status conference that the court held with counsel for the parties on September 13,

defendant’s attorney conceded no resistance had been filed.

The court grants the EEOC motion for partial summary judgment.

Summary Judgment Standards. “The court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled

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to judgment as a matter of law.” Fed R. Civ. P. 56 (a). “In applying this standard “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in the [non-movant’s] favor. Cross Medical Prod., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1302 (Fed. Cir. 2005)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.Ed. 2d (1986)). See also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)(on motion for summary judgment, the court views the evidence and any disputed factual issues in the light most favorable to the party opposing the motion). The court may not weigh the evidence nor make credibility determinations when evidence is in conflict. The court only determines whether there are any disputed issues, and , if so, whether those issues are both genuine and material. See Anderson, 477 U.S. at 252. But summary judgment is improper “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” See id. at 248.
EEOC has filed a Statement of Undisputed Facts (Docket #21-3, filed 6/25/12) that is not resisted; therefore that Statement establishes a factual basis on which the court now resolves the wage issue only. These fifty-five numbered paragraphs of facts fully support the court’s conclusion that EEOC is entitled to partial summary judgment against defendant Hill Country Farms establishing liability of defendant on all wage and damage issues before it.
The court now summarizes these dispositive facts, then the governing principles of law. Facts from Summary Judgment Record. 1. On February 24, 2009, James Keith Brown,
through his sister and legal representative, Sherri Brown, filed a charge with the EEOC’s Dallas District Office alleging disability discrimination by Hill Country Farms, Inc., in violation of the Americans with Disabilities Act of 1990.
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2. In the mid-1960’s, Hill Country Farms, a for-profit corporation, with its principal place of business located in Goldthwaite, Texas, began working with disabled men in a variety of agricultural activities.
3. Kenneth Henry, the owner of Henry’s Turkey Service, Inc., and T.H. Johnson jointly incorporated as Hill Country Farms, Inc. d/b/a Henry’s Turkey Service. Defendant uses the names “Hill Country Farms” and “Henry’s Turkey Service” interchangeably(hereinafter “HCF/HTS”).
4. By the late 1970’s, HCF/HTS began contracting with a turkey processing plant located in West Liberty, Iowa to provide the disabled men as workers on the plant’s turkey processing line.
5. From at least 2006 until February 7, 2009, the HCF/HTS disabled employees worked on the processing line, commingled with the plant’s non-disabled employees.
6. During the entire period they worked at the plant, the HCF/HTS employees were housed in a converted school house, known as “the Bunkhouse”, in Atalissa, Iowa, a few miles down the road from the plant where they worked in West Liberty, Iowa, until it was shut down in February of 2009 by the State of Iowa and the men were removed.
7. For more than thirty (30) years during which the disabled men were employed in Iowa, all of them were always paid in the same manner, using the same method of calculation, a cash payment of $65.00 per month.
8. HCF/HTS alleges that the disabled men were paid enough to constitute a legal minimum wage when the $65.00 per month was combined with provided “room and board” and “in kind care,” which the Defendant urges should be credited toward the wages.
9. All of the employees for whom the EEOC is seeking back wages received monthly deposits of Social Security and/or Supplemental Security Income (“SS and “SSI”) into their individual bank accounts located at Mills County State Bank in Goldthwaite, Texas.
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10. The defendant corporation, through its officer Jane Ann Johnson, was listed as the Designated Representative Payee on these accounts, with total control over the money in the accounts.
11. According to HCF/HTS, these Social Security funds were represented by HCF/HTS to have been used to “reimburse” the company for expenses the Defendant claims to have incurred by providing “board, lodging and other facilities” to the disabled employees.
12. HCF/HTS’s business activities in Iowa had been investigated previously by the United States Department of Labor’s Wage and Hour Division (“DOL/WHD”), including an investigation which concluded in 2003.
13. The DOL/WHD determined that HCF/HTS had violated the FLSA and instructed HCF/HTS regarding minimum wages, overtime, Section 3(m) credits and record keeping; however, despite the knowledge of these violations, and an agreement to comply with the wage laws, HCF/HTS never changed its pay practices.
14. At all times relevant hereto, HCF has been an enterprise engaged in commerce. 15. HCF/HTS is a for-profit corporation with its principal place of business located in Goldthwaite, Texas, and conducted business within the State of Iowa. 16. Beginning in the late 1970’s, Henry and T.H. Johnson negotiated with Louis Rich Foods to supply workers to work at the Louis Rich turkey processing plant in West Liberty, Iowa. 17. Over the years, the plant changed ownership several times, but HCF/HTS continued to provide workers throughout each change of ownership. 18. In 1996, HCF/HTS entered into a Contract with WLF, and per the Contract, HCF/HTS provided an adequate number of “Contractor’s employees” to perform services. 19. As part of their day-to-day operations, HCF/HTS determined which of the workers
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would be assigned to the facility for work. 20. HCF/HTS supervisory crew chiefs, not West Liberty Foods employees, directly
supervised the HCF/HTS workers on the processing line. 21. A few identified victims worked at the Bunkhouse rather than the plant, and HCF/HTS
was the company who determined which individuals worked at the plant versus the Bunkhouse. 22. HCF/HTS, through Kenneth Henry and T.H. Johnson, made the decisions regarding the
rate of pay for the disabled workers, the manner in which those workers were paid, and the manner in which they would be retired.
23. From 2006 to 2009, HCF/HTS disabled employees worked in the Evisceration Department of the turkey processing plant.
24. HCF/HTS employees were brought to the plant from the Bunkhouse in HCF/HTS vans driven by HCF/HTS crew chiefs.
25. HCF/HTS received over $500,000 annually in 2006, 2007, and 2008 from WLF in compensation for work performed by HCF/HTS employees on the line.
26. CF/HTS employees prepared time sheets and issued paychecks to the employees. 27. During 2006 to 2009, the disabled workers were listed as employees of HCF/HTS on documents submitted to the Texas Workforce Commission’s Unemployment Tax Services. Also during that time, HCF/HTS, as the stated employer of the disabled workers, withheld Social Security and Medicare taxes from the income of each listed individual. Also from 2006 to 2009, HCF/HTS, as the stated employer of the disabled workers, completed Form W-2 Wage and Tax Statements for each listed individual. 28. HCF/HTS was paid for the work performed by its employees, as WLF compensated HCF/HTS in full for all work performed by the HCF/HTS employees on its line.
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29. HCF/HTS was the employer of all the disabled workers, regardless of whether they were working at the West Liberty Foods processing plant or at the Bunkhouse.
30. When T.H. Johnson became ill in 2005, Henry became more actively involved in the business in Iowa, including handling the financial responsibilities of the operation. Henry was scheduling the work of supervisory personnel at the Bunkhouse in Atalissa, Iowa and hiring of workers in Iowa was subject to Henry’s approval.
31. From 2006 until the Atalissa Bunkhouse was shut down on February 7, 2009, Henry became increasingly responsible for the Iowa business, including becoming more involved with the supervisors Randy and Dru Neubauer, and cutting the hours supervisors working at the Bunkhouse.
32. In 2008, officers of the company, Jane Ann Johnson and Henry jointly made the decision to stop providing workers to the WLF processing plant and to shut down the facility in Atalissa, Iowa.
33. Defendant’s Iowa Supervisor, Randy Neubauer, filled out time records for all of the disabled employees, whether the disabled employees worked at the plant or at the Bunkhouse. The records were then sent to the main office in Goldthwaite, Texas, where they were transcribed onto HCF/HTS monthly time sheets.
34. The thirty-two (32) employees represented by the EEOC, who had been residents working in the state of Iowa for at least 30 years, should have been paid according to Iowa law governing minimum wages, -- a wage rate of at least $5.15 per hour from February 24, 2007 through March 31, 2007, after which they should have been paid at a wage rate of at least $6.20 per hour between April 1, 2007 and December 31, 2007. From January 1, 2008 through February 7, 2009, employees should have been paid an hourly wage rate of $7.25, as determined by Iowa law.
35. The federal hourly minimum wage in 2007, applicable in Iowa prior to April 1, 2007,
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was $5.15. 36. Each time sheet completed by HCF/HTS personnel was stamped with lines marked
“Actual Income,” “in kind Room & Board,” “in kind Care,” and “Total.” HCF/HTS represents that the “Total” amount reflected the wages “paid” to the disabled employees each month, either in cash or the cost to HCF/HTS of furnishing the disabled employees with room, board and care. The amounts were the same for each disabled employee.
37. Even when HCF/HTS’s time sheets reflected that the employees worked over 40 hours in a week, the stated wage on the time sheet always remained the same; there was never an amount listed as overtime.
38. Only the $65.00 per month was reported to government agencies as wages paid. 39. Based on the calculations performed by the U.S. Department of Labor, HCF/HTS failed to pay its disabled employees sufficient wages to meet the minimum wages and overtime amounts required by law. 40. Based on DOL/WHD calculations for both plant and Bunkhouse disabled employees, HCF/HTS was determined by the government to owe the disabled employees unpaid minimum wages and overtime compensation in the amount of $518,727.88 for the period from November 25, 2007 to February 7, 2009. 41. The wage rates paid to West Liberty Foods employees who worked in the same or similar positions and job categories as the disabled workers are set forth in WLF wage tables or “Production” tables, which contain job categories and corresponding pay rates. 42. The total of lost wages for the disabled HCF/HTS workers during the relevant two-year period was calculated by EEOC to be $762,760.30 (not including prejudgment interest) under “EEOC Pay Model A,” utilizing the Iowa minimum wage figures.
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43. The total of lost wages for the disabled HCF/HTS workers during the relevant two-year period was calculated by EEOC to be $1,374,266.53 (not including prejudgment interest) under “EEOC Pay Model B,” utilizing the comparative or market wage rates paid to similarly-situated or comparably qualified workers having equivalent tenure with West Liberty Foods.
44. HCF/HTS has represented that for a period of time, which would include 2006 to 2009, the company was allowed to pay wages to its disabled workers under FLSA Section 29 U.S.C.A. 214(c), a provision, which under specific circumstances, may allow for the payment of modified or subminimum wages based on lower worker productivity.
45. The U.S. Department of Labor Wage and Hour Division investigated HCF/HTS pay practices through the date of the cessation of business in February 2009, including defenses for exceptions to the FLSA. Such pay practices were concluded to be unlawful by the DOL/WHD and a federal district court.
46. The disabled plant workers of HCF/HTS performed as productively and effectively as non-disabled workers doing the same jobs at the turkey processing plant.
47. As a result of the DOL/WHD investigation of HCF/HTS pay practices, including the period from 2006 to February 2009, DOL/WHD denied HCF/HTS claims for credits pursuant to 29 U.S.C.A. §203(3)(m), toward the wages paid, as not having been justified or properly accounted for by HCF/HTS.
48. Checks were also written to HCF/HTS from each employee’s Social Security funds account on a regular basis to reimburse HCF/HTS for miscellaneous items, called “ledger” expenses – items such as doctors’ bills, clothes and entertainment expenses. Checks were also issued from these SS and SSI accounts to “Cash” on a monthly basis, with notations of “spending money” and “entertainment,” although the ultimate recipient of these monies is not confirmed.
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49. In 2008, HCF/HTS made the following payments and payroll deductions in addition to the monthly payment of $65.00 per month: Monthly payment from each man’s Social Security benefits accounts to HCF/HTS in the amount of $487.00 for “room and board” and “in kind care”; Monthly payroll deductions from the monies received from West Liberty Foods in the amount of $487.00 for “room and board”; and Monthly payroll deductions from monies received from West Liberty Foods in the amount of $572.00 for “in kind care.”
50. In 2007, HCF/HTS made the following payments and payroll deductions in addition to the monthly payment of $65.00 per month: Monthly payment from each man’s Social Security benefits accounts to HCF/HTS in the amount of $473.00 for “room and board” and “in kind care”; Monthly payroll deductions from the monies received from West Liberty Foods in the amount of $426.28 for “room and board”; and Monthly payroll deductions from monies received from West Liberty Foods in the amount of $549.81 for “in kind care.”
51. The DOL/WHD disallowed Section 3(m) credits sought by HCF/HTS for housing workers in the Atalissa Bunkhouse because the facility where the company lodged the disabled men was determined to be unsafe for occupancy by the Fire Marshal for the State of Iowa in February 2009.
52. At the time that the Bunkhouse was closed by the State of Iowa due to substandard construction, hazards and other unsafe living conditions, the disabled workers residing there were also plagued with a leaky roof and insect infestation.
53. The cost to Hill Country Farms for renting the Bunkhouse from the City of Atalissa, Iowa for several years had been only $600 per month.
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54. The DOL/WHD investigation determined that HCF/HTS would not be allowed Section 3(m) credits for utilities and insurance costs which HCF/HTS was not able to segregate with separate accounting between expenses for the Bunkhouse versus the attached trailers where non-disabled supervisors were housed.
55. With regard to claimed transportation expenses of the workers, the DOL/WHD investigation found that no Section 3(m) credits would be allowed for company vans, their insurance, fuel, and maintenance, because the transportation of the disabled workers from home to work and for delivery of food to the workers at the plant was for the benefit of the employer, not the employees.
Application of Law to Facts. 1. The undisputed facts establish, as a matter of law, the defendant employer Hill Country Farms, Inc. d/b/a Henry’s Turkey Service (“HCF-HTS”), engaged in unlawful and discriminatory pay practices in violation of the Americans with Disabilities Act, as amended 42 U.S.C. section 12112 (a). Such practices resulted in direct detriment to James Keith Brown and thirty-one other similarly-situated intellectually disabled employees referenced in the Complaint (Dkt. #1) and specifically identified in the EEOC’s Amended Statement of Interest (Dkt. # 18), by depriving them of their rightful wages. 2. The undisputed material facts establish that, during the relevant periods, the defendant employer HCF-HTS was not justified in paying lower wages to the disabled employees by any of the provisions of the Fair Labor Standards Act, 29 U.S.C. section 201 et seq. (“FLSA”) or any other federal or state law or regulation. 3. The persons identified and represented by the EEOC in this civil action are
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hereby awarded monetary relief against the defendant employer HCF-HTS for its discriminatory wage violations. The amount of damages awarded for lost wages, consistent with the provisions and intent of the ADA, shall be based on an amount of wages representing a comparable market wage rate, equivalent to that earned by non-disabled employees performing the same or similar jobs, with like tenure. The period of time for the calculation of the award of monetary relief for lost wages is the two-year period from February 2007 through the time of cessation of defendant’s Iowa operations in February 2009.
4. Based upon a finding that the defendant has no legal basis for paying the aggrieved individuals less than the legal minimum wage, it is undisputed that the disabled workers would be entitled to be paid in accordance with the minimum wage for the State of Iowa, where the disabled workers resided and worked for many years. The minimum wage rate for the State of Iowa was higher than the federal minimum wage during much of the relevant time period. Nevertheless, the amount of lost wages based on Iowa’s minimum wage law, as calculated in “EEOC’s Pay Model A,” attached to the Declaration of Charles McGhee, MPSJ App. pages 58387; 588-718 (Exhibits 23 and 23a), is less than, and subsumed by, the amount of wages calculated based on the comparable market wage rate to which they are entitled and which they are to be awarded.
5. HCF-HTS is not entitled to wage credits for amounts allegedly paid by defendant for room and board or other expenses pursuant to the provisions of 29 U.S.C. section 203 (m) (“Section 3(m)”) of the FLSA. Thus, no amounts for credited wages shall be applied to reduce the total of the amount of back pay for lost wages hereby awarded.
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6. For the foregoing reasons, the total amount of damages to be awarded for the ADA wage discrimination claims is $1,374,266.53 (exclusive of prejudgment interest) as reflected in “EEOC Pay Mode B,” attached to the Declaration of Charles McGhee, MPSJ App. pages 58387; 719-849 (Exhibits 23 and 23b). This amount is based on the comparable market wage rate. The specific monetary relief awarded shall be distributed to each of the victims of discrimination in the amounts set forth in the “EEOC’s Pay Model B” calculations.
7. Further, by the granting of this motion for partial summary judgment, the EEOC’s wage claims under the ADA shall be deemed concluded and resolved. Defendant is precluded from presenting any defenses to the wage violations claims that were the subject of the motion for partial summary judgment. Such defenses shall not be subject to re-litigation at trial or any further proceedings in this case.
8. By October 18, 2012, the EEOC shall submit and defendant may submit to the court a calculation of prejudgment interest applicable to the amounts of damages hereby awarded to the aggrieved individuals.
9. This summary judgment establishing defendant’s liability is consistent with and mandated by previous decisions rendered against defendant in this court, affirmed by the U.S. Court of Appeals for the Eighth Circuit in Solis v. Hill Country Farms, 808 F.Supp.2d 1105 (S.D. Iowa 2011), aff’d, No. 11-3069, 2012 WL 1674176 (8th Cir. 2012) and in the Iowa District Court for Polk County, affirmed by the Iowa Court of Appeals in Henry, et al. v. Iowa Dep’t of Workforce Dev., No. CV8615 (Dist. Ct. Sept. 9, 2011).
Partial Summary Judgment. The court grants EEOC’s motion for partial summary 12

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judgment establishing defendant’s liability to the persons the EEOC represents on their wage claims only, and establishing their damages in the sum of $1,374,266.53 for the relevant two-year period from February 2007 to February 2009, plus prejudgment interest.
On or before October 18, 2012, the EEOC shall present a calculation of prejudgment interest on the damages. A jury trial is scheduled for March 25, 2013, and not on March 26 as stated in a previous order, to decide the remaining issues.1
IT IS SO ORDERED. Dated this 18th day of September, 2012.

1

EEOC’s complaint alleging violations of the Americans with Disabilities Act also

sets forth a number of claims other than wage discrimination, including hostile work

environment harassment, verbal and physical abuse, and the imposition of other adverse terms

and conditions of employment because of the employees’ disabilities. Liability, damages, and

injunctive relief claims not specifically addressed in this motion are reserved for a jury trial, now

scheduled to begin at 9:00 a.m. on March 25, 2013 at the U.S. Courthouse in Davenport, Iowa.

13

 
 Case 3:11-cv-00041-CRW-TJS Document 99 Filed 05/14/13 Page 1 of 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA

Equal Employment Opportunity Commission,

Plaintiff v
Hill Country Farms, Inc., doing business as Henry's Turkey's Services,

JUDGMENT IN A CIVIL CASE CASE NUMBER: 3:11-cv-41 CRW TJS

Defendant
JURY VERDICT . This action came before the Court for trial by jury. The issues have been tried and the jury has rendered its verdict.
DECISION BY COURT. This action came before the Court. The issues have been considered and a decision has been rendered.

IT IS ORDERED AND ADJUDGED:
Plaintiff E.E.O. C. shall be entitled to judgment against Defendant Hill Country Farms, Inc., d/b/a Henry's Turkey's Services in the total sum of $1,600,000, with each of the thirty-two claimants entitled to $50,000 in damages, together with interest on that sum at the legal rate from April 6, 2011, and with taxable costs assessed against defendant. The E.E.O.C. shall immediately file its bill of costs.

Date: May 14, 2013

CLERK, U.S. DISTRICT COURT
_/s_/_R__. _Jo_h_n_s_o_n___________________ By: Deputy Clerk

 
 Case 3:11-cv-00041-CRW-TJS Document 92 Filed 05/01/13 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT 
 FOR THE SOUTHERN DISTRICT OF IOWA DAVENPORT DIVISION
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

RECEIVED
MAY 012013
CLERK U.S. DISTRICT C('URT
SOUTHERN DISTRICT OFrOWA

Plaintitl:

3-Il-cv-4I-CW-T1S

vs.

SPECIAL VERDICT FORM

HILL COUNTRY FARMS, INC., d/b/a HENRY'S TURKEY SERVICE,

Defendant.

We answer the Special Verdict Questions as follows:

QUESTION NO.1. Did Hill Country Farms subject one or more of the claimants to disparate treatment as to the terms or conditions of their emploYlnent based on their intellectual disability? (See Instruction 10 for the elements of this claim.)

Answer "Yes" or "No."
ANSWER: ye..S

QUESTION NO.2. Did Hill Country Farms subject one or Inore of the claimants to an unlawful hostile environment based on their intellectual disability? (See Instruction 11 for the elements of this claim.)

Answer "Yes" or "No."

ye ANSWER:

S

(If you answered "No" to both Question No. 1 and Question No.2. do not answer any further questions.)

QUESTION NO.3. What amount of damages, if any, is each clainlant entitled to receive to compensate for the damages caused by the conduct of Hill Country Farms? Insert a dollar amount of compensatory damages or zero in the blank space provided for each claimant.

Case 3:11-cv-00041-CRW-TJS Document 92 Filed 05/01/13 Page 2 of 6

1. James Keith Brown 2. Douglas Barco 3. Leonard Baretield 4. Clayton Gene Berg 5. David Crouch 6. Clarence Dunning 7. James Fowler 8. Pete Graffagnino 9. Leon (L.C.) Hall 10. John David Hatfield 11. Paul Hayek 12. Tommy House 13. Kenneth Jackson 14. Tommy Johnson 15. Carl Wayne Jones 16. Johnny Kent

$ ~ S-~OaQ

f

'

$ S.£oo/ aOO
I

$ ~ 500 000
$ ~, c;:~ 000

s: $

7

5'0()~ ,

000

Case 3:11-cv-00041-CRW-TJS Document 92 Filed 05/01/13 Page 3 of 6

17. Ronald Lashley 18. Willie Levi

$

5'i.

1L(JCJ~ ,

000

$ S; 5""t'xJ, bOO

19. Jeffrey Long

$. ~ 500, ()OO

20. Johnny McDaniels 21. Joe Morrell 22. Williatn (Bill) Murray 23. Robert O'Bier 24. John Owens (or Orange)

$ 5: SO~ 0,0 /

Sj $ S"IJO I' (Jao

$

~COO

>

1

000

$ ~~120 000

s;. $ £oq, COl)

25. Preston Pate 26. Billy Penner 27. Robert Penner 28. Frank Rodriguez 29. Doyle Trantham 30. Rayn10nd Vaughn 31. Brady Watson 32. Henry Dewey Wilkens

$ ~ $(:)q. 00 0

$ S; ~<"3 000

s-: $

I

~lJ(' I

000

.s; $ S CljOQ()

$ ~ ~d<9 120 0
$ ~ 5'0'9 000

S; $ ~O<j 000

$ ~ 5'tJO 000

J .

/

Case 3:11-cv-00041-CRW-TJS Document 92 Filed 05/01/13 Page 4 of 6

QUESTION NO.4. Did Hill Country Farms act with malice or with reckless indifference to the federally protected rights of its former employees? (See Instruction I3.A)
Answer "Yes" or '''No.''
S ANSWER: ~e
(If you answered "No" to Question No.4, do not answer any further questions.)
QUESTION NO.5. To what amount of punitive danlages, if any, is the EEOC on behalf of one or more of the claimants entitled? Insert a dollar amount of punitive danlages or zero for each claimant.

1. James Keith Brown

2. Douglas Barco

3. Leonard Barefield

4. Clayton Gene Berg

5. David Crouch

6. Clarence Dunning

7. James Fowler

8.

Pete Grat1agnino

9.

Leon (L.C.) Hall

10. John David Hatfield

11. Paul Hayek

l . $ I OQ~ 000
$ ~ CbOIOO()
$ ~ (k)0 CXJCl
$ 4 000 a:o
$ ~Gb'!J 000
$ a,oo~ 000
$ ~000°O0
$ ~OQ(J 000
$ "10°0 000 $ 'tOO":! Oao $ 2,.ootj 000

Case 3:11-cv-00041-CRW-TJS Document 92 Filed 05/01/13 Page 5 of 6

12. Tommy House 13. Kenneth Jackson 14. Tomlny Johnson 15. Carl Wayne Jones 16. Johnny Kent 17. Ronald Lashley 18. Willie Levi 19. Jeffrey Long 20. Johnny McDaniels 21. Joe Morrell 22. William (Bill) Murray 23. Robert O'Bier 24. John Owens (or Orange) 25. Preston Pate 26. Billy Penner 27. Robert Penner 28. Frank Rodriguez 29. Doyle Trantham 30. Raymond Vaughn

$ 1; 000 (;XjQ

$ :AI OOl'; 000

$ )JOoq, al6

$ ~0tX? COo

$ ~O:>~ COO

$ J.a)Qd a>o

/

. I

$ 1r 12'4Gt>O

$ a,O«9 dOO
$ ~(X?~ Cba

$ l.aoo.OOo
-r 7
$ ~ 00(':1 ()oa
$ ~OOC>/OOO

$ 2.00'3 COo /
$ ~~o., aao
$ ~ I OO<?J .bOO
$ 2loo~ 000

$ l<JOo,? 000
$ 4,oo().J t?oo

$ :lot {)()O .,. 000

1

I

Case 3:11-cv-00041-CRW-TJS Document 92 Filed 05/01/13 Page 6 of 6

31. Brady Watson 32. Henry Dewey Wilkens

$ 1,ooLJ cxw I
$ J;o0<9 000

FOREl)ERSON

---­

 
 Case 3:11-cv-00041-CRW-TJS Document 97 Filed 05/10/13 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION

EQUAL EMPLOYMENT OPPORTUNITY §

COMMISSION,

§

§

Plaintiff,

§

§

v.

§

§

§

§

HILL COUNTRY FARMS, INC., d/b/a

§

HENRY’S TURKEY SERVICE

§

§

Defendant.

§

____________________________________

§

Civil Action No. 3:11-cv-00041-CRW-TJS

EEOC’S POST-TRIAL BRIEF ON DAMAGES AND APPLICATION FOR INJUNCTIVE RELIEF Plaintiff, U.S. Equal Employment Opportunity Commission (“EEOC”), brought this civil action under Title I of the Americans with Disabilities Act of 1990, as amended (“ADA”), 42 U.S.C. §12117(a), to correct unlawful employment practices on the basis of disability, and to provide relief to James Keith Brown and a class of 31 other intellectually disabled individuals (“class members”) who were subjected by Defendant, Hill Country Farms, Inc. d/b/a Henry’s Turkey Service (“HCF/HTS”), to nonpayment of wages, unlawful hostile environment harassment, and discriminatory terms and conditions of employment because of impairments, which include a wide range of intellectual and developmental disabilities. The EEOC further claimed, and has now established, that the employees with disabilities were adversely affected and profoundly harmed by those unlawful employment practices.

EEOC Post-Trial Brief Re: Judgment

Page 1

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I. BACKGROUND

The judge and jury have rendered their decisions that the EEOC has proved its claims

that since at least February 2007 through February 2009, Defendant, HCF/HTS, engaged in

unlawful employment practices in violation of the ADA.

On September 18, 2012 , Judge Charles R. Wolle, Senior District Court Judge for the

United States District Court for the Southern District of Iowa, ruled, that HCF/HTS

discriminated against the 32 class members on the basis of their disabilities with regard to their

wages and benefits when compared to wages earned by non-disabled workers having equivalent

work experience and level of productivity for performing the same jobs . T he Court further

concluded that the Defendant was not entitled to claim wage credits for requiring the class

members to live in substandard living conditions or for other exceptions that might otherwise

have been allowed under the Fair Labor Standards Act (“FLSA”). (Court Ruling Granting

EEOC’s Motion for Partial Summary Judgment on wage discrimination issues, September 18,

2012, Crt. Doc. #36). A judgment of $1,374,266.53 (not yet including prejudgment interest) was awarded to the EEOC and the victims for the ADA wage violations.1

In addition to the ADA wage discrimination claims upon which the EEOC prevailed, the

EEOC alleged that the Defendant engaged in further discriminatory practices:

The Commission alleged that HCF/HTS subjected the class members to a hostile work

environment based on their intellectual disabilities by subjecting them to severe or pervasive

unwelcome and offensive conduct, both verbal and physical. Such conduct included, but was not

limited to, physical assault such as hitting, kicking, pushing and other acts of aggression and

intimidation by HCF/HTS Iowa-based supervisors. The class members were also subjected to

1 The EEOC’s submission of calculation of prejudgment interest filed on ____, is pending before the Court, and is expected to be considered with the final issuance of judgment as to all claims, including those decided on Motion for Partial Summary Judgment as a matter of law, and those more recently determined at trial by the jury’s verdict.

EEOC Post-Trial Brief Re: Judgment

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derogatory and humiliating name-calling based on their disabilities. Defendant admittedly failed or to have policies or practices in place to prevent discrimination and failed or refused to take effective measures to prevent and correct such harassment. See Stipulation Nos.21-23 (Crt. Doc. #90) and testimony of Kenneth Henry and Randy Neubauer)
The EEOC also claimed that HCF/HTS discriminated against the class members with regard to the terms, conditions and privileges of their employment based on t heir disabilities. This discriminatory disparate treatment included, but was not limited to, relegation to substandard living conditions, inattention to illness or injury, including denial of access to adequate health care, imposition of unnecessarily harsh forms of discipline, restrictions on freedom of movement and communication and socialization, and discriminatory uncompensated job assignments.
I. JUDGMENT AND VERDICT ON ADA CLAIMS Jury trial was held from April 23, 2013 through April 29, 2013. A unanimous jury verdict was returned for the EEOC and all 32 class members on May 1, 2013. The jury found violations of the ADA with respect to both of the claims (1) Terms and Conditions of Employment; and (2) Hostile Environment. The jury further found that the employer, through its officers and agents, acted with malice or reckless indifference to the federally protected rights of the class members. The jury awarded compensatory damages under the Civil Rights Act of 1991, 42 U.S.C. §1981a, for emotional harms and the loss of enjoyment of life in the amount of $5,500,000 per victim of discrimination. The jury additionally awarded $2,000,000 to each man as punitive damages.

EEOC Post-Trial Brief Re: Judgment

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Case 3:11-cv-00041-CRW-TJS Document 97 Filed 05/10/13 Page 4 of 16

II. REQUESTED MONETARY RELIEF AND ACK NOWLEDGMENT OF REMITTITUR
The Civil Rights Act of 1991, 42 U.S.C. §1981a, provides for compensatory and punitive
damages for intentional discrimination under the Americans with Disabilities Act of 1990 and
states in relevant part:

(b) COMPENSATORY AND PUNITIVE DAMAGES-

`(1) DETERMINATION OF PUNITIVE DAMAGES- A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.

`(2) EXCLUSIONS FROM COMPENSATORY DAMAGES- Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964.

`(3) LIMITATIONS- The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party--

`(A) in the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000;….

In light of the evidence in this case that the total number of employees of Hill Country

Farms, Inc., d/b/a as Henry’s Turkey Service consisted of only the few officers and employees in

Goldthwaite, Texas, and fewer than fifty (50) employees in Iowa, including the 32 workers with

disabilities for whom the EEOC sought relief, the EEOC acknowledges that the total number of

employees of the Defendant at the relevant time for this suit was fewer than 101 employees.

The EEOC, therefore, understands that the amount of damages of $7,500,000 assessed

and awarded by the jury to each of the 32 class members, while certainly an appropriate and

meaningful measure of the actual harms suffered by these victims of discrimination, including

but not limited to, the mental anguish, pain and suffering, and “loss of enjoyment of life”, must

EEOC Post-Trial Brief Re: Judgment

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Case 3:11-cv-00041-CRW-TJS Document 97 Filed 05/10/13 Page 5 of 16

be drastically reduced in order to come within the stringent statutory limits for recovery under 42 U.S.C. §1981a. With that acknowledgement, the EEOC would, of course, accept a remittitur by the Court to reflect the statutory limits on the amount of damages in this case of $50,000.. Of course each man’s recovery of the maximum allowable $50,000 is to be added to the amounts previously awarded by the Court for wage discrimination, together with applicable prejudgment interest on all the monetary damages awarded.
On, October 18, 2012, following the Ruling on Motion for Partial Summary Judgment, the EEOC, upon direction of the Court, filed a calculation of prejudgment interest applicable to the wage discrimination claims, and asks that the Court award the amounts set forth in the EEOC’s submission which are based on sound legal basis for award of prejudgment interest. (Crt. Doc. #37).
Further the EEOC requests that the Court enter judgment for damages attributable to the claims that have been established by the EEOC, and that a final judgment include the calculation of prejudgment interest which is being submitted herewith based on an award of $50,000 per class member, at the IRS prime rate, compounded quarterly for the period from February 7, 2007 through May 10, 2013. (See Attachments hereto: Declarations of Charles McGhee and Barbara Fuller with accompanying Exhibits containing calculations of damages and prejudgment interest).
III. ORDER INJUNCTIVE RELIEF IS APPROPRIATE As represented in the Stipulation No. 4, (Crt. Doc. #90) which was considered as evidence at trial, and as attested to by the President of Hill Country Farms, Inc. the Defendant corporation is still a corporation in good standing in the State of Texas, and discrimination having been found, injunctive relief is appropriate.

EEOC Post-Trial Brief Re: Judgment

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Case 3:11-cv-00041-CRW-TJS Document 97 Filed 05/10/13 Page 6 of 16

Statutory and Circuit caselaw precedent clearly establish that the EEOC is entitled to the entry of an injunction against HCF/HTS. According to Title VII, if a court finds that a respondent employer “has intentionally engaged in or is intentionally engaging in” unlawful employment practices charged in the plaintiff’s complaint, the court may “enjoin the respondent from engaging in such practices” and “order such affirmative action as may be appropriate, which may include…any…equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e5(g)(1).2
It is ordinarily incumbent upon the Court to grant the plaintiff the most complete relief possible when discrimination has been established. EEOC v. Rath Packing Co., 787 F.2d 318 (8th Cir. 1986) citing Briseno v. Central Tech. Community College Area, 739 F.2d 344, 347 (8th Cir. 1984). The concept of ensuring that full “make-whole” relief, including injunctive remedies such as monitoring, is something that the Courts of the Eighth Circuit have long recognized. Rath Packing ; See also, Locke v. Kansas City Power and Light Co., 660 F.2d 359, 368 (8th Cir. 1981); EEOC v. Delight Wholesale Co., 973 F.2d 664 (8th Cir. 1992); Ingram v. Missouri Pacific R. Co, 897 F.2d 1450 (8th Cir. 1990); Bibbs v. Block, 778 F.2d 1318 (8th Cir. 1985) citing Albermarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975).
The Supreme Court in Franks v. Bowman Transportation Co., Inc., 424 U.S. 747 (1976), held that the remedial provision of Title VII (Sec. 706(g)) gives federal courts wide latitude to order “make-whole” relief to victims of unlawful workplace employment practices. Such make-

2 Section 107 of the ADA specifically states that the remedies set forth in Section 706 of Title VII shall be the remedies under the ADA. 42 U.S.C. Sec. 12117. As such, the “make-whole” relief outlined in Section 706(g) of Title VII applies to cases filed under the ADA.

EEOC Post-Trial Brief Re: Judgment

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Case 3:11-cv-00041-CRW-TJS Document 97 Filed 05/10/13 Page 7 of 16

whole relief, includes, but is not limited to, an injunction against the employer, reinstatement, instatement, and backpay. Franks, supra, at 763. According to the Franks Court, to effectuate this “make-whole” objective, Congress in Section 706(g) vested broad equitable discretion in the federal courts to “order such affirmative action as may be appropriate,” which may include the types of relief identified above “or any other equitable relief as the court deems appropriate.” (Emphasis added). Section 706(g), therefore, gives moving parties broad authority to fashion a request for relief that is tailored to the particular case at hand, and affirms the broad discretion given to federal courts to “make-whole” discrimination victims.
In the Eighth Circuit, it is recognized that once a party has demonstrated the merits of a discrimination claim, the court must balance three factors to determine if injunctive relief is appropriate:
1. The threat of irreparable harm to the moving party; 2. The harm to be suffered by the non-moving party if the court grants the
injunction; and 3. The public interest at stake. Layton v. Elder, 143 F.3d 469, 472 (8th Cir. 1998) An examination of these factors calls for issuance of injunctive relief that anticipates further violations of the ADA, or the recurrence of discriminatory acts or omissions by the corporation in any future business. In this case against HCF/HTS, the EEOC is not a private party. The threat of irreparable harm to the EEOC on behalf of the public interest under its statutory mandate to address discriminatory employment practices, in the absence of an order for full and prophylactic remedial relief on facts of this case which shock the public conscience, can be presumed or at least weighed heavily in favor of the public interest. This factor clearly ties into the third factor regarding the broader implications on the public interest.

EEOC Post-Trial Brief Re: Judgment

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Case 3:11-cv-00041-CRW-TJS Document 97 Filed 05/10/13 Page 8 of 16

Further, the harm suffered by the non-moving party, HCF/HTS, if the Court grants an injunction against the intact Texas corporation, which would be conditionally enforceable upon a potential return to full operations or re-initiation of the business by the Defendant or a successor, does not cause the Defendant to suffer harm by application of injunctive remedial relief that would simply serve to prevent or correct discriminatory practices in which it engaged prior to this cause of action.
Finally, the “public interest” at stake in the case is evident from the policies and practices that have become issues of public awareness and debate since the facts first came to light and after the facts were established as a matter of law by this Court regarding pay practices, and upon verdict by the jury on all other issues of treatment. Injunctive relief is an effective and important mechanism for preventing employment discrimination. EEOC v. Rogers, 470 F.2d 965, 966 (5th Cir. 1972). The EEOC’s primary purpose for bringing any lawsuit is to “vindicate the public interest in employment discrimination.” General Tel. Co. of the NW., Inc. v. EEOC, 446 U.S. 318, 326 (1980). This purpose remains the EEOC’s main goal even when the suit, such as the present one, also seeks victim-specific relief. Id. Thus, injunctive relief will be an effective method of achieving the EEOC’s primary goal in bringing this case: to put an end to the practices and policies (or the harms caused by the lack thereof) for the corporation which remains in good standing in Texas.
When issues common to both legal and equitable claims are tried together, the jury’s findings on the legal issues bind the judge when ruling on the equitable claims. Hodges v. City of Houston, 1995 WL 726463, at *2 (5th Cir. Nov. 15, 1995); Los Angeles Police Protective League v. Gates, 995 F.2d 1469, 1473 (9th Cir. 1993); Snider v. Consolidation Coal Co., 973 F.2d 555, 559 (7th Cir. 1992). This rule applies not only to the jury’s express determinations, but

EEOC Post-Trial Brief Re: Judgment

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Case 3:11-cv-00041-CRW-TJS Document 97 Filed 05/10/13 Page 9 of 16
also to findings implied by the express determinations. Gates, 995 F.2d at 1473. Thus, the jury’s finding regarding the Defendant employer’s state of mind will typically bind the Court’s determination of whether it may grant injunctive relief pursuant to 42 U.S.C. § 2000e-5(g)(1). The jury’s determination that officers and agents of HCF/HTS “acted with malice or reckless indifference” with regard to their discriminatory acts and omissions, implicitly establishes that the Defendant intentionally engaged in unlawful employment practices. Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 534 (1999). Therefore, the Court may order an injunction and other equitable relief pursuant to the ADA and the Civil Rights Act of 1991.
IV. SPECIFIC INJUNCTIVE RELIEF REQUESTED Based on this Court’s Ruling on Motion for Partial Summary Judgment granted by the Court (Crt. Doc. #36) on the wage discrimination claims, and upon the additional findings by the jury based on a preponderance of the evidence, that the Defendant unlawfully discriminated against the class of workers with disabilities, the EEOC requests the following be ordered as injunctive relief against the Defendant3: 1. That the Defendant shall immediately notify the EEOC in writing if Defendant: (1) begins to conduct business; (2) re-establishes itself under a different name and begins to conduct business; or (3) re-establishes itself as any other entity engaged in business

3 Definition of “Defendant”: Although Defendant HCF/HTS is presently not actively conducting business, the terms of a final judgment and order should be applied to Defendant if and when Defendant: (1) begins to conduct business; (2) re-establishes itself under a different name and begins to conduct business; or (3) re-establishes itself as any other entity engaged in business activities similar to those conducted while named Hill Country Farms, Inc. or Henry Turkey Services (“HCF/HTS”). The terms shall also apply to any and all successors, subsidiaries, assigns, affiliates, officers and directors and to any business entities that may be deemed as “successor” companies of and to any business entities that become affiliated with or grow out of the interests of HCF/HTS.

EEOC Post-Trial Brief Re: Judgment

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Case 3:11-cv-00041-CRW-TJS Document 97 Filed 05/10/13 Page 10 of 16
activities similar to those conducted while named Hill Country Farms, Inc. or Henry’s Turkey Services. 2. That the Defendant shall immediately give written notice to the EEOC if a s uccessor company is established or if any other business entity becomes affiliated with Defendant with the intent of hiring employees directly or to provide contract labor. Notice of the matters described in this paragraph shall be given to the EEOC within thirty (30) days of Defendant’s knowledge of any of the above matters. U pon receiving such notification from Defendant, the Defendant recognizes the EEOC’s right to petition the Court to enforce the final judgment against any or all parties contemplated to be engaging or reengaging in a business related to the businesses of Hill Country Farms, Inc. 3. The Defendant and any and all of its successor employers, subsidiaries, assigns or affiliates as defined above, shall be permanently enjoined from discriminating against any job applicants and employees with physical, mental or intellectual impairments, in violation of the Americans with Disabilities Act of 1990, as amended. 4. If the Defendant is to engage in business at any time in the future, or should the principals and/or owners of Defendant engage in business activities under a different corporate name, or if there should arise any successor employer of the Defendant, then --within ninety (90) days of starting or restarting such business, the Defendant and any successor employer of the Defendant, will comply with the following: a. Notify the EEOC in writing that the Defendant is now engaging in business activities.
Defendant shall inform the EEOC of the name of the corporate entity, the name of the officers and executives and the date and state of incorporation.

EEOC Post-Trial Brief Re: Judgment

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b. The Defendant shall promulgate and implement the following written policies and procedures: (1) For employees to be able to report complaints of discrimination, harassment, or inability to access medical care, reasonable accommodations or support services (from federal, state or local governments, or from private or nonprofit organizations) as a result of the employer’s acts or omissions. T his policy and procedure will also provide the manner by which employees can request access to medical care or developmental support services. (2) For employees, including but not limited to supervisory personnel, to report to the company’s officers or human resources staff what they believe to be discriminatory conduct, harassment, failure to make reasonable accommodations of disabilities, excessive discipline or other forms of unfair treatment of intellectually or developmentally disabled employees.
c. All owners and all management and supervisory officials will receive a full day (6 hours minimum) of training regarding the Americans with Disabilities Act (“ADA”) from a qualified employment and labor law attorney or professional trainer annually for each of the first five years after the business is initiated or re-established. The training will inform the management/supervisory employees of both, the complaint policy/procedures for individuals who believe that they are being discriminated against, and the reporting policy/procedure by which Defendant’s managers or supervisors report discrimination that they believe is being suffered by intellectually or developmentally disabled (“IDD”) employees.

EEOC Post-Trial Brief Re: Judgment

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d. In addition to the training described above in Paragraph 4(c), annual training will also advise of the consequences imposed upon m anagers or supervisors for violating the ADA. T he training will include a specific discussion or instruction relating to harassment of persons with disabilities, the reporting requirements regarding complaints of harassment, and the appropriate investigation of hostile environment and harassment claims. The training shall be at least two (2) hours in duration. No less than 10 da ys before the training is conducted, Defendant (or its successor or affiliate) will give written notice to the EEOC as to the date and location of the training, the name and qualifications of the person(s) providing the training and the substance of the training. All materials used in conjunction with the training shall be forwarded to the EEOC. W ithin thirty (30) days following the training, Defendant shall submit to the EEOC confirmation that the training was conducted, and a list of attendees.
e. Should Defendant or its successor employer hire or rehire intellectually or developmentally disabled (“IDD”) employees at any time in the future, the Defendant or its successor employer will conduct a training of its management and supervisory staff that will include at least two hours of content on the abilities, disabilities and suggested reasonable accommodations, as well as residential and employment supports available for IDD employees. Within thirty (30) days following the training, the Defendant shall submit to the EEOC confirmation that the training was conducted, and a list of attendees.
f. If the Defendant or its successor employs persons with intellectual or developmental disabilities (“IDD”), the employer shall retain a mental health professional, either

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internally within the entity or externally through contract, as a consultant (“Consultant”) for any questions that arise regarding the IDD employees. For the first five years of business operations, if commenced, by the Defendant or successors, the Consultant will interview all IDD employees and provide detailed reports to the EEOC on a semi-annual basis (on June 1 and January 1 of each year), which shall include the following information: each employee’s pay rate, a job title and brief description of his/her job duties, and a record of responses to inquiries about any mistreatment or other complaints about working conditions. g. Should any IDD employee request a reasonable accommodation regarding the performance of his/her job, Defendant shall make an individualized assessment of the employee’s request, and have the Consultant provide advice and participate in the interactive process to determine the appropriate reasonable accommodation of the IDD employee. Each such requested accommodation shall be reported to the EEOC within fifteen (15) days of the request. Then, within fifteen (15) additional days of the Defendant making a decision as to the employee’s request, the Defendant shall report to the EEOC whether an accommodation request was granted, and, if so, shall provide a detailed account of the accommodation. If the accommodation is not granted, the Defendant will report to the EEOC any and all reasons why it was not granted, including whether such accommodation would have created an undue hardship to its business operations. 5. When provisions in the final judgment and order for prospective injunctive relief requires the submission by Defendant of documents or other materials to EEOC, such

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documents or other materials shall be mailed to Robert A. Canino, Regional Attorney, EEOC Dallas District Office, 207 S. Houston St., 3rd Floor, Dallas, Texas 75202.
CONCLUSION For all of the reasons set forth above, and in light of the abundance of evidence before the
Court, not only in the form of the Stipulations of the parties (as embodied in the Pretrial Conference Order and submitted to the jury at trial), the extensive exhibits admitted without objection, as well as the overwhelming testimony with regard to blatant disregard of civil rights and laws that prohibit discrimination, the EEOC respectfully requests that this Court affirm the findings of the jury by issuing an order of permanent injunction in anticipation of any return to business by the corporation or any successor.
The EEOC further requests that the final judgment for the disparate treatment terms and conditions, and the hostile environment harassment claims reflect an award of $50,000 per class member plus prejudgment interest as calculated and presented in Exhibit A, to the Declaration of Barbara Fuller. The order regarding prejudgment interest on these additional compensatory and punitive damages under 1981a should be for the total amount of $188,328.96, based on the $1,600,000 in damages for the 32 class members.
The EEOC further requests that this Court issue an Order granting the EEOC’s earlier request for Prejudgment Interest in the total amount of $283,568.06 on the underlying backpay of

EEOC Post-Trial Brief Re: Judgment

Page 14

Case 3:11-cv-00041-CRW-TJS Document 97 Filed 05/10/13 Page 15 of 16

$1,374,266.53 for lost wages previously awarded by the Court in its Ruling of September 18, 2012 (Crt. Doc.# 36).4
The total monetary recovery for each class member should, thus, be adjudged and ordered accordingly along with the proposed injunctive relief set forth above.
Further, reasonable costs should be awarded to the EEOC as the prevailing party in this action.
Respectfully submitted this 10th day of May, 2013.

/S/_Robert A. Canino Robert A. Canino Attorney for Plaintiff(s):
U.S. Equal Employment Opportunity Commission Dallas, Texas 76202 Tele: 214-253-2750 Fax: 214-253-2749 Email: robert.canino@eeoc.gov

CERTIFICATE OF SERVICE This is to certify that on May 10, 2013, I electronically transmitted the attached document to the Clerk of the Court using the ECF system of filing, which will transmit a Notice of the Electronic Filing to Defendant’s counsel, who is an EFC registrant.

4 EEOC’s Calculation submitted October 18, 2012. (Crt. Doc. #37), as interest on wage claims not only provides the cumulative total of prejudgment interest and the legal support for the calculations made, but also has a specific breakdown of prejudgment interest as applied to each class member based on the amount of damages that he is to receive individually. Therefore the Court’s Order should incorporate a reference to EEOC’s individual allocations of the prejudgment.

EEOC Post-Trial Brief Re: Judgment

Page 15

Case 3:11-cv-00041-CRW-TJS Document 97 Filed 05/10/13 Page 16 of 16

David Scieszinski Attorney for Hill Country Farms, Inc. d/b/a Henry’s Turkey Service dvdls@netwtc.net

/s/ Robert A. Canino Robert A. Canino

EEOC Post-Trial Brief Re: Judgment

Page 16

 
 Case 3:11-cv-00041-CRW-TJS Document 98 Filed 05/14/13 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA
DAVENPORT DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
vs.

No. 3-11-cv-41-CRW-TJS Order for Judgment

HILL COUNTRY FARMS, INC., doing business as Henry’s Turkey’s Services,
Defendant.
On May 1, 2013, the trial ended with a jury returning special verdicts in this case. The court allowed counsel to file by May 10, 2013, their proposals on what judgment should be entered for the plaintiff Equal Employment Opportunity Commission (E.E.O.C.) and the thirtytwo claimants it represents. The court has received the parties’ written submissions concerning what judgment should be entered on the jury special verdicts filed on May 2, 2013. For the reasons herein set forth, the court now directs the clerk of court immediately to enter the following judgment.
Plaintiff E.E.O.C. shall be entitled to judgment against defendant Hill Country Farms, Inc. d/b/a Henry’s Turkey’s Services in the total sum of $1,600,000, with each of the thirty-two claimants entitled to $50,000 in damages, together with interest on that sum at the legal rate from April 6, 2011, and with taxable costs assessed against defendant. The E.E.O.C. shall immediately file its bill of costs.
Although the special verdicts provided for defendant to pay each claimant $3 million in compensatory damages and $2.5 million in punitive damages,1 Title I of the Americans with

1 In accordance with precedent, the court did not inform the jury about the statutory $50,000 limit before the special verdicts were returned.
1

Case 3:11-cv-00041-CRW-TJS Document 98 Filed 05/14/13 Page 2 of 2
Disabilities Act imposes a statutory cap, or ceiling, of $50,000 for each claimant when an employer like Hill Country Farms had more than fourteen but fewer than 101 employees. 42 U.S.C. §1981a (b)(2), (3)(A). The statute limits to $50,000 the combined compensatory and punitive damages recoverable from the defendant for each claimant. The court has no discretion to enter judgment in excess of that statutory limit of $50,000 in damages for recovery by each of the thirty-two claimants.
The plaintiff E.E.O.C. now seeks in its post-verdict brief to have the court also grant injunctive relief. During the trial, the court had informed the parties that no hearing would be held on the request for an injunction until the jury had returned its special verdicts. With the verdicts now favoring the plaintiff on damages issues, the court will hold a hearing at 9:00 a.m. on June 10, 2013 at the United States Courthouse in Davenport to address the following issues:
1) Should the court grant the E.E.O.C. request for injunctive relief? 2) Is the E.E.O.C. entitled to its expert witness fees, and if so, in what amount? 3) What interest on the judgment is owed and from what date is interest to be calculated? 4) If post-verdict and judgment motions are filed, the court will receive oral argument during the June 10 hearing. By June 6, 2013, the parties may file a proposed ruling and supporting brief on each of these issues, together with a statement concerning what evidence, if any, will be presented at the hearing. IT IS SO ORDERED. Dated this 14th day of May, 2013.
2

 
 Case 3:11-cv-00041-CRW-TJS Document 99 Filed 05/14/13 Page 1 of 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA

Equal Employment Opportunity Commission,

Plaintiff v
Hill Country Farms, Inc., doing business as Henry's Turkey's Services,

JUDGMENT IN A CIVIL CASE CASE NUMBER: 3:11-cv-41 CRW TJS

Defendant
JURY VERDICT . This action came before the Court for trial by jury. The issues have been tried and the jury has rendered its verdict.
DECISION BY COURT. This action came before the Court. The issues have been considered and a decision has been rendered.

IT IS ORDERED AND ADJUDGED:
Plaintiff E.E.O. C. shall be entitled to judgment against Defendant Hill Country Farms, Inc., d/b/a Henry's Turkey's Services in the total sum of $1,600,000, with each of the thirty-two claimants entitled to $50,000 in damages, together with interest on that sum at the legal rate from April 6, 2011, and with taxable costs assessed against defendant. The E.E.O.C. shall immediately file its bill of costs.

Date: May 14, 2013

CLERK, U.S. DISTRICT COURT
_/s_/_R__. _Jo_h_n_s_o_n___________________ By: Deputy Clerk

 
 Case 3:11-cv-00041-CRW-TJS Document 108 Filed 06/11/13 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA DAVENPORT DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,

No. 3-11-cv-41-CRW-TJS

vs.

FINAL JUDGMENT

WITH INTEREST AND COSTS

HILL COUNTRY FARMS, INC., doing business as Henry’s Turkey Services,

Defendant.

On June 10, 2013, the Court held a hearing by telephone conference call to receive

presentations of counsel on what Judgment shall be entered for the Plaintiff Equal Employment

Opportunity Commission (EEOC) on behalf of the thirty-two claimants and against the

Defendant Hill Country Farms, Inc., doing business as Henry’s Turkey Services.

The Court grants the EEOC’s requested judgment that includes calculated

prejudgment interest and costs, but not its request for payment of the expert witness fees

requested for Dr. Sue Gant. The Court is mindful of the EEOC argument, based on Nemmers v. City of Dubuque, 764 F.2d 502 (8th Cir. 1985), that Dr. Gant’s expert testimony was crucial to

the issues decided. But the EEOC has not borne its burden to show the claimants would not have

prevailed in the case without the expert’s testimony. The Court finds the record at trial would

have led to the same verdicts even if Dr. Gant had not testified in person or by proffer of a

deposition. See 28 U.S.C. § 1821; 42 U.S.C. § 2000e-5; F.R.C.P. 54 (d).

The Court now directs the Clerk of Court to enter this Final Judgment that decides

1

Case 3:11-cv-00041-CRW-TJS Document 108 Filed 06/11/13 Page 2 of 7
the amounts of all claimants’ recovery of compensatory and punitive damages, interest on those damage amounts, taxable costs here determined, and stipulated injunctive relief. The Court finds credible the calculations of prejudgment interest and taxable costs (other than expert witness fees) presented in affidavits of paralegal Barbara Fuller and research analyst Charles McGhee, attached to the EEOC supplemental motion filed on June 6, 2013 (Docket # 106).
I. TERMS OF INJUNCTIVE RELIEF. Defendant shall immediately notify the EEOC in writing1 if Defendant (1) begins to conduct business; (2) re-establishes itself under a different name and begins to conduct business; or (3) re-establishes itself as any other entity engaged in business activities similar to those conducted while named Hill Country Farms, Inc. or Henry’s Turkey Services.
Defendant shall immediately give written notice to the EEOC if a successor company is established or if any other business entity becomes affiliated with Defendant with the intent of hiring employees directly or to provide contract labor. Notice of the matters described in this paragraph shall be given to the EEOC within thirty (30) days of Defendant’s knowledge of any of the above matters. Upon receiving such notification from Defendant, the EEOC may petition the Court to enforce the Final Judgment against any or all parties contemplated to be engaging or re-engaging in a business related to the businesses of Hill Country Farms, Inc.
Defendant and any and all of its successor employers, subsidiaries, assigns, or affiliates as defined above, shall be permanently enjoined from discriminating against any job applicants and employees with physical, mental, or intellectual impairments, in violation of the
1 All documents or other materials required by the terms of injunctive relief to be submitted to the EEOC shall be mailed to Robert A. Canino, Regional Attorney, EEOC Dallas District Office, 207 S. Houston St., 3rd Floor, Dallas, Texas 75202.
2

Case 3:11-cv-00041-CRW-TJS Document 108 Filed 06/11/13 Page 3 of 7
Americans with Disabilities Act of 1990, as amended. If Defendant is to engage in business at any time in the future, or should the
principals and/or owners of Defendant engage in business activities under a different corporate name, or if there should arise any successor employer of the Defendant, then within ninety (90) days of starting or restarting such business, the Defendant and any successor employer of the Defendant, will comply with the following:
a. Notify the EEOC in writing that the Defendant is now engaging in business activities. Defendant shall inform the EEOC of the name of the corporate entity, the name of the officers and executives, and the date and state of incorporation.
b. Defendant shall promulgate and implement the following written policies and procedures:
(1) For employees to be able to report complaints of discrimination, harassment, or inability to access medical care, reasonable accommodations or support services (from federal, state or local governments, or from private or non-profit organizations) as a result of the employer’s acts or omissions. This policy and procedure will also provide the manner by which employees can request access to medial care or developmental support services.
(2) For employees, including but not limited to supervisory personnel, to report to the company’s officers or human resources staff what they believe to be discriminatory conduct, harassment, failure to make reasonable accommodations of disabilities, excessive discipline, or other forms of unfair treatment of intellectually or developmentally disabled employees.
c. All owners and all management and supervisory officials will receive a full day (6 hours minimum) of training regarding the Americans with Disabilities Act from a qualified
3

Case 3:11-cv-00041-CRW-TJS Document 108 Filed 06/11/13 Page 4 of 7
employment and labor law attorney or professional trainer annually for each of the first five years after the business is initiated or re-established. The training will inform the management/supervisory employees of both the complaint policy/procedures for individuals who believe that they are being discriminated against, and the reporting policy/procedure by which Defendant’s managers or supervisors report discrimination that they believe is being suffered by intellectually or developmentally disabled employees.
d. In addition to the training described above, annual training will also advise of the consequences imposed upon managers or supervisors for violating the Americans with Disabilities Act. The training will include a specific discussion or instruction relating to harassment of persons with disabilities, the reporting requirements regarding complaints of harassment, and the appropriate investigation of hostile environment and harassment claims. The training shall be at least two (2) hours in duration. No less than ten days before the training is conducted, Defendant (or its successor or affiliate) will give written notice of the EEOC as to the date and location of the training, the name and qualifications of the person(s) providing the training, and the substance of the training. All materials used in conjunction with the training shall be forwarded to the EEOC. Within thirty (30) days following the training, Defendant shall submit to the EEOC confirmation that the training was conducted and a list of the attendees.
e. Should Defendant or its successor employer hire or rehire intellectually or developmentally disabled employees at any time in the future, the Defendant or its successor employer will conduct a training of its management and supervisory staff that will include at least two (2) hours of content on the employees’ abilities, disabilities, and suggested reasonable accommodations, as well as residential and employment supports available for the intellectually
4

Case 3:11-cv-00041-CRW-TJS Document 108 Filed 06/11/13 Page 5 of 7
or developmentally disabled employees. Within thirty (30) days following the training, the Defendant shall submit to the EEOC confirmation that the training was conducted, and a list of attendees.
f. If Defendant or its successor employs persons with intellectual or developmental disabilities, the employer shall retain a mental health professional, either internally within the entity or externally through contract, as a Consultant for any questions that arise regarding the intellectually or developmentally disabled employees. For the first five years of business operations commenced by Defendant or its successors, the Consultant will interview all intellectually or developmentally disabled employees and provide detailed reports to the EEOC on a semi-annual basis (on June 1 and January 1 of each year), which shall include the following information: each employee’s pay rate, a job title and brief description of job duties, and a record of responses to inquiries about any mistreatment or other complaints about working conditions.
g. Should any intellectually or developmentally disabled employee request a reasonable accommodation regarding the performance of his/her job, Defendant shall make an individualized assessment of the employee’s request, and seek the Consultant’s advice and participation in the interactive process to determine the appropriate reasonable accommodation. Each such requested accommodation shall be reported to the EEOC within fifteen (15) days of the request. Within fifteen days of action on the accommodation request, the Defendant will report to the EEOC whether an accommodation was granted and, if so, provide a detailed account of the accommodation. If the accommodation request is denied, the Defendant will report to the EEOC any and all reasons for the denial, including whether such accommodation would have created an undue hardship to its business operations.
5

Case 3:11-cv-00041-CRW-TJS Document 108 Filed 06/11/13 Page 6 of 7
II. MONEY JUDGMENT. EEOC is entitled to judgment against Defendant for the backpay amount of $1,374,266.53 for the claimants it represents, based on the partial summary judgment dated September 18, 2012 (Docket # 36) and $1,600,000 based on the judgment entered on May 14, 2013 (Docket # 99), together with interest and costs as follows.
III. TERMS OF PREJUDGMENT INTEREST. Prejudgment interest on all wage and compensatory damages awarded to the victims of discrimination is properly calculated in this federal statutory employment discrimination action by applying the rate of the Internal Revenue Service under 26 U.S.C. section 6621 for underpayment of taxes. The point of commencement of accrual of prejudgment interest is April 6, 2007, two years before this lawsuit was filed.
Prejudgment interest in the total amount of $283,568.06 is awarded on the underlying backpay amount of $1,374,266.53 in accordance with the Court’s Ruling which granted partial summary judgment on September 18, 2012 (Docket # 36). The amounts of interest for individual class members are set forth and itemized in attachments to the EEOC’s Calculation, filed on October 18, 2012 (Docket #37).
Additional prejudgment interest shall be awarded on the post-trial compensatory damages reduced by Order of May 14, 2013, pursuant to the statutory caps of the Civil Rights Act of 1991, 42 U.S.C. section 1981a, which is applicable to the Americans with Disabilities Act (Docket # 98). Further, such prejudgment interest on compensatory damages in the amount of $36,667 per class member shall be awarded for a total of $4,315.91 per class member, and in the aggregate sum of $138,109.12.
IV. TAXED COSTS. The EEOC is awarded its costs (except for fees incurred for the work of expert witness Dr. Sue A. Gant) in the amounts set forth in the bill of costs submitted
6

Case 3:11-cv-00041-CRW-TJS Document 108 Filed 06/11/13 Page 7 of 7 by the EEOC on May 31, 2013 (Docket #105), totaling $10,487.54.
V. POST JUDGMENT INTEREST. Defendant shall pay post judgment interest, which will be applicable to any and all unpaid judgment sums, and which will accrue for as long as the judgment is not paid in full in accordance with this Court’s orders and entry of partial summary judgment and this Final Judgment.
IT IS SO ORDERED. Dated this 11th day of June, 2013.
7

 
 Case 3:11-cv-00041-CRW-TJS Document 124-1 Filed 05/09/14 Page 1 of 2
United States Court of Appeals
For the Eighth Circuit ___________________________
No. 13-2796 ___________________________ Equal Employment Opportunity Commission lllllllllllllllllllll Plaintiff - Appellee
v. Hill Country Farms, Inc., doing business as Henry’s Turkey Services
lllllllllllllllllllll Defendant - Appellant ____________
Appeal from United States District Court for the Southern District of Iowa - Davenport
____________ Submitted: May 5, 2014
Filed: May 8, 2014 [Unpublished] ____________
Before WOLLMAN, BOWMAN, and KELLY, Circuit Judges. ____________
PER CURIAM.
This is an appeal following entry of judgment against appellant in a suit brought by the Equal Employment Opportunity Commission (EEOC) for violations of the Americans with Disabilities Act (ADA). During the course of the proceedings,
Appellate Case: 13-2796 Page: 1 Date Filed: 05/08/2014 Entry ID: 4151859

Case 3:11-cv-00041-CRW-TJS Document 124-1 Filed 05/09/14 Page 2 of 2
appellant moved to vacate the district court’s1 order entering an adverse grant of partial summary judgment in favor of the EEOC, arguing that the order was void because an allegedly indispensable third party had not been joined as a defendant. Following a hearing, the district court denied the motion. Eventually, a jury found appellant liable for the remaining ADA violations and awarded damages, and following entry of judgment, this appeal was filed.
For reversal, appellant argues that (1) the EEOC “erred” in failing to join the indispensable third party, and (2) the district court erred in admitting certain evidence at trial. Construing the first point as a challenge to the denial of the motion to vacate, we conclude that the district court did not err in refusing to vacate the order of partial summary judgment, see Minn. Milk Producers Ass’n v. Glickman, 153 F.3d 632, 646-47 (8th Cir. 1998); and as to the second point, appellant does not direct us to any objection in the record to admission of the evidence at issue, and we see no plain error in its admission, see Nemmers v. Ford Motor Co., 686 F.3d 486, 490 (8th Cir. 2012). Accordingly, we affirm. See 8th Cir. R. 47B.
______________________________
1The Honorable Charles R. Wolle, United States District Judge for the Southern District of Iowa.
-2-
Appellate Case: 13-2796 Page: 2 Date Filed: 05/08/2014 Entry ID: 4151859

 
 Case 3:12-cv-04737-P Document 49 Filed 09/11/15 Page 1 of 8 PageID 584

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA
v. KENNETH J. HENRY AND HILL COUNTRY FARMS, INC.

§

§

§

§

3:12-CV-4737-P

§

§

§

§

ORDER

Now before the Court is the United States of America's Emergency Motion for Turnover

Order, filed on August 26, 2015. Doc. 40. The Court ordered expedited briefing on this motion,

Doc. 44, but no response was filed. On September 3, 2015, with leave of the Court, the United

States Equal Employment Opportunity Commission filed its amicus curiae brief in support of the

United States' Emergency Motion for Turnover Order. Doc. 45. After reviewing the parties'

briefing, the evidence, and the applicable law, the Court GRANTS the United States' Emergency

Motion for Turnover Order.

I. Background

On July 20, 2011, The United States of America was awarded a judgment in United

States Department ofLabor v. Hill Country Farms, Inc., case number 3:09-cv-162, in the United

States District Court for the Southern District of Iowa against Kenneth J. Henry and Hill Country

Farms, Inc. ("HCF") (collectively, "Defendants") for $1,761,554.34, plus post-judgment interest.

(the "judgment"). Doc. 41-1 at 14. The judgment was registered in the United States District

Court for the Northern District of Texas on October 11, 2011 under case number 4:11-mc-15.

Through the Treasury Offset Program, garnishment actions, and other involuntary enforcement

Order 3:12-CV-4737-P Page 1 of8

Case 3:12-cv-04737-P Document 49 Filed 09/11/15 Page 2 of 8 PageID 585

mechanisms,

the

United

States

has

collected

only

$279,308.21

1 •

Doc. 41-1 at 15-22.

The

current debt balance is $1 ,493,604.86. !d. The United States now requests a turnover order in

aid of satisfying the judgment.

A. The United States' Collection Efforts

Defendants have demonstrated a pattern of efforts to avoid paying this judgment. Shortly

after the judgment was entered the United States sent demand letters to Defendants. Doc. 41-4 at

9-12. Three weeks later, Henry transferred real estate worth approximately $325,000 to his

daughter. Doc. 41-3 at 7-10. The United States sent additional demand letters. Doc. 41-4 at 13-

20. The United States maintains that Defendants did not respond to any of the demand letters.

!d. at 22. After being subpoenaed, Henry eventually appeared at a debtor exam on September

26, 2012. !d. Despite showing substantial assets, Henry refused to surrender any assets or enter

into a payment arrangement with the United States. !d.

The United States has likewise had little success collecting on the judgment through

alternative means. It filed the present Application for Writs of Garnishment on November 20,

2012, seeking to garnish Henry's and HCF's property interests held by First National Bank,

Mills County State Bank, Rusty Roberson, and Southwestern Farms & Cattle Co., Inc. Doc. 2.

Writs of garnishment were later served on Henry's daughter and his wife on July 13 and 18,

2013, respectively. Docs. 22-23. All these efforts collectively resulted in the limited recovery of

$279,308.21 previously discussed.

B. Mills County Lawsuit, Confidential Agreement and Settlement

1 In its motion the United States asserts it has only collected $272,297.22. Doc. 40 at 9. According to the payment history included in its appendix to its motion, this $272,292.22 is the amount collected from Henry individually, Doc. 41-1 at 16, while an additional $7,010.99 was collected from HCF. !d. at 12. The Court believes this was an inadvertent mistake as the debt balance of $1,493,604 asserted by the United States is reflected on the payment histories of both defendants. See /d. at 12-16.
Order 3: 12-CV-4737-P Page 2 of8

Case 3:12-cv-04737-P Document 49 Filed 09/11/15 Page 3 of 8 PageID 586
On June 8, 2012, HCF filed the above mentioned lawsuit against Frieda Johnson and J&J Egg Farm ("J&J") over a land dispute ("Mills County Lawsuit"). Doc. 41-2 at 23-28. The petition alleged that HCF became a 50% owner of J&J when Thurman Johnson, one of the founders of J&J, transferred his interest to HCF. Id at 24-25. The petition alleged "all owners of [J&J] and [HCF] were aware of the transfer and operated under such circumstances. Id at 25. Moreover, the transfer was eventually documented through a Stock Assignment in 2005. Id at 28. The petition further alleged that Henry and Jane Anne Moreland each owned 50% of HCF. Id at 25.
Upon learning of the Mills County Lawsuit the United States filed a Supplemental Application for Writs of Garnishment on October 3, 2014. Doc. 31. The United States sought to garnish HCF's property held by the defendants in the Mills County Lawsuit, as well as McKethan Espinoza, PLLC, the law firm representing HCF in the lawsuit. Id All three answered stating they had no property belonging to HCF nor did they anticipate owing HCF anything in the future. Docs. 34-35.
After pursuing the Mills County Lawsuit for over a year, and just shortly after the writs of garnishments were served on Henry's wife and daughter, the owners of HCF entered into a Confidential Agreement with Mina Martin, the Executrix of the Estate of Thurman Johnson ("the Estate") as well as Thurman Johnson's daughter. Doc. 41-1 at 2-7. The Confidential Agreement established the following:
1) HCF owned the interest in J&J that was the subject ofthe Mills County Lawsuit 2) Thurman Johnson owned 50% of J&J, which he transferred to HCF 3) HCF owed Henry $150,412.50 and Moreland $94,522.00. 4) The Estate would pursue the Mills County Lawsuit in place ofHCF
Order 3:12-CV-4737-P Page 3 of8

Case 3:12-cv-04737-P Document 49 Filed 09/11/15 Page 4 of 8 PageID 587
5) Funds received from the Mills County Lawsuit will pay $150,412.50 to Henry's daughter and $94,522.00 to Moreland. Any remaining funds will be split 50% to Henry's daughter and the rest equally among Thurman Johnson's daughters.
Pursuant to the Confidential Agreement, on October 2, 2013 the Estate of Thurman Johnson filed its Original Petition in Intervention in the Mills County Lawsuit. Doc. 41-3 at 2-5. The stated reason for the Estate's intervention-contrary to HCF's petition and the Confidential Agreement between the Estate and HCF-was a dispute between the Estate and HCF as to whether Thurman Johnson's transfer to HCF was valid. !d. at 3. Notwithstanding this alleged dispute, the Estate was represented by the same attorney who was representing HCF in the same lawsuit. See Docs. 41-2 at 27 (identifying Stephen R. McKethan as attorney for HCF) and 41-3 at 4 (identifying Stephen R. McKethan as attorney for the Estate).
A settlement was reached in the Mills County Lawsuit on May 12, 2015. Doc. 41-1 at 912. Under the terms of the settlement, the Estate is to receive $600,000 on or before September 15, 2015, and HCF has agreed to release all claims with prejudice and receive no funds or property in return. !d. at 11. II. Discussion
A. Legal Authority The underlying garnishment action was brought pursuant to the Federal Debt Collection Procedures Act ("FDCPA"). Doc. 2; see also 28 U.S.C. § 3205. The FDCPA specifically authorizes the Court to apply the All Writs Act as necessary to support FDCPA post-judgment remedies. See 28 U.S.C. § § 1651, 3202. The All Writs Act can be used to aid the government in collecting debts and may be used against a defendant or those "in privity" with the defendant
Order 3: 12-CV-4737-P Page 4 of8

Case 3:12-cv-04737-P Document 49 Filed 09/11/15 Page 5 of 8 PageID 588
to prevent dissipation or concealment of assets. See, e.g., United States v. Yielding, 657 F.3d 722, 727-28 (8th Cir. 2011).
Additionally courts conduct "proceedings ... in aid ofjudgment or execution" in "accord with the procedure ofthe state where the court is located." Fed. R. Civ. P. 69(a)(l). In Texas, a judgment creditor is entitled to "aid from a court of appropriate jurisdiction ... to obtain satisfaction on the judgment if the judgment debtor owns property ... that: (1) cannot readily be attached or levied on by ordinary legal process; and (2) is not exempt from attachment, execution, or seizure for the satisfaction of liabilities." Tex. Civ. Prac. & Rem.Code § 31.002(a).
B. Analysis Under the broad authority to aid the United States as a judgment creditor in collecting the debt owed by Henry and HCF the Court would have no trouble ordering the turnover of any settlement payment due to Henry or HCF. This matter, however, is complicated by what the United States alleges to be an elaborate scheme to shield assets properly belonging to HCF from the United States' reach. This Court must decide whether settlement proceeds due to the Estate are within this Court's reach such that it can order their turnover as partial satisfaction of Defendants' judgment. The United States urges two distinct theories that allow the Court to disregard the terms of the Settlement Agreement and find that the proceeds of the settlement are property of HCF. First, the United States argues, under a nominee theory, the Estate was acting as HCF's mere nominee for the purposes of pursuing the lawsuit. Alternatively, the United States argues, under a sham-to-perpetrate-a-fraud theory, the entire scheme of the Confidential Agreement and Settlement Agreement is nothing more than a legal fiction which can be ignored by this Court to
Order 3:12-CV-4737-P Page 5 of8

Case 3:12-cv-04737-P Document 49 Filed 09/11/15 Page 6 of 8 PageID 589
prevent an unjust outcome. Because the Court agrees with the United States' nominee theory, the Court need not consider or decide the United States' sham-to-perpetrate-a-fraud argument.
"A nominee theory involves the determination of the true beneficial ownership of property." Oxford Capital Corp. v. United States, 211 F.3d 280, 284 (5th Cir.2000). In other words "a 'nominee' holds legal title to property that really belongs to another who exercises control over and realizes the benefit of it." United States v. Dolenz, No. 3-09-CV-1311-0-BD, (N.D. Tex. June 16, 2011) recommendation adopted No. 3:09-CV-1311-0, (N.D. Tex. Sept. 15, 2011) (citing Sumpter v. United States, 302 F. Supp. 2d 707, 720 (E.D. Mich. 2004). In determining nominee status courts generally consider six factors: (1) whether the nominee paid adequate consideration; (2) whether the nominee took title in anticipation of a lawsuit or occurrence of liabilities; (3) the relationship between the transferor and the nominee; (4) whether the conveyance was recorded; (5) whether the transferor retained possession and control of the property; and (6) whether the transferor continued to the enjoy the benefits of the transferred property." Oxford, 211 F.3d at 284 n.l. 2
The United States argues that applying these factors establishes that the Estate is pursuing the Mills County Lawsuit as HCF's nominee. The Court agrees. Applying the factors one-by-one leaves little room to argue otherwise. First, the Estate paid no consideration in exchange for HCF's interest in J&J. Second, HCF transferred this interest to the Estate within weeks of Henry's wife and daughter being served with the previously discussed writs of garnishments. As soon as it became obvious to Henry and HCF that the United States was expanding or continuing its collection efforts, HCF attempted to shield a substantial asset from
2 Although the majority of the cases involving this nominee theory are tax lien cases, the Court has not found a single case specifically limiting the nominee theory to tax lien cases. Without the benefit of a response, the Court sees no reason why the same theory should not be used in other federal debt collection actions. See Dexia Credit Local v. Rogan, No. 02-C-8288, (N.D. Ill. Oct. 9, 2008) (unpublished) (applying similar factors for a nominee theory in a non-tax lien case). Order 3:12-CV-4737-P Page 6 of8

Case 3:12-cv-04737-P Document 49 Filed 09/11/15 Page 7 of 8 PageID 590
recovery. Third, the nominee is closely related to the transferor. Moreland, who is a 50% owner ofHCF, is the sole beneficiary of the estate. By transferring HCF's interest in the property to the Estate, Moreland retains her ownership interest and, by virtue of the Confidential Agreement3, Henry retains his ownership as well. Not only is the Estate closely related to HCF, thanks to the Confidential Agreement, they are nearly the same entity. Fourth, the conveyance was not recorded. Indeed, the very terms of the Confidential Agreement sought to severely limit those who could learn of its existence. Fifth, HCF's attorney in the Mills County Lawsuit also represented the Estate in the same lawsuit despite an alleged dispute between the two entities. Further, HCF contracted its control of the property interest by spelling out exactly how any potential recovery would be distributed in the Confidential Agreement. Finally, as discussed for the third factor, the transfer from HCF to the Estate was not really a transfer at all, so HCF's enjoyment of its interest in the property remained and the owners of HCF were both scheduled to receive 50% ofHCF's interest in J&J, albeit indirectly.
Moreover, the Settlement Agreement term whereby HCF releases its claims with prejudice is wholly inconsistent with HCF's prior position that it owned the 50% interest in J&J as claimed in the Mills County Lawsuit. See § I.B.l supra. The Estate similarly contradicts itself claiming in its petition for intervention that the transfer from Thurman Johnson to HCF is now disputed after agreeing in the Confidential Agreement that HCF is the owner of the 50% interest in J&J claimed in the Mills County Lawsuit. Id. The Court does not believe it is by accident that the settlement proceeds make their way to the children of HCF's owners, all while avoiding the reach of the United States. This was an intentional scheme concocted solely to shield a substantial sum of money from the United States' collection efforts.
3 The Confidential Agreement guarantees Henry's daughter 50% of the residual recovery from the Mills County Lawsuit after HCF's debts are paid. See§ I.B Supra. Order 3:12-CV-4737-P Page 7 of8

Case 3:12-cv-04737-P Document 49 Filed 09/11/15 Page 8 of 8 PageID 591
Accordingly, the Court finds the Estate pursued the Mills County Lawsuit on behalf of HCF merely as its nominee. Any benefit due to the Estate under the Settlement Agreement is the property of HCF and, as such, is subject to this Court's authority to aid the United States in obtaining satisfaction of its judgment against Henry and HCF. III. Conclusion
For the foregoing reasons, the Court GRANTS the United States' Emergency Motion for Turnover Order. Frieda Johnson is hereby ordered to turnover the $600,000 in settlement proceeds due to be paid to the Estate to the United States for application to its judgment against Henry and HCF.
IT IS SO ORDERED. Signed this l1 1h day of September, 2015.
UNITED STATES DISTRICT JUDGE
Order 3:12-CV-4737-P Page 8 of8

 
 • Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 1 of 73 PageID 3

IN THE UNITED STATES DISTRICT COURT

CLf~K \JS DISTRICT COURT NOn THERN DIST. OF TX FILED

FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

2012 NO'i 20 AM fD: 29

r

UNITED STATES OF AMERICA,

§

DOPUTY CLERK7..

§

Plaintiff,

§ §

8·12CV-4737P

v.

§

No. ___________________

§

KENNETH J. HENRY, individually, §

and d/b/a HENRY'S TURKEY

§

SERVICE, and HILL COUNTRY

§

FARMS, INC. d/b/a HENRY'S

§

TURKEY SERVICE,

§

§

Defendants,

§

§

and

§

§

FIRST NATIONAL BANK, MILLS §

COUNTY STATE BANK, RUSTY §

ROBERSON, AND SOUTHWESTERN §

FARMS & CATTLE CO., INC.,

§

§

Garnishees.

§

APPLICATION FOR WRITS OF GARNISHMENT

The United States of America (United States) applies under 28 U.S.C. §§ 3002,

3014, 3202, and 3205 for issuance of Writs of Garnishment for substantial nonexempt

property belonging to or due Defendants Kenneth J. Henry, individually, and d/b/a

Henry's Turkey Service (Henry), and/or Hill Country Farms, Inc. d/b/a Henry's Turkey

Service (Hill Country) (collectively Defendants), who are judgment debtors of the United

States, and/or Henry's spouse, Gay Henry, individually, and d/b/a Henry's Turkey

Application for Writs of Garnishment- Page 1

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 2 of 73 PageID 4

Service. These writs are sought in connection with a judgment from the United States

District Court for the Southern District of Iowa dated July 20, 2011 in favor of the United

States against the Defendants. On October 11, 2011, this judgment was registered in the

United States District Court for the Northern District of Texas under civil case number

4:11-MC-015.

Computation of the debt as ofNovember 15, 2012 is:

$1,761,554.34

Judgment amount

$ 3,737.85

Interest (.16%)

($ 4,335.20) Credits applied to judgment

$1,760,956.99

Debt balance

The judgment debtors' full names are Kenneth J. Henry, his social security number

is ***-**-5369\ and Hill Country Farms, Inc. d/b/a Henry's Turkey Service, tax identification number, **-***3951 1, their last known addresses are 1451 Hwy 1476,

Proctor, TX 76468 and U.S. 511 Hwy. 84W, Goldthwaite, TX 76844, respectively. Not

less than 30 days has elapsed since demand on the debtors for payment of the debt was

made, and Henry and Hill Country have not paid the amount due.

The names and addresses of the garnishees and their authorized agents are:

1Pursuant to the Privacy Act, 5 U.S.C. § 552a and theE-Government Act of2002, Pub. L. 107347, the social security number and tax identification number are redacted to the last four digits to prevent public disclosure. Upon request of the court, the full social security number and tax identification number will be provided in camera.

Application for Writs of Garnishment- Page 2

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 3 of 73 PageID 5

First National Bank and its affiliates, successors, or assigns Pat Demetruk, Vice President and Cashier 825 N. Patrick Street Dublin, TX 76446-1125
Mills County State Bank and its affiliates, successors, or assigns Mindy Hopper, Cashier 1017 Parker Street Goldthwaite, TX 76844-2379
Rusty Roberson and his affiliates, successors, or assigns Route 2 Dublin, TX 76446
Southwestern Farms & Cattle, Co., Inc. and its affiliates, successors, or assigns Glenda Luscher, Registered Agent 2901 FM 1476 Proctor, TX 76468
The United States believes the garnishees and their affiliates, successors, or
assigns have possession, custody, or control of substantial nonexempt property belonging
to or due Defendants and/or Henry's spouse.
If Defendants and/or Henry's spouse file a claim for exemption to this
garnishment, the United States requests this Court to order that a statement be filed under
oath naming and describing the exemptions, including for each item of property for which
an exemption is claimed, the value, the basis for such valuation, and the nature of the
ownership interest.
The United States is entitled to a surcharge of 10% of the debt to cover the costs of
collecting the debt. See 28 U.S.C. § 3011(a).
Respectfully submitted,

Application for Writs of Garnishment- Page 3

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 4 of 73 PageID 6

SARAH R. SALDANA UNITED STATES ATTORNEY

Assistant United States Attorney Texas State Bar No. 04652300 Burnett Plaza, Suite 1700 801 Cherry Street, Unit 4 Fort Worth, TX 76102-6882 Telephone: 817.252.5200 Facsimile: 817.252.5459 Megan.Fahey@usdoj .gov

Application for Writs of Garnishment- Page 4

Case 3:12-cv-04737-P Document 2 Filed 11/20/12 Page 5 of 73 PageID 7

\~,.. <U~ K9t*~~~ET ' • 1 2 CV- 4 7 3 7 P "&JS44(TXND Rev. 2/10)

.

\

•

s~\ The JS 44 · · ver

a\ the' fo · n contained herein neither replace nor su lement the filing and service of pleadings or other papers as required b law, except as

~c~~s y~u~i provtded
mitiating

~i~d.ockif

sh~t.

rm, approved by the Judicial Conference of the tl'nited States in September 1974, IS required for the use of the Clerk ofChurt for the purpose of (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) P
United States of America

DEFENDANTS
Kenneth J. Henry, individually, and d/b/a Henry's Turkey Service
and Hill Country Farms, Inc. d/b/a Henry's Turkey Service

(b) County of Residence of First Listed Plaintiff
(EXCEPT IN U.S. PLAINTIFF CASES)

(C) Attorney's (finn Name, Address, and Telephone Number]

Megan J. Fahey, AUSA

817.252.5200

Burnett Plaza Suite 1700, 801 Cherry Street Unit 4

F rt W rth T 7 102- 82

II. BASIS OF JURISDICTION (Place an "X" in One Box Only)

C!l: I U.S. Government Plaintiff

0 3 Federal Question (U.S. Government Not a Party)

0 2 U.S. Government Defendant

0 4 Diversity (IndiCate Citizenship of Parties in Item Ill)

E1'/ED County of Residence of First Listed Defepr.iaJU'--:=~~~~~~~~¥;;~~:::;;, (IN U.S. PLAIN IFF CAS'R?F~

NOTE: IN LAND CONDEMNATIO C;\515· USE I HE COCA liON OF I HE 1

LAND INVOLVED.

'

i

Attorneys (If Known)
Attorney for

{ NOV 2 Q 2012 !
David Scie inski

both Defendants. 108 E. 4th treet.L-----_,..~:.-.-'

.732.2 2

Wilton lA 277

III. CITIZENSHIP OF PRINCIPAL P RTIE~1

aintiff

(For Diversity Cases Only)

and One Box for Defendant)

Citizen of This State

PTF DEF 01 01 Incorporated or Principal Place

PTF DEF 0 4 04

of Business In This State

Citizen of Another State

0 2 0 2 Incorporated and Principal Place of Business In Another State

0 5 05

0 3 0 3 Foreign Nation

0 6 06

,,I, V NATURE OF SUIT (Place an "X" in One Box Onlv)

CONTRACT<·''

h)·.,'

'"+>:,f:>;:)"' '·TORTS· ' ...'<'.:~j!'{',\f','•:f,..,,

FORFEITUREIPENA:LTY

. 'BANKRUPT<?

:s'l1

0 II 0 Insurance

PERSONAL INJURY

PERSONAL INJURY 0 610 Agriculture

0 422 Appeal28 USC 158

0 400 State Reapportionment

0 120 Marine 0 130 Miller Act

0 310 Airplane 0 315 Airplane Product

0 362 Personal Injury Med. Malpractice

0 620 Other Food & Drug 0 625 Drug Related Seizure

0 423 Withdrawal
28 usc 157

0 410 Antitrust 0 430 Banks and Banking

0 I40 Negotiable Instrument

Liability

0 365 Personal Injury -

of Property 21 USC 881

0 450 Commerce

0 150 Recovery of Overpayment 0 320 Assault, Libel &

Product Liability 0 630 Liquor Laws

GHTS

0 460 Deportation

& Enforcement of Judgn.,nt

Slander

0 368 Asbestos Personal 0 640 RR & Truck

0 820 Copyrights

0 470 Racketeer Influenced and

0 151 Medicare Act

0 330 Federal Employers'

Injury Product

0 650 Airline Regs.

0 830 Patent

Corrupt Organizations

0 152 Recovery of Defaulted

Liability

Liability

0 660 Occupational

0 840 Trademark

0 480 Consumer Credit

Student Loans

0 340 Marine

PERSONAL PROPERTY

Safety/Health

0 490 Cable/Sat TV

(Excl. Veterans)

0 34 5 Marine Product

0 153 Recovery of Overpayment

Liability

0 370 Other Fraud 0 371 Truth in Lending

Ll 690 Other LARf)R·

,.,,,

LJ 810 Selective Service 0 850 Securities/Commodities/

of Veteran's Benefits

0 350 Motor Vehicle

0 380 Other Personal

0 710 Fair Labor Standards

0 861 HIA (!395ft)

Exchange

0 160 Stockholders' Suits LJ 190 Other Contract

0 355 Motor Vehicle Product Liability

Property Damage 0 385 Property Damage

Act

0 862 Black Lung (923)

0 875 Customer Challenge

0 720 Labor/Mgmt. Relations 0 863 DIWC/DIWW (405(g))

12 usc 3410

0 195 Contract Product Liability 0 360 Other Personal

Product Liability

0 730 Labor/Mgmt.Reporting 0 864 SSID Title XVI

R 890 Other Statutory Actions

0 196 Franchise ·.. REAL PROPERTY:

Injury

& Disclosure Act

/:<:<?JVII.RIGHTS O;.:;,.;,. ,,p.JUSONER PETITIONS.,:; 0 740 Railway Labor Act

0 865 RSl (405(g))

0 891 Agricultural Acts

FEDERALTA:XSO'J'!Es::s> 0 892 Economic Stabilization Act

0 21 0 Land Condemnation

0 441 Voting

0 51 0 Motions to Vacate 0 790 Other Labor Litigation 0 870 Taxes (U.S. Plaintiff 0 893 Environmental Matters

0 220 Foreclosure

0 442 Employment

Sentence

0 791 Empl. Ret. Inc.

or Defendant)

0 894 Energy Allocation Act

0 230 Rent Lease & Ejectment 0 443 Housing/

0 240 Torts to Land

Accommodations

Habeas Corpus: 0 530 General

Security Act

0 871 IRS-Third Party
26 usc 7609

0 895 Freedom oflnfonnation Act

0 245 Tort Product Liability

0 444 Welfare

0 535 Death Penalty

IMMIGRAlJ;

0 900Appeal of Fee Determination

0 290 All Other Real Property 0 445 Amer. w/Disabilities- 0 540 Mandamus & Other 0 462 Naturalization Application

Under Equal Access

Employment

0 550 Civil Rights

0 463 Habeas Corpus -

to Justice

0 446 Amer. w/Disabilities- 0 555 Prison Condition

Alien Detainee

0 950 Constitutionality of

Other

0 465 Other Immigration

State Statutes

0 440 Other Civil Rights

Actions

V. ORIGIN
lSI! Original
Proceeding

(Place an "X" in One Box Only)

0 2 Removed from

0 3 Remanded from

State Court

Appellate Court

0 4 Reinstated or 0
Reopened

5 Transferred from 0 6 Multidistrict

another dtstnct

Litigation

s eci

Appeal to District

0

7

Judge from Magistrate

Jud ment

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
VI. CAUSE OF ACTION ~2:.t.8,!=U~.S::~...~C.:,;.3~2:..~;0~5=--~G:E.a!.!.rn!.!>is!.!.!h.u.m!.Sle.u.nt!;___ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Brief description of cause:

VII. REQUESTED IN COMPLAINT:

0 CHECK IF THIS IS A CLASS ACTION
UNDER F.RCP 23

DEMAND$ 1.760,956.99

CHECK YES only if demanded in complaint:

JURY DEMAND:

0 Yes llJNo

VIII. RELATED CASE(S) (See instructions)

PENDING OR CLOSED:

John McBryde
JUDGE

4:11-MC-015
DOCKET NUMBE

FOR OFFICE USE ONLY RECEIPT#----- A M O U N T - - - - - - - - APPLYING I F P - - - - - - -

J U D G E - - - - - - - MAG. J U D G E - - - - - - - - - -

,., • Case-3':1~ ~2-~cv.. -04737-P Document 2 Filed 11/20/12

•Page 6 of 73 PageID 8

,..,,.Yi?

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA,

§

§

Plaintiff,

§

§

v.

§

§

KENNETH J. HENRY, individually, §

and d/b/a HENRY'S TURKEY

§

SERVICE, and HILL COUNTRY

§

l,c•f

FARMS, INC. d/b/a HENRY'S

§

TURKEY SERVICE,

§

§

Defendants,

§

§

and

§

§

FIRST NATIONAL BANK,

§

§

Garnishee.

§

B:ol 2 cv- 4 7 3 7 p

WRIT OF GARNISHMENT

To: First National Bank and its affiliates, successors, or assigns Pat Demetruk, Vice President and Cashier 825 N. Patrick Street Dublin, TX 76446-1125

An Application for Writs of Garnishment seeking property belonging to or due

Defendants Kenneth J. Henry, individually, and d/b/a Henry's Turkey Service (Henry),

and Hill Country Farms, Inc. d/b/a Henry's Turkey Service (Hill Country) (collectively

Defendants), who are judgment debtors of the United States of America (United States),

and/or Henry's spouse, Gay Henry, individually, and d/b/a Henry's Turkey Service, was

Writ of Garnishment- Page 1

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 7 of 73 PageID 9

filed with this Court.

Computation of the debt as ofNovember 15, 2012 is:

$1,761,554.34

Judgment amount

$ 3,737.85

Interest (.16%)

($ 4.335.20) Credits applied to judgment

$1,760,956.99

Debt balance

Pending further order of this Court, you shall withhold and retain all property in

which Defendants and/or Henry's spouse have a substantial nonexempt interest and for

which you are or may become indebted to Defendants and/or Henry's spouse. See 28

U.S.C. § 3205(c)(2)(F). Do not deliver the property to the United States at this time.

Instead, withhold and retain the property until the Court orders its distribution. !d.

You are required by law to file an answer within ten days of your receipt of this

writ advising the Court whether you hold as of the date you were served with this writ or

will hold substantial nonexempt property for Defendants and/or Henry's spouse, and mail

or deliver the original answer to the United States District Clerk, 1100 Commerce Street,

Room 1452, Dallas, TX 75242; and mail copies to Kenneth J. Henry, individually, and

d/b/a Henry's Turkey Service, and Hill Country Farms, Inc. d/b/a Henry's Turkey

Service, through their attorney David Scieszinski, 108 E. 41h Street, Wilton, lA 52778;

Gay Henry, individually, and d/b/a Henry's Turkey Service, 1451 Hwy. 1476, Proctor, TX

76468; Robin Aaberg, 603 Grand Oaks Court, Alvord, TX 76225-6020; Thomas Aaberg,

Writ of Garnishment- Page 2

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 8 of 73 PageID 10

•
603 Grand Oaks Court, Alvord, TX 76225-6020; and Megan J. Fahey, Assistant United

States Attorney, Burnett Plaza, Suite 1700, 801 Cherry Street, Unit 4, Fort Worth, TX

76102-6882. See 28 U.S.C. § 3205(c). Additional information is included in the attached

Plaintiff's Instructions to Garnishee.

If you fail to answer this writ or withhold property in accordance with this writ, the

United States may petition this Court for an order requiring you to appear before this

Court to answer this writ and withhold property before the appearance date. See 28

U.S.C. § 3205(c)(6). Ifyou fail to answer, or appear and fail to show good cause why

you failed to comply with this writ, the Court shall enter a judgment against you for the

value of Defendants' and/or Henry's spouse's substantial nonexempt property. !d. The

Court may award a reasonable attorney's fee to the United States and against you if this

writ is not answered by the time specified by law and a petition is filed requiring you to

appear. !d.

Signed this _ _ _ _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ 2012.

UNITED STATES DISTRICT CLERK NORTHERN DISTRICT OF TEXAS

Writ of Garnishment- Page 3

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 9 of 73 PageID 11

. \ t,\)
s~~"'"

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

. UNITED STATES OF AMERICA,

§

§

Plaintiff,

§

§

v.

§

§

KENNETH J. HENRY, individually, §

and d/b/a HENRY'S TURKEY

§

SERVICE, and HILL COUNTRY

§

FARMS, INC. d/b/a HENRY'S

§

TURKEY SERVICE,

§

§

Defendants,

§

§

and

§

§

FIRST NATIONAL BANK,

§

§

Garnishee.

§

I•12CV-47iJ7!'
No. _______________________

CLERK'S NOTICE OF POST-JUDGMENT GARNISHMENT TO DEFENDANTS

You are notified, pursuant to 28 U.S.C. § 3202, that your property is being sought

by the United States of America (United States), which holds a judgment from the United

States District Court for the Southern District of Iowa against you dated July 20, 2011.

On October 11, 2011, this judgment was registered in the United States District Court for

the Northern District of Texas under civil case number 4:11-MC-015.

Computation of the debt as ofNovember 15, 2012 is:

$1,761,554.34

Judgment amount

Clerk's Notice of Post-Judgment Garnishment to Defendants- Page I

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 10 of 73 PageID 12

$ 3,737.85

Interest (.16%)

($ 4,335.20) Credits applied to judgment

$1,760,956.99

Debt balance

Exemptions may protect the property from being taken by the United States if you

can show exemptions apply. See 28 U.S.C. § 3014(a). The attached Claim for

Exemptions, Request for Hearing, and/or Request for Transfer contains a summary of the

major exemptions that apply.

You have a right to ask the Court to return your property if you think that you do

not owe the debt to the government, or if you think the property the government seeks

qualifies under an exemption(s). For each item that you claim is exempt from

garnishment, you shall file a statement under oath naming and describing the

exemption(s), including, for each item of property for which you claim an exemption, the

value, the basis for such valuation, and the nature of your interest.

If you want a hearing, you must notify the Court within 20 days after you receive

this notice. Your request must be in writing, and you may use the attached form to

request the hearing. You must mail or deliver the original to the United States District

Clerk, 1100 Commerce Street, Room 1452, Dallas, TX 75242. You must also mail a

copy to Megan J. Fahey, Assistant United States Attorney, Burnett Plaza, Suite 1700, 801

Cherry Street, Unit 4, Fort Worth, TX 76102-6882, so the government will know you

want a hearing.

Clerk's Notice of Post-Judgment Garnishment to Defendants -Page 2

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 11 of 73 PageID 13

If you are entitled to a hearing, the hearing will take place within five days after the United States District Clerk receives your request, if you ask for it to take place that quickly, or as soon after that as possible. The Court will issue an order advising you of the time, place, and date of any hearing scheduled.
At the hearing, you may explain to the judge why you believe the property the government seeks is exempt or why you think you do not owe the debt to the government. The Court shall determine the extent, if any, to which your exemption claims apply. See 28 U.S.C. § 3014(b)(2). Unless it is reasonably evident that the exemptions apply, you shall bear the burden of persuasion. !d. If you do not request a hearing, your property may be delivered to the United States and applied to the debt you owe.
If you think you live outside the federal judicial district where this Court is located, you may request, not later than 20 days after you receive this notice, that this proceeding be transferred by this Court to the federal judicial district where you reside. You must make your request in writing, and mail or deliver the original to the United States District Clerk, 1100 Commerce Street, Room 1452, Dallas, TX 75242. You must also mail a copy of the request to Megan J. Fahey, Assistant United States Attorney, Burnett Plaza, Suite 1700, 801 Cherry Street, Unit 4, Fort Worth, TX 76102-6882, so the government will know you want the proceeding to be transferred. You may use the attached form to request a transfer.
Be sure to keep a copy of this notice for your records. If you have any questions

Clerk's Notice of Post-Judgment Garnishment to Defendants- Page 3

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 12 of 73 PageID 14

about your rights or this procedure, you should contact a lawyer, an office of public legal assistance, or the United States District Clerk. The United States District Clerk is not permitted to give legal advice, but may refer you to other sources of information.

UNITED STATES DISTRICT CLERK NORTHERN DISTRICT OF TEXAS
Dme _______________________________

Clerk's Notice of Post-Judgment Garnishment to Defendants- Page 4

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 13 of 73 PageID 15

S"~·tc'...t1."-.~.,.\.•-~\)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA,

§

§

Plaintiff,

§

§ ··12CV-4?3?P

v.

§ No. _________________________

§

KENNETH J. HENRY, individually, §

and d/b/a HENRY'S TURKEY

§

SERVICE, and HILL COUNTRY

§

FARMS, INC. d/b/a HENRY'S

§

TURKEY SERVICE,

§

§

Defendants,

§

§

and

§

§

FIRST NATIONAL BANK,

§

§

Garnishee.

§

CLAIM FOR EXEMPTIONS, REQUEST FOR HEARING, AND/OR REQUEST FOR TRANSFER

To complete this form, check the adjacent space(s) to an exemption(s) you are

claiming, check the box below to request a hearing, and/or check the box below to request

a transfer to another federal judicial district. You must mail or deliver the original of this

form to the United States District Clerk and mail a copy to the United States of America,

as explained in the attached Clerk's Notice of Post-Judgment Garnishment to Defendants.

See 28 U.S.C. §§ 3014(b)(l), and 3202(b).

Major exemptions that you may claim as property exempt from this garnishment

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page I

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 14 of 73 PageID 16

are summarized below. You may claim property exempt under 11 U.S.C. § 522(d) of the

United States Bankruptcy Code, or property exempt under federal law - other than

exemptions under the bankruptcy code, or property exempt under Texas state law. See 28

U.S.C. § 3014(a). You cannot claim exemptions under the bankruptcy code, federal law,

and state law. To claim state exemptions, you must have been a resident of Texas at least

180 days immediately preceding the date the attached application was filed. !d.

SUMMARY OF UNITED STATES BANKRUPTCY CODE EXEMPTIONS

_ _ (1) The debtor's aggregate interest not to exceed $15,000 in real or personal property that the debtor or dependent uses as a residence or in a burial plot.

_ _ (2) The debtor's interest not to exceed $2,400 in one motor vehicle.

_ _ (3)

The debtor's interest not to exceed $400 in any particular item or $8,000 in aggregate value in household furnishings, wearing apparel, animals, or crops held primarily for personal use of the debtor or dependent.

_ _ (4) The debtor's aggregate interest not to exceed $1,000 in jewelry held primarily for personal use of the debtor or dependent.

_ _ (5)

The debtor's aggregate interest in any property not to exceed $800 plus up to $7,500 of any unused amount of the exemption provided in (1) of this subsection.

_ _ (6) The debtor's aggregate interest not to exceed $1,500 in professional books or tools of the trade of the debtor or dependent.

_ _ (7) Any unmatured life insurance contract owned by the debtor, other than a credit life insurance contract.

_ _ (8)

The debtor's aggregate interest not to exceed $8,000 less any amount of property transferred under section 542(d) of this title, in any accrued dividend or interest under, or loan value of, any unmatured life insurance contract owned by the debtor under which the insured is the debtor or an

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 2

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 15 of 73 PageID 17

individual of whom the debtor is a dependent.
_ _ (9) Professionally prescribed health aids for the debtor or dependent.
(10) The debtor's right to receive:
_ _ (A) social security, unemployment, or local public assistance benefits
_ _ (B) veterans' benefits
_ _ (C) disability, illness, or unemployment benefits
_ _ (D) alimony, support, or separate maintenance for the reasonable support of the debtor and dependents
_ _ (E) payment under a stock bonus, pension, profitsharing, or annuity plan on account of illness, disability, death, age, or length of service, to reasonably support the debtor and dependants, with exceptions outlined in 11 U.S.C. § 522(d)(IO)(E).
(11) The debtor's right to receive, or property traceable to:
_ _ (A) an award under a crime victim's reparation law
_ _ (B) payment for the wrongful death of an individual of whom debtor was a dependent to reasonably support the debtor and dependants
_ _ (C) payment under a life insurance contract that insured the life of an individual of whom the debtor was a dependent on the date of death to reasonably support the debtor and dependants
_ _ (D) payment not to exceed $15,000 for personal bodily injury of the debtor or an individual of whom the debtor is a dependent, with exceptions outlined in 11 U.S.C. § 522(d)(11)(D)
_ _ (E) payment for loss of future earnings of the debtor or an individual of whom the debtor is or was a dependent to reasonably support the debtor and dependents.
_ _ (12) Retirement funds in an account exempt under sections 401, 403, 408, 408A,

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 3

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•Page 16 of 73 PageID 18

_ _ 1.
_ _ 2. _ _ 3. _ _ 4.
_ _ 5. _ _ 6. _ _ 7. _ _ 8. _ _ 9.

414, 457, or 501(a) of the Internal Revenue Code of 1986. See 11 U.S.C. § 522(d).
SUMMARY OF MAJOR FEDERAL EXEMPTIONS
Federal Old-Age, Survivors, and Disability Insurance benefits. 42 U.S.C. § 407.
Veterans' benefits. 38 U.S.C. § 5301.
Annuities of retired servicemen. 10 U.S.C. § 1440.
Federal civil service retirement benefits. 5 U.S.C. § 8346, and 22 U.S.C. § 4060(c).
Annuities to survivors of federal judicial officials. 28 U.S.C. § 376(n).
Longshore and harbor workers compensation. 33 U.S.C. § 916.
Black lung benefits. 30 U.S.C. §§ 931(b)(2)(F), 932(a)).
Master and seaman's wages. 46 U.S.C. §§ 11108-11109.
Railroad employees retirement and unemployment benefits. 45 U.S.C. §§ 231m(a), 352(e).

SUMMARY OF MAJOR TEXAS STATE EXEMPTIONS
§ 41.001, Texas Property Code. Interests in Land Exempt from Seizure.
_ _(a) A homestead and one or more lots used for a place of burial are exempt from seizure for the claims of creditors except for encumbrances properly fixed on homestead property.
§ 42.001, Texas Property Code. Personal Property Exemption.
(a) Personal property, as described in Section 42.002, is exempt from garnishment or execution if:

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 4

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•Page 17 of 73 PageID 19

_ _ (1)

the property is provided for a family and has an aggregate fair market value of not more than $60,000, exclusive of any encumbrances; or

_ _ (2)

the property is owned by a single adult and has an aggregate fair market value of not more than $30,000, exclusive of any encumbrances.

(b) The following personal property is exempt and is not included in the aggregate limitations prescribed by Subsection (a):

_ _ (1) current wages for personal services, except for the enforcement of court-ordered child support payments

_ _ (2) professionally prescribed health aids of a debtor or dependent

_ _ (3)

alimony, support, or separate maintenance received or to be received by the debtor for the support of the debtor or dependent

_ _ (4) a religious bible or book containing sacred writings of a religion

(c) Except as provided by Subsection (b)(4), this section does not prevent seizure by a secured creditor.

_ _ (d) Unpaid commissions for personal services not to exceed 25% of the aggregate limitations prescribed by Subsection (a) are exempt from seizure and are included in the aggregate.

_ _ (e) A religious bible or book described in Subsection (b)(4).

§ 42.002, Texas Property Code. Personal Property.

(a) The following personal property is exempt under Section 42.001(a), Texas Property Code:

_ _ (1) home furnishings

_ _ (2) provisions for consumption

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 5

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_ _ (3) farming or ranching vehicles and implements

_ _ (4) tools, equipment, books, and apparatus, including boats and motor vehicles used in a trade or profession

_ _ (5) apparel

_ _ (6) jewelry not to exceed 25% of the aggregate limitations prescribed by Section 42.001(a)

_ _ (7) two firearms

_ _ (8) athletic and sporting equipment, including bicycles

_ _ (9)

a two-, three-, or four-wheeled motor vehicle for each family member or single adult who holds a driver's license or who does not hold a driver's license but who relies on another person to operate the vehicle for the benefit of the nonlicensed person

(10) the following animals and forage on hand for their consumption:

_ _ (A) two horses, mules, or donkeys and a saddle, blanket, and bridle for each

_ _ (B) 12 head of cattle

- - (C) 60 head of other livestock - - (D) 120 fowl _ _ (11) household pets

§ 42.0021, Texas Property Code. Additional Exemption for Certain Savings Plans.

_ _ (a) In addition to the exemption prescribed by Section 42.001, a person's right to the assets held in or to receive payments under any stock bonus, pension, profit-sharing, retirement plan for self-employed individuals, and annuity purchased with assets distributed from that plan, and retirement

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 6

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 19 of 73 PageID 21

annuity or account, described by Section 403(b) or 408A of the Internal Revenue Code of 1986, and individual retirement account, individual retirement annuity, simplified employee pension plan, and health savings account described by Section 223 of the Internal Revenue Code of 1986, is exempt from seizure for the satisfaction of debts unless the plan, contract, or account does not qualify under the Internal Revenue Code of 1986. A person's right to the assets held in or to receive payments under a government or church plan or contract is also exempt unless the plan or contract does not qualify under the federal Employee Retirement Income Security Act of 1974.
_ _ (b) Contributions to an individual retirement account, other than contributions to a Roth IRA described in Section 408A, Internal Revenue Code of 1986, or annuity that exceed the amounts deductible under the Internal Revenue Code of 1986 and any accrued earnings on such contributions are not exempt under this section unless otherwise exempt by law. Amounts qualifying as nontaxable rollover contributions under Section 402(a)(5), 403(a)(4), 403(b)(8), or 408(d)(3) of the Internal Revenue Code of 1986 before January 1, 1993, are treated as exempt amounts under Subsection (a). Amounts treated as qualified rollover contributions under Section 408A, Internal Revenue Code of 1986, are treated as exempt amounts under Subsection (a). Amounts qualifying as nontaxable rollover contributions under Section 402(c), 402(e)(6), 402(±), 403(a)(4), 403(a)(5), 403(b)(8), 403(b)(10), 408(d)(3), or 408A of the Internal Revenue Code of 1986 on or after January 1, 1993, are treated as exempt amounts under Subsection (a). Amounts qualifying as nontaxable rollover contributions under Section 223(±)(5) of the Internal Revenue Code of 1986 on or after January 1, 2004, are treated as exempt amounts under Subsection (a).
_ _ (c) Amounts distributed from a plan or contract entitled to the exemption under Subsection (a) are not subject to seizure for 60 days after the date of distribution if the amounts qualify as a nontaxable rollover contribution under Subsection (b).
_ _ (d) A participant or beneficiary of a stock bonus, pension, profit-sharing, retirement plan, or government plan is not prohibited from granting a security interest in the participant's or beneficiary's right to the assets held in or to receive payments under the plan to secure a loan to the participant or beneficiary from the plan, and the right to the assets held in or to receive

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 7

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 20 of 73 PageID 22

payments from the plan is subject to seizure for the satisfaction of the security interest or lien granted by the participant or beneficiary to secure the loan.

§ 42.0022, Texas Property Code. Exemption for College Savings Plans.

(a) In addition to the exemption in Section 42.001, a person's right to the assets held in or to receive payments or benefits under any of the following is exempt:

_ _( 1) prepaid tuition contract

_ _(2) savings trust account

_ _(3)

any qualified tuition program of any state that meets the requirements under Section 529, Internal Revenue Code of 1986

List below the description of each exemption claimed, the value, the basis for such

valuation, and nature of your ownership interest. Attach additional paperwork, if needed. !. _____________________________________________________________

2. ---------------------------------------------------------------
3. _____________________________________________________________

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 8

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•Page 21 of 73 PageID 23

AFFIDAVIT The exemptions claimed above, including their descriptions, the value, the basis for such valuation, and the nature of my ownership interest in them, are made under oath and penalty of perjury.

(Signature)

(Print Name)

STATE OF-------------------COUNTY OF -----------------
Subscribed and sworn to before me this _ _ _ _ _ _ _ day of _______ 2012.

Notary Public Signature

My Commission expires: _ _ _ __ (Seal)

0 I am requesting a hearing for the exemptions checked above. 0 I am not requesting a hearing for the exemptions checked above. 0 I am requesting a transfer to the federal district where I reside in the
_ _ _ _ _ _ _ _ _ _ (district) of _ _ _ _ _ _ _ _ _ _ _(state).

David Scieszinski, attorney for Defendants Kenneth J. Henry, individually, and d/b/a Henry's Turkey Service, and Hill Country Farms, Inc. d/b/a Henry's Turkey Service
Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 9

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 22 of 73 PageID 24

Iowa BarNo. Address:_ _ _ _ _ _ _ _ _ _ _ _ __
Email:_ _ _ _ _ _ _ _ _ _ _ _ _ __ Daytime telephone:_ _ _ _ _ _ _ _ __ Date:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 10

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 23 of 73 PageID 25

~ t·'" \::\, ) c_~,.. .\ '"V

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

.\.J y

DALLAS DIVISION

UNITED STATES OF AMERICA, §

§

Plaintiff,

§

§

v.

§

§

KENNETH J. HENRY, individually, §

and d/b/a HENRY'S TURKEY

§

SERVICE, and HILL COUNTRY

§

FARMS, INC. d/b/a HENRY'S

§

TURKEY SERVICE,

§

§

Defendants,

§

§

and

§

§

MILLS COUNTY STATE BANK,

§

§

Garnishee.

§

I·12CV-473?P No. ___________________

WRIT OF GARNISHMENT

To: Mills County State Bank Mindy Hopper, Cashier 10 17 Parker Street Goldthwaite, TX 76844-2379

An Application for Writs of Garnishment seeking property belonging to or due

Defendants Kenneth J. Henry, individually, and d/b/a Henry's Turkey Service (Henry),

and Hill Country Farms, Inc. d/b/a Henry's Turkey Service (Hill Country) (collectively

Defendants), who are judgment debtors of the United States of America (United States),

and/or Henry's spouse, Gay Henry, individually, and d/b/a Henry's Turkey Service, was

Writ of Garnishment- Page 1

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 24 of 73 PageID 26

..
filed with this Court.

Computation ofthe debt as ofNovember 15, 2012 is:

$1,761,554.34

Judgment amount

$ 3,737.85

Interest (.16%)

($ 4,335.20) Credits applied to judgment

$1,760,956.99

Debt balance

Pending further order of this Court, you shall withhold and retain all property in

which Defendants and/or Henry's spouse have a substantial nonexempt interest and for

which you are or may become indebted to Defendants and/or Henry's spouse. See 28

U.S.C. § 3205(c)(2)(F). Do not deliver the property to the United States at this time.

Instead, withhold and retain the property until the Court orders its distribution. !d.

You are required by law to file an answer within ten days of your receipt of this

writ advising the Court whether you hold as of the date you were served with this writ or

will hold substantial nonexempt property for Defendants and/or Henry's spouse, and mail

or deliver the original answer to the United States District Clerk, 1100 Commerce Street,

Room 1452, Dallas, TX 75242; and mail copies to Kenneth J. Henry, individually, and

d/b/a Henry's Turkey Service, and Hill Country Farms, Inc. d/b/a Henry's Turkey

Service, through their attorney David Scieszinski, 108 E. 41h Street, Wilton, lA 52778;

Gay Henry, individually, and d/b/a Henry's Turkey Service, 1451 Hwy. 1476, Proctor, TX

76468; and Megan J. Fahey, Assistant United States Attorney, Burnett Plaza, Suite 1700,

Writ of Garnishment- Page 2

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 25 of 73 PageID 27

• 801 Cherry Street, Unit 4, Fort Worth, TX 76102-6882. See 28 U.S.C. § 3205(c).

Additional information is included in the attached Plaintiffs Instructions to Garnishee.

If you fail to answer this writ or withhold property in accordance with this writ, the

United States may petition this Court for an order requiring you to appear before this

Court to answer this writ and withhold property before the appearance date. See 28

U.S.C. § 3205(c)(6). Ifyou fail to answer, or appear and fail to show good cause why

you failed to comply with this writ, the Court shall enter a judgment against you for the

value of Defendants' and/or Henry's spouse's substantial nonexempt property. !d. The

Court may award a reasonable attorney's fee to the United States and against you if this

writ is not answered by the time specified by law and a petition is filed requiring you to

appear. !d.

Signed this _ _ _ _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ 2012.

UNITED STATES DISTRICT CLERK NORTHERN DISTRICT OF TEXAS

Writ of Garnishment- Page 3

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•Page 26 of 73 PageID 28

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
v.
KENNETH J. HENRY, individually, and d/b/a HENRY'S TURKEY SERVICE, and HILL COUNTRY FARMS, INC. d/b/a HENRY'S TURKEY SERVICE,
Defendants,
and
MILLS COUNTY STATE BANK,
Garnishee.

§ § §
~ 8.;.12CV-4'73'7P
§ § § § § § § § § § § § § §

CLERK'S NOTICE OF POST-JUDGMENT GARNISHMENT TO DEFENDANTS

You are notified, pursuant to 28 U.S.C. § 3202, that your property is being sought

by the United States of America (United States), which holds a judgment from the United

States District Court for the Southern District of Iowa against you dated July 20, 2011.

On October 11, 2011, this judgment was registered in the United States District Court for

the Northern District of Texas under civil case number 4:11-MC-015.

Computation of the debt as ofNovember 15, 2012 is:

$1,761,554.34

Judgment amount

Clerk's Notice of Post-Judgment Garnishment to Defendants- Page 1

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 27 of 73 PageID 29

$ 3,737.85

Interest (.16%)

($ 4.335.20) Credits applied to judgment

$1,760,956.99

Debt balance

Exemptions may protect the property from being taken by the United States if you

can show exemptions apply. See 28 U.S.C. § 3014(a). The attached Claim for

Exemptions, Request for Hearing, and/or Request for Transfer contains a summary of the major exemptions that apply.

You have a right to ask the Court to return your property if you think that you do not owe the debt to the government, or if you think the property the government seeks qualifies under an exemption(s). For each item that you claim is exempt from

garnishment, you shall file a statement under oath naming and describing the exemption(s), including, for each item of property for which you claim an exemption, the

value, the basis for such valuation, and the nature of your interest. If you want a hearing, you must notify the Court within 20 days after you receive

this notice. Your request must be in writing, and you may use the attached form to request the hearing. You must mail or deliver the original to the United States District

Clerk, 1100 Commerce Street, Room 1452, Dallas, TX 75242. You must also mail a copy to Megan J. Fahey, Assistant United States Attorney, Burnett Plaza, Suite 1700, 801 Cherry Street, Unit 4, Fort Worth, TX 76102-6882, so the government will know you want a hearing.

Clerk's Notice of Post-Judgment Garnishment to Defendants- Page 2

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•Page 28 of 73 PageID 30

If you are entitled to a hearing, the hearing will take place within five days after the United States District Clerk receives your request, if you ask for it to take place that quickly, or as soon after that as possible. The Court will issue an order advising you of the time, place, and date of any hearing scheduled.
At the hearing, you may explain to the judge why you believe the property the government seeks is exempt or why you think you do not owe the debt to the government. The Court shall determine the extent, if any, to which your exemption claims apply. See 28 U.S.C. § 3014(b)(2). Unless it is reasonably evident that the exemptions apply, you shall bear the burden of persuasion. !d. If you do not request a hearing, your property may be delivered to the United States and applied to the debt you owe.
If you think you live outside the federal judicial district where this Court is located, you may request, not later than 20 days after you receive this notice, that this proceeding be transferred by this Court to the federal judicial district where you reside. You must make your request in writing, and mail or deliver the original to the United States District Clerk, 1100 Commerce Street, Room 1452, Dallas, TX 75242. You must also mail a copy of the request to Megan J. Fahey, Assistant United States Attorney, Burnett Plaza, Suite 1700, 801 Cherry Street, Unit 4, Fort Worth, TX 76102-6882, so the government will know you want the proceeding to be transferred. You may use the attached form to request a transfer.
Be sure to keep a copy of this notice for your records. If you have any questions

Clerk's Notice of Post-Judgment Garnishment to Defendants- Page 3

..

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 29 of 73 PageID 31

about your rights or this procedure, you should contact a lawyer, an office of public legal assistance, or the United States District Clerk. The United States District Clerk is not permitted to give legal advice, but may refer you to other sources of information.

UNITED STATES DISTRICT CLERK NORTHERN DISTRICT OF TEXAS
Dme _______________________________

Clerk's Notice of Post-Judgment Garnishment to Defendants- Page 4

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 30 of 73 PageID 32

, e\)

C.'.~~~\;

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

~v

UNITED STATES OF AMERICA,

§

§

Plaintiff,

§

v.

§ §

1.-12 cv- 4 7 a?P

§

KENNETH J. HENRY, individually, §

and d/b/a HENRY'S TURKEY

§

SERVICE, and HILL COUNTRY

§

FARMS, INC. d/b/a HENRY'S

§

TURKEY SERVICE,

§

§

Defendants,

§

§

and

§

§

MILLS COUNTY STATE BANK,

§

§

Garnishee.

§

CLAIM FOR EXEMPTIONS, REQUEST FOR HEARING, AND/OR REQUEST FOR TRANSFER

To complete this form, check the adjacent space(s) to an exemption(s) you are

claiming, check the box below to request a hearing, and/or check the box below to request

a transfer to another federal judicial district. You must mail or deliver the original of this

form to the United States District Clerk and mail a copy to the United States of America,

as explained in the attached Clerk's Notice of Post-Judgment Garnishment to Defendants.

See 28 U.S.C. §§ 3014(b)(l), and 3202(b).

Major exemptions that you may claim as property exempt from this garnishment

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 1

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 31 of 73 PageID 33

are summarized below. You may claim property exempt under 11 U.S.C. § 522(d) ofthe

United States Bankruptcy Code, or property exempt under federal law - other than

exemptions under the bankruptcy code, or property exempt under Texas state law. See 28

U.S.C. § 3014(a). You cannot claim exemptions under the bankruptcy code, federal law,

and state law. To claim state exemptions, you must have been a resident of Texas at least

180 days immediately preceding the date the attached application was filed. !d.

SUMMARY OF UNITED STATES BANKRUPTCY CODE EXEMPTIONS

_ _ (1) The debtor's aggregate interest not to exceed $15,000 in real or personal property that the debtor or dependent uses as a residence or in a burial plot.

- - (2) _ _ (3)

The debtor's interest not to exceed $2,400 in one motor vehicle.
The debtor's interest not to exceed $400 in any particular item or $8,000 in aggregate value in household furnishings, wearing apparel, animals, or crops held primarily for personal use of the debtor or dependent.

_ _ (4) The debtor's aggregate interest not to exceed $1,000 in jewelry held primarily for personal use of the debtor or dependent.

_ _ (5)

The debtor's aggregate interest in any property not to exceed $800 plus up to $7,500 of any unused amount of the exemption provided in (1) of this subsection.

_ _ (6) The debtor's aggregate interest not to exceed $1,500 in professional books or tools of the trade of the debtor or dependent.

_ _ (7) Any unmatured life insurance contract owned by the debtor, other than a credit life insurance contract.

_ _ (8)

The debtor's aggregate interest not to exceed $8,000 less any amount of property transferred under section 542(d) of this title, in any accrued dividend or interest under, or loan value of, any unmatured life insurance contract owned by the debtor under which the insured is the debtor or an

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 2

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•Page 32 of 73 PageID 34

individual of whom the debtor is a dependent.
_ _ (9) Professionally prescribed health aids for the debtor or dependent.
(10) The debtor's right to receive:
_ _ (A) social security, unemployment, or local public assistance benefits
_ _ (B) veterans' benefits
_ _ (C) disability, illness, or unemployment benefits
_ _ (D) alimony, support, or separate maintenance for the reasonable support of the debtor and dependents
_ _ (E) payment under a stock bonus, pension, profitsharing, or annuity plan on account of illness, disability, death, age, or length of service, to reasonably support the debtor and dependants, with exceptions outlined in 11 U.S.C. § 522(d)(l O)(E).
(11) The debtor's right to receive, or property traceable to:
_ _ (A) an award under a crime victim's reparation law
_ _ (B) payment for the wrongful death of an individual of whom debtor was a dependent to reasonably support the debtor and dependants
_ _ (C) payment under a life insurance contract that insured the life of an individual of whom the debtor was a dependent on the date of death to reasonably support the debtor and dependants
_ _ (D) payment not to exceed $15,000 for personal bodily injury of the debtor or an individual of whom the debtor is a dependent, with exceptions outlined in 11 U.S.C. § 522(d)(11)(D)
_ _ (E) payment for loss of future earnings of the debtor or an individual of whom the debtor is or was a dependent to reasonably support the debtor and dependents.
_ _ (12) Retirement funds in an account exempt under sections 401, 403, 408, 408A,

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 3

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•Page 33 of 73 PageID 35

_ _ 1.
_ _ 2. _ _ 3. _ _ 4.
_ _ 5. _ _ 6. _ _ 7. _ _ 8. _ _ 9.

414, 457, or 501(a) of the Internal Revenue Code of 1986. See 11 U.S.C. § 522(d).
SUMMARY OF MAJOR FEDERAL EXEMPTIONS
Federal Old-Age, Survivors, and Disability Insurance benefits. 42 U.S.C. § 407.
Veterans' benefits. 38 U.S.C. § 5301.
Annuities of retired servicemen. 10 U.S.C. § 1440.
Federal civil service retirement benefits. 5 U.S.C. § 8346, and 22 U.S.C. § 4060(c).
Annuities to survivors of federal judicial officials. 28 U.S.C. § 376(n).
Longshore and harbor workers compensation. 33 U.S.C. § 916.
Black lung benefits. 30 U.S.C. §§ 931(b)(2)(F), 932(a)).
Master and seaman's wages. 46 U.S.C. §§ 11108-11109.
Railroad employees retirement and unemployment benefits. 45 U.S.C. §§ 231m(a), 352(e).

SUMMARY OF MAJOR TEXAS STATE EXEMPTIONS
§ 41.001, Texas Property Code. Interests in Land Exempt from Seizure.
_ _(a) A homestead and one or more lots used for a place of burial are exempt from seizure for the claims of creditors except for encumbrances properly fixed on homestead property.
§ 42.001, Texas Property Code. Personal Property Exemption.
(a) Personal property, as described in Section 42.002, is exempt from garnishment or execution if:

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 4

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 34 of 73 PageID 36

_ _ (1)

the property is provided for a family and has an aggregate fair market value of not more than $60,000, exclusive of any encumbrances; or

_ _ (2)

the property is owned by a single adult and has an aggregate fair market value of not more than $30,000, exclusive of any encumbrances.

(b) The following personal property is exempt and is not included in the aggregate limitations prescribed by Subsection (a):

_ _ (1) current wages for personal services, except for the enforcement of court-ordered child support payments

_ _ (2) professionally prescribed health aids of a debtor or dependent

_ _ (3)

alimony, support, or separate maintenance received or to be received by the debtor for the support of the debtor or dependent

_ _ (4) a religious bible or book containing sacred writings of a religion

(c) Except as provided by Subsection (b)(4), this section does not prevent seizure by a secured creditor.

_ _ (d) Unpaid commissions for personal services not to exceed 25% of the aggregate limitations prescribed by Subsection (a) are exempt from seizure and are included in the aggregate.

_ _ (e) A religious bible or book described in Subsection (b)(4).

§ 42.002, Texas Property Code. Personal Property.

(a) The following personal property is exempt under Section 42.001(a), Texas Property Code:

_ _ (1) home furnishings

_ _ (2) provisions for consumption

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 5

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_ _ (3) farming or ranching vehicles and implements

_ _ (4) tools, equipment, books, and apparatus, including boats and motor vehicles used in a trade or profession

_ _ (5) apparel

_ _ (6) jewelry not to exceed 25% of the aggregate limitations prescribed by Section 42.001(a)

_ _ (7) two firearms

_ _ (8) athletic and sporting equipment, including bicycles

_ _ (9)

a two-, three-, or four-wheeled motor vehicle for each family member or single adult who holds a driver's license or who does not hold a driver's license but who relies on another person to operate the vehicle for the benefit of the nonlicensed person

(10) the following animals and forage on hand for their consumption:

_ _ (A) two horses, mules, or donkeys and a saddle, blanket, and bridle for each

_ _ (B) 12 head of cattle

_ _ (C) 60 head of other livestock

_ _ (D) 120 fowl

_ _ (11) household pets

§ 42.0021, Texas Property Code. Additional Exemption for Certain Savings Plans.

_ _ (a) In addition to the exemption prescribed by Section 42.001, a person's right to the assets held in or to receive payments under any stock bonus, pension, profit-sharing, retirement plan for self-employed individuals, and annuity purchased with assets distributed from that plan, and retirement

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 6

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 36 of 73 PageID 38

annuity or account, described by Section 403(b) or 408A of the Internal Revenue Code of 1986, and individual retirement account, individual retirement annuity, simplified employee pension plan, and health savings account described by Section 223 of the Internal Revenue Code of 1986, is exempt from seizure for the satisfaction of debts unless the plan, contract, or account does not qualify under the Internal Revenue Code of 1986. A person's right to the assets held in or to receive payments under a government or church plan or contract is also exempt unless the plan or contract does not qualify under the federal Employee Retirement Income Security Act of 1974.
_ _ (b) Contributions to an individual retirement account, other than contributions to a Roth IRA described in Section 408A, Internal Revenue Code of 1986, or annuity that exceed the amounts deductible under the Internal Revenue Code of 1986 and any accrued earnings on such contributions are not exempt under this section unless otherwise exempt by law. Amounts qualifying as nontaxable rollover contributions under Section 402(a)(5), 403(a)(4), 403(b)(8), or 408(d)(3) of the Internal Revenue Code of 1986 before January 1, 1993, are treated as exempt amounts under Subsection (a). Amounts treated as qualified rollover contributions under Section 408A, Internal Revenue Code of 1986, are treated as exempt amounts under Subsection (a). Amounts qualifying as nontaxable rollover contributions under Section 402(c), 402(e)(6), 402(f), 403(a)(4), 403(a)(5), 403(b)(8), 403(b)(l0), 408(d)(3), or 408A of the Internal Revenue Code of 1986 on or after January 1, 1993, are treated as exempt amounts under Subsection (a). Amounts qualifying as nontaxable rollover contributions under Section 223(f)(5) of the Internal Revenue Code of 1986 on or after January 1, 2004, are treated as exempt amounts under Subsection (a).
_ _ (c) Amounts distributed from a plan or contract entitled to the exemption under Subsection (a) are not subject to seizure for 60 days after the date of distribution if the amounts qualify as a nontaxable rollover contribution under Subsection (b).
_ _ (d) A participant or beneficiary of a stock bonus, pension, profit-sharing, retirement plan, or government plan is not prohibited from granting a security interest in the participant's or beneficiary's right to the assets held in or to receive payments under the plan to secure a loan to the participant or beneficiary from the plan, and the right to the assets held in or to receive

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 7

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 37 of 73 PageID 39

payments from the plan is subject to seizure for the satisfaction of the security interest or lien granted by the participant or beneficiary to secure the loan.

§ 42.0022, Texas Property Code. Exemption for College Savings Plans.

(a) In addition to the exemption in Section 42.001, a person's right to the assets held in or to receive payments or benefits under any of the following is exempt:

_ _(1) prepaid tuition contract

_ _(2) savings trust account

_ _(3)

any qualified tuition program of any state that meets the requirements under Section 529, Internal Revenue Code of 1986

List below the description of each exemption claimed, the value, the basis for such

valuation, and nature ofyour ownership interest. Attach additional paperwork, if needed. !. _____________________________________________________________

2. _____________________________________________________________

3. _____________________________________________________________

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 8

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 38 of 73 PageID 40

AFFIDAVIT The exemptions claimed above, including their descriptions, the value, the basis for such valuation, and the nature of my ownership interest in them, are made under oath and penalty of perjury.

(Signature)

(Print Name)

STATE OF------------------COUNTY OF -----------------
Subscribed and sworn to before me this _____________ day of ________ 2012.

Notary Public Signature

My Commission expires: ______ (Seal)

0 I am requesting a hearing for the exemptions checked above. 0 I am not requesting a hearing for the exemptions checked above. 0 I am requesting a transfer to the federal district where I reside in the
____________ (district) of _ _ _ _ _ _ _ _ _ _ _(state).

David Scieszinski, attorney for Defendants Kenneth J. Henry, individually, and d/b/a Henry's Turkey Service, and Hill Country Farms, Inc. d/b/a Henry's Turkey Service
Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 9

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 39 of 73 PageID 41

Iowa BarNo. Address:,_ _ _ _ _ _ _ _ _ _ _ _ __
Email:,_ _ _ _ _ _ _ _ _ _ _ _ _ __ Daytime telephone:_ _ _ _ _ _ _ _ __ Date:_ _ _ _ _ _ _ _ _ _ _ _ _ __

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 10

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 40 of 73 PageID 42

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA,

§

§

Plaintiff,

§

§

v.

§

§

KENNETH J. HENRY, individually, §

and d/b/a HENRY'S TURKEY

§

SERVICE, and HILL COUNTRY

§

FARMS, INC. d/b/a HENRY'S

§

TURKEY SERVICE,

§

§

Defendants,

§

§

and

§

§

RUSTY ROBERSON,

§

§

Garnishee.

§

8·12CV-4737P No. ___________________

WRIT OF GARNISHMENT

To: Rusty Roberson and his affiliates, successors, or assigns Route 2 Dublin, TX 76446

An Application for Writs of Garnishment seeking property belonging to or due

Defendants Kenneth J. Henry, individually, and d/b/a Henry's Turkey Service (Henry),

and Hill Country Farms, Inc. d/b/a Henry's Turkey Service (Hill Country) (collectively

Defendants), who are judgment debtors of the United States of America (United States),

and/or Henry's spouse, Gay Henry, individually, and d/b/a Henry's Turkey Service, was

Writ of Garnishment- Page 1

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 41 of 73 PageID 43

filed with this Court.

Computation of the debt as ofNovember 15, 2012 is:

$1,761,554.34

Judgment amount

$ 3,737.85

Interest (.16%)

($ 4.335.20) Credits applied to judgment

$1,760,956.99

Debt balance

Pending further order of this Court, you shall withhold and retain all property in

which Defendants and/or Henry's spouse have a substantial nonexempt interest and for

which you are or may become indebted to Defendants and/or Henry's spouse. See 28

U.S.C. § 3205(c)(2)(F). Do not deliver the property to the United States at this time.

Instead, withhold and retain the property until the Court orders its distribution. !d.

You are required by law to file an answer within ten days of your receipt of this

writ advising the Court whether you hold as of the date you were served with this writ or

will hold substantial nonexempt property for Defendants and/or Henry's spouse, and mail

or deliver the original answer to the United States District Clerk, 1100 Commerce Street,

Room 1452, Dallas, TX 75242; and mail copies to Kenneth J. Henry, individually, and

d/b/a Henry's Turkey Service, and Hill Country Farms, Inc. d/b/a Henry's Turkey

Service, through their attorney David Scieszinski, 108 E. 4th Street, Wilton, lA 52778;

Gay Henry, individually, and d/b/a Henry's Turkey Service, 1451 Hwy. 1476, Proctor, TX

76468; and Megan J. Fahey, Assistant United States Attorney, Burnett Plaza, Suite 1700,

Writ of Garnishment- Page 2

•

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 42 of 73 PageID 44

801 Cherry Street, Unit 4, Fort Worth, TX 76102-6882. See 28 U.S.C. § 3205(c). Additional information is included in the attached Plaintiffs Instructions to Garnishee.
If you fail to answer this writ or withhold property in accordance with this writ, the United States may petition this Court for an order requiring you to appear before this Court to answer this writ and withhold property before the appearance date. See 28 U.S.C. § 3205(c)(6). Ifyou fail to answer, or appear and fail to show good cause why you failed to comply with this writ, the Court shall enter a judgment against you for the value of Defendants' and/or Henry's spouse's substantial nonexempt property. !d. The Court may award a reasonable attorney's fee to the United States and against you if this writ is not answered by the time specified by law and a petition is filed requiring you to appear. !d.

Signed this _ _ _ _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ 2012.

UNITED STATES DISTRICT CLERK NORTHERN DISTRICT OF TEXAS

Writ of Garnishment- Page 3

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•Page 43 of 73 PageID 45

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

§

§

Plaintiff,

§

§

v.

§

§

KENNETH J. HENRY, individually, §

and d/b/a HENRY'S TURKEY

§

SERVICE, and HILL COUNTRY

§

FARMS, INC. d/b/a HENRY'S

§

TURKEY SERVICE,

§

§

Defendants,

§

§

and

§

§

RUSTY ROBERSON,

§

§

Garnishee.

§

1.·1 2 cv- 4 7 37p

CLERK'S NOTICE OF POST-JUDGMENT GARNISHMENT TO DEFENDANTS

You are notified, pursuant to 28 U.S.C. § 3202, that your property is being sought

by the United States of America (United States), which holds a judgment from the United

States District Court for the Southern District of Iowa against you dated July 20, 2011.

On October 11, 2011, this judgment was registered in the United States District Court for

the Northern District of Texas under civil case number 4:11-MC-015.

Computation ofthe debt as ofNovember 15, 2012 is:

$1,761,554.34

Judgment amount

Clerk's Notice of Post-Judgment Garnishment to Defendants- Page 1

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 44 of 73 PageID 46

$ 3,737.85

Interest (.16%)

($ 4.335.20) Credits applied to judgment

$1,760,956.99

Debt balance

Exemptions may protect the property from being taken by the United States if you

can show exemptions apply. See 28 U.S.C. § 3014(a). The attached Claim for

Exemptions, Request for Hearing, and/or Request for Transfer contains a summary of the

major exemptions that apply.

You have a right to ask the Court to return your property if you think that you do

not owe the debt to the government, or if you think the property the government seeks

qualifies under an exemption(s). For each item that you claim is exempt from

garnishment, you shall file a statement under oath naming and describing the

exemption(s), including, for each item of property for which you claim an exemption, the

value, the basis for such valuation, and the nature of your interest.

If you want a hearing, you must notifY the Court within 20 days after you receive

this notice. Your request must be in writing, and you may use the attached form to

request the hearing. You must mail or deliver the original to the United States District

Clerk, 1100 Commerce Street, Room 1452, Dallas, TX 75242. You must also mail a

copy to Megan J. Fahey, Assistant United States Attorney, Burnett Plaza, Suite 1700, 801

Cherry Street, Unit 4, Fort Worth, TX 76102-6882, so the government will know you

want a hearing.

Clerk's Notice of Post-Judgment Garnishment to Defendants- Page 2

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•Page 45 of 73 PageID 47

If you are entitled to a hearing, the hearing will take place within five days after the United States District Clerk receives your request, if you ask for it to take place that quickly, or as soon after that as possible. The Court will issue an order advising you of the time, place, and date of any hearing scheduled.
At the hearing, you may explain to the judge why you believe the property the government seeks is exempt or why you think you do not owe the debt to the government. The Court shall determine the extent, if any, to which your exemption claims apply. See 28 U.S.C. § 3014(b)(2). Unless it is reasonably evident that the exemptions apply, you shall bear the burden of persuasion. Id. If you do not request a hearing, your property may be delivered to the United States and applied to the debt you owe.
If you think you live outside the federal judicial district where this Court is located, you may request, not later than 20 days after you receive this notice, that this proceeding be transferred by this Court to the federal judicial district where you reside. You must make your request in writing, and mail or deliver the original to the United States District Clerk, 1100 Commerce Street, Room 1452, Dallas, TX 75242. You must also mail a copy of the request to Megan J. Fahey, Assistant United States Attorney, Burnett Plaza, Suite 1700, 801 Cherry Street, Unit 4, Fort Worth, TX 76102-6882, so the government will know you want the proceeding to be transferred. You may use the attached form to request a transfer.
Be sure to keep a copy of this notice for your records. If you have any questions

Clerk's Notice of Post-Judgment Garnishment to Defendants- Page 3

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 46 of 73 PageID 48

about your rights or this procedure, you should contact a lawyer, an office of public legal assistance, or the United States District Clerk. The United States District Clerk is not permitted to give legal advice, but may refer you to other sources of information.

UNITED STATES DISTRICT CLERK NORTHERN DISTRICT OF TEXAS
Date -------------------------------

Clerk's Notice of Post-Judgment Garnishment to Defendants- Page 4

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 47 of 73 PageID 49

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA,

§

§

Plaintiff,

§

§

v.

§

§

KENNETH J. HENRY, individually, §

and d/b/a HENRY'S TURKEY

§

SERVICE, and HILL COUNTRY

§

FARMS, INC. d/b/a HENRY'S

§

TURKEY SERVICE,

§

§

Defendants,

§

§

and

§

§

RUSTY ROBERSON,

§

§

Garnishee.

§

8•12CV-4737P
No. _________________________

CLAIM FOR EXEMPTIONS, REQUEST FOR HEARING, AND/OR REQUEST FOR TRANSFER

To complete this form, check the adjacent space(s) to an exemption(s) you are

claiming, check the box below to request a hearing, and/or check the box below to request

a transfer to another federal judicial district. You must mail or deliver the original of this

form to the United States District Clerk and mail a copy to the United States of America,

as explained in the attached Clerk's Notice of Post-Judgment Garnishment to Defendants.

See 28 U.S.C. §§ 3014(b)(l), and 3202(b).

Major exemptions that you may claim as property exempt from this garnishment

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page I

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 48 of 73 PageID 50

are summarized below. You may claim property exempt under 11 U.S.C. § 522(d) of the

United States Bankruptcy Code, or property exempt under federal law - other than

exemptions under the bankruptcy code, or property exempt under Texas state law. See 28

U.S.C. § 3014(a). You cannot claim exemptions under the bankruptcy code, federal law,

and state law. To claim state exemptions, you must have been a resident of Texas at least

180 days immediately preceding the date the attached application was filed. !d.

SUMMARY OF UNITED STATES BANKRUPTCY CODE EXEMPTIONS

_ _ (1) The debtor's aggregate interest not to exceed $15,000 in real or personal property that the debtor or dependent uses as a residence or in a burial plot.

_ _ (2) The debtor's interest not to exceed $2,400 in one motor vehicle.

_ _ (3)

The debtor's interest not to exceed $400 in any particular item or $8,000 in aggregate value in household furnishings, wearing apparel, animals, or crops held primarily for personal use of the debtor or dependent.

_ _ (4) The debtor's aggregate interest not to exceed $1,000 in jewelry held primarily for personal use of the debtor or dependent.

_ _ (5)

The debtor's aggregate interest in any property not to exceed $800 plus up to $7,500 of any unused amount of the exemption provided in (1) of this subsection.

_ _ (6) The debtor's aggregate interest not to exceed $1,500 in professional books or tools of the trade of the debtor or dependent.

_ _ (7) Any unmatured life insurance contract owned by the debtor, other than a credit life insurance contract.

_ _ (8)

The debtor's aggregate interest not to exceed $8,000 less any amount of property transferred under section 542(d) of this title, in any accrued dividend or interest under, or loan value of, any unmatured life insurance contract owned by the debtor under which the insured is the debtor or an

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 2

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 49 of 73 PageID 51

individual of whom the debtor is a dependent.
_ _ (9) Professionally prescribed health aids for the debtor or dependent.
(10) The debtor's right to receive:
_ _ (A) social security, unemployment, or local public assistance benefits
_ _ (B) veterans' benefits
_ _ (C) disability, illness, or unemployment benefits
_ _ (D) alimony, support, or separate maintenance for the reasonable support of the debtor and dependents
_ _ (E) payment under a stock bonus, pension, profitsharing, or annuity plan on account of illness, disability, death, age, or length of service, to reasonably support the debtor and dependants, with exceptions outlined in 11 U.S.C. § 522(d)(10)(E).
(11) The debtor's right to receive, or property traceable to:
_ _ (A) an award under a crime victim's reparation law
_ _ (B) payment for the wrongful death of an individual of whom debtor was a dependent to reasonably support the debtor and dependants
_ _ (C) payment under a life insurance contract that insured the life of an individual of whom the debtor was a dependent on the date of death to reasonably support the debtor and dependants
_ _ (D) payment not to exceed $15,000 for personal bodily injury of the debtor or an individual of whom the debtor is a dependent, with exceptions outlined in 11 U.S.C. § 522(d)(11)(D)
_ _ (E) payment for loss of future earnings of the debtor or an individual of whom the debtor is or was a dependent to reasonably support the debtor and dependents.
_ _ (12) Retirement funds in an account exempt under sections 401,403,408, 408A,

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 3

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 50 of 73 PageID 52

_ _ 1.
_ _ 2. _ _ 3. _ _ 4.
_ _ 5. _ _ 6. _ _ 7. _ _ 8. _ _ 9.

414, 457, or 50l(a) of the Internal Revenue Code of 1986. See 11 U.S.C. § 522(d).
SUMMARY OF MAJOR FEDERAL EXEMPTIONS
Federal Old-Age, Survivors, and Disability Insurance benefits. 42 U.S.C. § 407.
Veterans' benefits. 38 U.S.C. § 5301.
Annuities of retired servicemen. 10 U.S.C. § 1440.
Federal civil service retirement benefits. 5 U.S.C. § 8346, and 22 U.S.C. § 4060(c).
Annuities to survivors of federal judicial officials. 28 U.S.C. § 376(n).
Longshore and harbor workers compensation. 33 U.S.C. § 916.
Black lung benefits. 30 U.S.C. §§ 931(b)(2)(F), 932(a)).
Master and seaman's wages. 46 U.S.C. §§ 11108-11109.
Railroad employees retirement and unemployment benefits. 45 U.S.C. §§ 231m(a), 352(e).

SUMMARY OF MAJOR TEXAS STATE EXEMPTIONS
§ 41.001, Texas Property Code. Interests in Land Exempt from Seizure.
_ _(a) A homestead and one or more lots used for a place of burial are exempt from seizure for the claims of creditors except for encumbrances properly fixed on homestead property.
§ 42.001, Texas Property Code. Personal Property Exemption.
(a) Personal property, as described in Section 42.002, is exempt from garnishment or execution if:

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 4

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 51 of 73 PageID 53

_ _ (1)

the property is provided for a family and has an aggregate fair market value of not more than $60,000, exclusive of any encumbrances; or

_ _ (2)

the property is owned by a single adult and has an aggregate fair market value of not more than $30,000, exclusive of any encumbrances.

(b) The following personal property is exempt and is not included in the aggregate limitations prescribed by Subsection (a):

_ _ (1) current wages for personal services, except for the enforcement of court-ordered child support payments

_ _ (2) professionally prescribed health aids of a debtor or dependent

_ _ (3)

alimony, support, or separate maintenance received or to be received by the debtor for the support of the debtor or dependent

_ _ (4) a religious bible or book containing sacred writings of a religion

(c) Except as provided by Subsection (b)(4), this section does not prevent seizure by a secured creditor.

_ _ (d) Unpaid commissions for personal services not to exceed 25% of the aggregate limitations prescribed by Subsection (a) are exempt from seizure and are included in the aggregate.

_ _ (e) A religious bible or book described in Subsection (b)(4).

§ 42.002, Texas Property Code. Personal Property.

(a) The following personal property is exempt under Section 42.001(a), Texas Property Code:

_ _ (1) home furnishings

_ _ (2) provisions for consumption

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 5

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 52 of 73 PageID 54

_ _ (3) farming or ranching vehicles and implements

_ _ (4) tools, equipment, books, and apparatus, including boats and motor vehicles used in a trade or profession

_ _ (5) apparel

_ _ (6) jewelry not to exceed 25% of the aggregate limitations prescribed by Section 42.001(a)

_ _ (7) two firearms

_ _ (8) athletic and sporting equipment, including bicycles

_ _ (9)

a two-, three-, or four-wheeled motor vehicle for each family member or single adult who holds a driver's license or who does not hold a driver's license but who relies on another person to operate the vehicle for the benefit of the nonlicensed person

(10) the following animals and forage on hand for their consumption:

_ _ (A) two horses, mules, or donkeys and a saddle, blanket, and bridle for each

_ _ (B) 12 head of cattle

_ _ (C) 60 head of other livestock

_ _ (D) 120 fowl

_ _ (11) household pets

§ 42.0021, Texas Property Code. Additional Exemption for Certain Savings Plans.

_ _ (a) In addition to the exemption prescribed by Section 42.001, a person's right to the assets held in or to receive payments under any stock bonus, pension, profit-sharing, retirement plan for self-employed individuals, and annuity purchased with assets distributed from that plan, and retirement

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 6

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 53 of 73 PageID 55

annuity or account, described by Section 403(b) or 408A of the Internal Revenue Code of 1986, and individual retirement account, individual retirement annuity, simplified employee pension plan, and health savings account described by Section 223 of the Internal Revenue Code of 1986, is exempt from seizure for the satisfaction of debts unless the plan, contract, or account does not qualifY under the Internal Revenue Code of 1986. A person's right to the assets held in or to receive payments under a government or church plan or contract is also exempt unless the plan or contract does not qualifY under the federal Employee Retirement Income Security Act of 1974.
_ _ (b) Contributions to an individual retirement account, other than contributions to a Roth IRA described in Section 408A, Internal Revenue Code of 1986, or annuity that exceed the amounts deductible under the Internal Revenue Code of 1986 and any accrued earnings on such contributions are not exempt under this section unless otherwise exempt by law. Amounts qualifYing as nontaxable rollover contributions under Section 402(a)(5), 403(a)(4), 403(b)(8), or 408(d)(3) of the Internal Revenue Code of 1986 before January 1, 1993, are treated as exempt amounts under Subsection (a). Amounts treated as qualified rollover contributions under Section 408A, Internal Revenue Code of 1986, are treated as exempt amounts under Subsection (a). Amounts qualifYing as nontaxable rollover contributions under Section 402(c), 402(e)(6), 402(f), 403(a)(4), 403(a)(5), 403(b)(8), 403(b)(l0), 408(d)(3), or 408A of the Internal Revenue Code of 1986 on or after January 1, 1993, are treated as exempt amounts under Subsection (a). Amounts qualifYing as nontaxable rollover contributions under Section 223(t)(5) of the Internal Revenue Code of 1986 on or after January 1, 2004, are treated as exempt amounts under Subsection (a).
_ _ (c) Amounts distributed from a plan or contract entitled to the exemption under Subsection (a) are not subject to seizure for 60 days after the date of distribution if the amounts qualifY as a nontaxable rollover contribution under Subsection (b).
_ _ (d) A participant or beneficiary of a stock bonus, pension, profit-sharing, retirement plan, or government plan is not prohibited from granting a security interest in the participant's or beneficiary's right to the assets held in or to receive payments under the plan to secure a loan to the participant or beneficiary from the plan, and the right to the assets held in or to receive

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 7

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 54 of 73 PageID 56

payments from the plan is subject to seizure for the satisfaction of the security interest or lien granted by the participant or beneficiary to secure the loan.

§ 42.0022, Texas Property Code. Exemption for College Savings Plans.

(a) In addition to the exemption in Section 42.001, a person's right to the assets held in or to receive payments or benefits under any of the following is exempt:

_ _( 1) prepaid tuition contract

_ _(2) savings trust account

_ _(3)

any qualified tuition program of any state that meets the requirements under Section 529, Internal Revenue Code of 1986

List below the description of each exemption claimed, the value, the basis for such

valuation, and nature of your ownership interest. Attach additional papenvork, if needed.

1. -----------------------------------------------------------------

2. _____________________________________________________________

3. _______________________________________________________________

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 8

• Case 3:12-cv-04737-P Document 2 Filed 11/20/12

•Page 55 of 73 PageID 57

AFFIDAVIT The exemptions claimed above, including their descriptions, the value, the basis for such valuation, and the nature of my ownership interest in them, are made under oath and penalty of perjury.

(Signature)

(Print Name)

STATE OF-------------------COUNTY OF -----------------
Subscribed and sworn to before me this _____________ day of _ _ _ _ _ _ 2012.

Notary Public Signature

My Commission expires: _ _ _ __ (Seal)

0 I am requesting a hearing for the exemptions checked above. 0 I am not requesting a hearing for the exemptions checked above. 0 I am requesting a transfer to the federal district where I reside in the
_ _ _ _ _ _ _ _ _ _ _ (district) of _ _ _ _ _ _ _ _ _ _ _ _(state).

David Scieszinski, attorney for Defendants Kenneth J. Henry, individually, and d/b/a Henry's Turkey Service, and Hill Country Farms, Inc. d/b/a Henry's Turkey Service
Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 9

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•Page 56 of 73 PageID 58

Iowa BarNo.
Address:--------------------------------
Email:---------------------------------Daytime telephone:____________ Date:-:----------------------

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 10

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA,

§

§

Plaintiff,

§

§

v.

§

§

KENNETH J. HENRY, individually, §

and d/b/a HENRY'S TURKEY

§

SERVICE, and HILL COUNTRY

§

FARMS, INC. d/b/a HENRY'S

§

TURKEY SERVICE,

§

§

Defendants,

§

§

and

§

§

SOUTHWESTERN FARMS &

§

CATTLE CO., INC.,

§

§

Garnishee.

§

8·12CV-4737P
No. -------------------

WRIT OF GARNISHMENT

To: Southwestern Farms & Cattle, Co., Inc. and its affiliates, successors, or assigns Glenda Luscher, Registered Agent 2901 FM 1476 Proctor, TX 76468

An Application for Writs of Garnishment seeking property belonging to or due

Defendants Kenneth J. Henry, individually, and d/b/a Henry's Turkey Service (Henry),

and Hill Country Farms, Inc. d/b/a Henry's Turkey Service (Hill Country) (collectively

Defendants), who are judgment debtors of the United States of America (United States),

Writ of Garnishment- Page 1

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•Page 58 of 73 PageID 60

and/or Henry's spouse, Gay Henry, individually, and d/b/a Henry's Turkey Service, was

filed with this Court.

Computation of the debt as ofNovember 15, 2012 is:

$1,761,554.34

Judgment amount

$ 3,737.85

Interest (.16%)

($ 4,335.20) Credits applied to judgment

$1,760,956.99

Debt balance

Pending further order of this Court, you shall withhold and retain all property in

which Defendants and/or Henry's spouse have a substantial nonexempt interest and for

which you are or may become indebted to Defendants and/or Henry's spouse. See 28

U.S.C. § 3205(c)(2)(F). Do not deliver the property to the United States at this time.

Instead, withhold and retain the property until the Court orders its distribution. !d.

You are required by law to file an answer within ten days of your receipt of this

writ advising the Court whether you hold as of the date you were served with this writ or

will hold substantial nonexempt property for Defendants and/or Henry's spouse, and mail

or deliver the original answer to the United States District Clerk, 1100 Commerce Street,

Room 1452, Dallas, TX 75242; and mail copies to Kenneth J. Henry, individually, and

d/b/a Henry's Turkey Service, and Hill Country Farms, Inc. d/b/a Henry's Turkey

Service, through their attorney David Scieszinski, 108 E. 4th Street, Wilton, lA 52778;

Gay Henry, individually, and d/b/a Henry's Turkey Service, 1451 Hwy. 1476, Proctor, TX

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•Page 59 of 73 PageID 61

76468; and Megan J. Fahey, Assistant United States Attorney, Burnett Plaza, Suite 1700, 801 Cherry Street, Unit 4, Fort Worth, TX 76102-6882. See 28 U.S.C. § 3205(c). Additional information is included in the attached Plaintiffs Instructions to Garnishee.
If you fail to answer this writ or withhold property in accordance with this writ, the United States may petition this Court for an order requiring you to appear before this Court to answer this writ and withhold property before the appearance date. See 28 U.S.C. § 3205(c)(6). Ifyou fail to answer, or appear and fail to show good cause why you failed to comply with this writ, the Court shall enter a judgment against you for the value of Defendants' and/or Henry's spouse's substantial nonexempt property. !d. The Court may award a reasonable attorney's fee to the United States and against you if this writ is not answered by the time specified by law and a petition is filed requiring you to appear. !d.

Signed this _ _ _ _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ 2012.

UNITED STATES DISTRICT CLERK NORTHERN DISTRICT OF TEXAS

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s'X:,~r~- ~\)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA,

§

§

Plaintiff,

§

§

v.

§

§

KENNETH J. HENRY, individually, §

and d/b/a HENRY'S TURKEY

§

SERVICE, and HILL COUNTRY

§

FARMS, INC. d/b/a HENRY'S

§

TURKEY SERVICE,

§

§

Defendants,

§

§

and

§

§

SOUTHWESTERN FARMS &

§

CATTLE CO., INC.,

§

§

Garnishee.

§

8·12CV-4737P
No. _______________________

CLERK'S NOTICE OF POST-JUDGMENT GARNISHMENT TO DEFENDANTS

You are notified, pursuant to 28 U.S.C. § 3202, that your property is being sought

by the United States of America (United States), which holds a judgment from the United

States District Court for the Southern District of Iowa against you dated July 20, 2011.

On October 11, 2011, this judgment was registered in the United States District Court for

the Northern District of Texas under civil case number 4:11-MC-015.

Computation ofthe debt as ofNovember 15, 2012 is:

$1,761,554.34

Judgment amount

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$ 3,737.85

Interest (.16%)

($ 4.335.20) Credits applied to judgment

$1,760,956.99

Debt balance

Exemptions may protect the property from being taken by the United States if you

can show exemptions apply. See 28 U.S.C. § 3014(a). The attached Claim for

Exemptions, Request for Hearing, and/or Request for Transfer contains a summary of the

major exemptions that apply.

You have a right to ask the Court to return your property if you think that you do

not owe the debt to the government, or if you think the property the government seeks

qualifies under an exemption(s). For each item that you claim is exempt from

garnishment, you shall file a statement under oath naming and describing the

exemption(s), including, for each item of property for which you claim an exemption, the

value, the basis for such valuation, and the nature of your interest.

If you want a hearing, you must notify the Court within 20 days after you receive

this notice. Your request must be in writing, and you may use the attached form to

request the hearing. You must mail or deliver the original to the United States District

Clerk, 1100 Commerce Street, Room 1452, Dallas, TX 75242. You must also mail a

copy to Megan J. Fahey, Assistant United States Attorney, Burnett Plaza, Suite 1700, 801

Cherry Street, Unit 4, Fort Worth, TX 76102-6882, so the government will know you

want a hearing.

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If you are entitled to a hearing, the hearing will take place within five days after the United States District Clerk receives your request, if you ask for it to take place that quickly, or as soon after that as possible. The Court will issue an order advising you of the time, place, and date of any hearing scheduled.
At the hearing, you may explain to the judge why you believe the property the government seeks is exempt or why you think you do not owe the debt to the government. The Court shall determine the extent, if any, to which your exemption claims apply. See 28 U.S.C. § 3014(b)(2). Unless it is reasonably evident that the exemptions apply, you shall bear the burden of persuasion. !d. If you do not request a hearing, your property may be delivered to the United States and applied to the debt you owe.
If you think you live outside the federal judicial district where this Court is located, you may request, not later than 20 days after you receive this notice, that this proceeding be transferred by this Court to the federal judicial district where you reside. You must make your request in writing, and mail or deliver the original to the United States District Clerk, 1100 Commerce Street, Room 1452, Dallas, TX 75242. You must also mail a copy of the request to Megan J. Fahey, Assistant United States Attorney, Burnett Plaza, Suite 1700, 801 Cherry Street, Unit 4, Fort Worth, TX 76102-6882, so the government will know you want the proceeding to be transferred. You may use the attached form to request a transfer.
Be sure to keep a copy of this notice for your records. If you have any questions

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about your rights or this procedure, you should contact a lawyer, an office of public legal assistance, or the United States District Clerk. The United States District Clerk is not permitted to give legal advice, but may refer you to other sources of information.

UNITED STATES DISTRICT CLERK NORTHERN DISTRICT OF TEXAS
Dme _______________________________

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA,
Plaintiff,
v.
KENNETH J. HENRY, individually, and d/b/a HENRY'S TURKEY SERVICE, and HILL COUNTRY FARMS, INC. d/b/a HENRY'S TURKEY SERVICE,
Defendants,
and
SOUTHWESTERN FARMS & CATTLE CO., INC.,
Garnishee.

§ § §
~ aN) 2 cv- 4 7 s' '
§ § § § § § § § § § § § § § §

CLAIM FOR EXEMPTIONS, REQUEST FOR HEARING, AND/OR REQUEST FOR TRANSFER

To complete this form, check the adjacent space(s) to an exemption(s) you are

claiming, check the box below to request a hearing, and/or check the box below to request

a transfer to another federal judicial district. You must mail or deliver the original of this

form to the United States District Clerk and mail a copy to the United States of America,

as explained in the attached Clerk's Notice of Post-Judgment Garnishment to Defendants.

See 28 U.S.C. §§ 3014(b)(l), and 3202(b).

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Major exemptions that you may claim as property exempt from this garnishment

are summarized below. You may claim property exempt under 11 U.S.C. § 522(d) of the

United States Bankruptcy Code, or property exempt under federal law - other than

exemptions under the bankruptcy code, or property exempt under Texas state law. See 28

U.S.C. § 3014(a). You cannot claim exemptions under the bankruptcy code, federal law,

and state law. To claim state exemptions, you must have been a resident of Texas at least

180 days immediately preceding the date the attached application was filed. !d.

SUMMARY OF UNITED STATES BANKRUPTCY CODE EXEMPTIONS

_ _ (1) The debtor's aggregate interest not to exceed $15,000 in real or personal property that the debtor or dependent uses as a residence or in a burial plot.

_ _ (2) The debtor's interest not to exceed $2,400 in one motor vehicle.

_ _ (3)

The debtor's interest not to exceed $400 in any particular item or $8,000 in aggregate value in household furnishings, wearing apparel, animals, or crops held primarily for personal use of the debtor or dependent.

_ _ (4) The debtor's aggregate interest not to exceed $1,000 in jewelry held primarily for personal use of the debtor or dependent.

_ _ (5)

The debtor's aggregate interest in any property not to exceed $800 plus up to $7,500 of any unused amount of the exemption provided in (1) of this subsection.

_ _ (6) The debtor's aggregate interest not to exceed $1,500 in professional books or tools of the trade of the debtor or dependent.

_ _ (7) Any unmatured life insurance contract owned by the debtor, other than a credit life insurance contract.

_ _ (8) The debtor's aggregate interest not to exceed $8,000 less any amount of property transferred under section 542(d) of this title, in any accrued

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dividend or interest under, or loan value of, any unmatured life insurance contract owned by the debtor under which the insured is the debtor or an individual of whom the debtor is a dependent.
_ _ (9) Professionally prescribed health aids for the debtor or dependent.
(10) The debtor's right to receive:
_ _ (A) social security, unemployment, or local public assistance benefits
- - (B) veterans' benefits
_ _ (C) disability, illness, or unemployment benefits
_ _ (D) alimony, support, or separate maintenance for the reasonable support of the debtor and dependents
_ _ (E) payment under a stock bonus, pension, profitsharing, or annuity plan on account of illness, disability, death, age, or length of service, to reasonably support the debtor and dependants, with exceptions outlined in 11 U.S.C. § 522(d)(10)(E).
(11) The debtor's right to receive, or property traceable to:
_ _ (A) an award under a crime victim's reparation law
_ _ (B) payment for the wrongful death of an individual of whom debtor was a dependent to reasonably support the debtor and dependants
_ _ (C) payment under a life insurance contract that insured the life of an individual of whom the debtor was a dependent on the date of death to reasonably support the debtor and dependants
_ _ (D) payment not to exceed $15,000 for personal bodily injury of the debtor or an individual of whom the debtor is a dependent, with exceptions outlined in 11 U.S.C. § 522(d)(11)(D)
_ _ (E) payment for loss of future earnings of the debtor or an individual of whom the debtor is or was a dependent to reasonably support the debtor and dependents.

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_ _ (12) Retirement funds in an account exempt under sections 401, 403, 408, 408A, 414, 457, or 501(a) of the Internal Revenue Code of 1986. See 11 U.S.C. § 522(d).

SUMMARY OF MAJOR FEDERAL EXEMPTIONS

_ _ 1.

Federal Old-Age, Survivors, and Disability Insurance benefits. 42 U.S.C. § 407.

_ _ 2. Veterans' benefits. 38 U.S.C. § 5301.

_ _ 3. Annuities of retired servicemen. 10 U.S.C. § 1440.

_ _ 4.

Federal civil service retirement benefits. 5 U.S.C. § 8346, and 22 U.S.C. § 4060(c).

_ _ 5. Annuities to survivors of federal judicial officials. 28 U.S.C. § 376(n).

_ _ 6. Longshore and harbor workers compensation. 33 U.S.C. § 916.

_ _ 7. Black lung benefits. 30 U.S.C. §§ 931(b)(2)(F), 932(a)).

_ _ 8. Master and seaman's wages. 46 U.S.C. §§ 11108-11109.

_ _ 9.

Railroad employees retirement and unemployment benefits. 45 U.S.C. §§ 231m(a), 352(e).

SUMMARY OF MAJOR TEXAS STATE EXEMPTIONS
§ 41.001, Texas Property Code. Interests in Land Exempt from Seizure.
_ _(a) A homestead and one or more lots used for a place of burial are exempt from seizure for the claims of creditors except for encumbrances properly fixed on homestead property.
§ 42.001, Texas Property Code. Personal Property Exemption.
(a) Personal property, as described in Section 42.002, is exempt from garnishment or execution if:
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_ _ (1)

the property is provided for a family and has an aggregate fair market value of not more than $60,000, exclusive of any encumbrances; or

_ _ (2)

the property is owned by a single adult and has an aggregate fair market value of not more than $30,000, exclusive of any encumbrances.

(b) The following personal property is exempt and is not included in the aggregate limitations prescribed by Subsection (a):

_ _ (1) current wages for personal services, except for the enforcement of court-ordered child support payments

_ _ (2) professionally prescribed health aids of a debtor or dependent

_ _ (3)

alimony, support, or separate maintenance received or to be received by the debtor for the support of the debtor or dependent

_ _ (4) a religious bible or book containing sacred writings of a religion

(c) Except as provided by Subsection (b)(4), this section does not prevent seizure by a secured creditor.

_ _ (d) Unpaid commissions for personal services not to exceed 25% of the aggregate limitations prescribed by Subsection (a) are exempt from seizure and are included in the aggregate.

_ _ (e) A religious bible or book described in Subsection (b)(4).

§ 42.002, Texas Property Code. Personal Property.

(a) The following personal property is exempt under Section 42.001(a), Texas Property Code:

_ _ ( 1) home furnishings

_ _ (2) provisions for consumption

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_ _ (3) farming or ranching vehicles and implements

_ _ (4) tools, equipment, books, and apparatus, including boats and motor vehicles used in a trade or profession

_ _ (5) apparel

_ _ (6) jewelry not to exceed 25% of the aggregate limitations prescribed by Section 42.001(a)

_ _ (7) two firearms

_ _ (8) athletic and sporting equipment, including bicycles

_ _ (9)

a two-, three-, or four-wheeled motor vehicle for each family member or single adult who holds a driver's license or who does not hold a driver's license but who relies on another person to operate the vehicle for the benefit of the nonlicensed person

(10) the following animals and forage on hand for their consumption:

_ _ (A) two horses, mules, or donkeys and a saddle, blanket, and bridle for each

_ _ (B) 12 head of cattle

_ _ (C) 60 head of other livestock

_ _ (D) 120 fowl

_ _ (11) household pets

§ 42.0021, Texas Property Code. Additional Exemption for Certain Savings Plans.

_ _ (a) In addition to the exemption prescribed by Section 42.001, a person's right to the assets held in or to receive payments under any stock bonus, pension, profit-sharing, retirement plan for self-employed individuals, and annuity purchased with assets distributed from that plan, and retirement

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annuity or account, described by Section 403(b) or 408A of the Internal Revenue Code of 1986, and individual retirement account, individual retirement annuity, simplified employee pension plan, and health savings account described by Section 223 of the Internal Revenue Code of 1986, is exempt from seizure for the satisfaction of debts unless the plan, contract, or account does not qualify under the Internal Revenue Code of 1986. A person's right to the assets held in or to receive payments under a government or church plan or contract is also exempt unless the plan or contract does not qualify under the federal Employee Retirement Income Security Act of 1974.
_ _ (b) Contributions to an individual retirement account, other than contributions to a Roth IRA described in Section 408A, Internal Revenue Code of 1986, or annuity that exceed the amounts deductible under the Internal Revenue Code of 1986 and any accrued earnings on such contributions are not exempt under this section unless otherwise exempt by law. Amounts qualifying as nontaxable rollover contributions under Section 402(a)(5), 403(a)(4), 403(b)(8), or 408(d)(3) of the Internal Revenue Code of 1986 before January 1, 1993, are treated as exempt amounts under Subsection (a). Amounts treated as qualified rollover contributions under Section 408A, Internal Revenue Code of 1986, are treated as exempt amounts under Subsection (a). Amounts qualifying as nontaxable rollover contributions under Section 402(c), 402(e)(6), 402(f), 403(a)(4), 403(a)(5), 403(b)(8), 403(b)(l0), 408(d)(3), or 408A of the Internal Revenue Code of 1986 on or after January 1, 1993, are treated as exempt amounts under Subsection (a). Amounts qualifying as nontaxable rollover contributions under Section 223(f)(5) of the Internal Revenue Code of 1986 on or after January 1, 2004, are treated as exempt amounts under Subsection (a).
_ _ (c) Amounts distributed from a plan or contract entitled to the exemption under Subsection (a) are not subject to seizure for 60 days after the date of distribution if the amounts qualify as a nontaxable rollover contribution under Subsection (b).
_ _ (d) A participant or beneficiary of a stock bonus, pension, profit-sharing, retirement plan, or government plan is not prohibited from granting a security interest in the participant's or beneficiary's right to the assets held in or to receive payments under the plan to secure a loan to the participant or beneficiary from the plan, and the right to the assets held in or to receive

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payments from the plan is subject to seizure for the satisfaction of the security interest or lien granted by the participant or beneficiary to secure the loan.

§ 42.0022, Texas Property Code. Exemption for College Savings Plans.

(a) In addition to the exemption in Section 42.001, a person's right to the assets held in or to receive payments or benefits under any of the following is exempt:

_ _(1) prepaid tuition contract

_ _(2) savings trust account

_ _(3)

any qualified tuition program of any state that meets the requirements under Section 529, Internal Revenue Code of 1986

List below the description of each exemption claimed, the value, the basis for such

valuation, and nature ofyour ownership interest. Attach additional paperwork, if needed. !. _____________________________________________________________

2. _______________________________________________________________

3. ---------------------------------------------------------------

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AFFIDAVIT The exemptions claimed above, including their descriptions, the value, the basis for such valuation, and the nature of my ownership interest in them, are made under oath and penalty of perjury.

(Signature)

(Print Narne)

STATE OF_ _ _ _ _ _ _ __ COUNTY OF _ _ _ _ _ __

Subscribed and sworn to before me this _ _ _ _ _ _ _ day of _ _ _ _ _ _ 2012.

Notary Public Signature

My Commission expires: _ _ _ __ (Seal)

0 I am requesting a hearing for the exemptions checked above. 0 I am not requesting a hearing for the exemptions checked above. 0 I am requesting a transfer to the federal district where I reside in the
_ _ _ _ _ _ _ _ _ _ (district) of _ _ _ _ _ _ _ _ _ _ _(state).

David Scieszinski, attorney for Defendants Kenneth J. Henry, individually, and d/b/a Henry's Turkey Service, and Hill Country Farms, Inc. d/b/a Henry's Turkey Service
Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 9

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Iowa BarNo.
Address:--------------------------------
Email:----------------------------------
Daytime telephone:___________________ Date:- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Claim for Exemptions, Request for Hearing, and/or Request for Transfer- Page 10

 
 Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 1 of 23 PageID 322

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA v.

NO. 3:12-CV-4737-P

KENNETH J. HENRY AND HILL COUNTRY FARMS, INC.

UNITED STATES OF AMERICA’S EMERGENCY MOTION FOR TURNOVER ORDER

Respectfully submitted,
JOHN R. PARKER UNITED STATES ATTORNEY
s/ Megan J. Fahey Megan J. Fahey Assistant United States Attorney Texas Bar No. 24043655 Burnett Plaza Suite 1700 801 Cherry Street Unit 4 Fort Worth, TX 76102-6882 Telephone: 817-252-5200 Facsimile: 817-252-5455 megan.fahey@usdoj.gov

United States’ Emergency Mot. for Turnover Order - Page 1

Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 2 of 23 PageID 323
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...............................................................................................3
BACKGROUND .................................................................................................................. 6
I. HCF d/b/a Henry’s Turkey Services is a company, owned and operated by Henry and Thurman Johnson, which, for years, committed horrific labor violations against numerous disabled men at its turkey processing plant in Iowa ....................................................6
II. On July 20, 2011, the United States obtained a $1.7 million judgment against HCF and Henry for failing to pay proper overtime and minimum wages to the disabled workers.................................8
III. Henry and HCF have made every effort to thwart the United States’ attempts to collect this judgment .......................................................9
IV. To resolve a land dispute, HCF sued J&J Egg Farm and Frieda Johnson in the Mills County Lawsuit; however, once the United States served the initial garnishment action, Henry and Moreland colluded to divert HCF’s interest in the lawsuit to their children ............................................................................................11
ARGUMENT .....................................................................................................................13
I. Pursuant to 28 U.S.C. §§ 1651, 3013, 3202(a), and 3205(c)(6) and (7), the Court has the legal authority to order the turnover of the settlement proceeds to the United States ...........................................14
II. The Estate of Thurman Johnson is HCF’s nominee in the Mills County Lawsuit, so the settlement proceeds should be paid to the United States for application to HCF’s debt ..............................15
III. Even if it does not find that the Estate of Thurman Johnson is HCF’s nominee, the Court may still order the funds turned over to the United States because the entire scheme is nothing more than a sham-to-perpetrate-a-fraud on the United States and the disabled workers..............................................................................20
CONCLUSION .................................................................................................................21
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TABLE OF AUTHORITIES FEDERAL CASES
Cody v. United States, 348 F.Supp.2d 682 (E.D. Va. 2004)..............................................17 Dexia Credit Local v. Rogan, No. 02C8288, 2008 WL 4543013 (N.D. Ill. Oct. 9, 2008) (unpublished) .........................................................................16, 17 Faith Missionary Baptist Church v. IRS (In re Faith Missionary Baptist Church), 174 B.R. 454 (Bankr. E.D. Tex. 1994) ..............................................................................16 Hilda L. Solis, Sec’y of Labor, United States Dep’t of Labor v. Hill Country Farms, Inc. d/b/a Henry’s Turkey Servs. & Kenneth Henry, individually, Case No. 3:09-CV-0162 (S.D. Iowa July 20, 2011) ............................................................8 Holman v. United States, 505 F.3d 1060 (10th Cir. 2007) ................................................17 Macklin v. United States, 300 F.3d 814 (7th Cir. 2002) ....................................................16 Oxford Capital Corp. v. United States, 211 F.3d 280 (5th Cir. 2000)...............................16 Richards v. United States (In re Richards), 231 B.R. 571 (E.D. Pa. 1999).................16, 17 Scoville v. United States, 250 F.3d 1198 (8th Cir. 2001).............................................16, 20 Shades Ridge Holding Co., Inc. v. United States, 888 F.2d 725 (11th Cir. 1989).............17 Spotts v. United States, 429 F.3d 248 (6th Cir. 2005) .......................................................17 United States v. Friedman, 143 F.3d 18 (1st Cir. 1998) ....................................................15 United States v. Harrison, 366 B.R. 656 (S.D. Tex. 2007) ...............................................17 United States v. Kitsos, 770 F.Supp. 1230 (N.D. Ill. 1991) ...............................................16 United States v. Kudasik, 21 F.Supp.2d 501 (W.D. Pa. 1998) ..........................................17 United States v. Reed, 168 F.Supp.2d 1266 (D. Utah 2001)..............................................17 United States v. Yielding, 657 F.3d 722 (8th Cir. 2011) ...................................................15
United States’ Emergency Mot. for Turnover Order - Page 3

Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 4 of 23 PageID 325 W. Horizontal Drilling, Inc. v. Jonnet Energy Corp., 11 F.3d 65 (5th Cir. 1994) ............16
STATE CASES Castleberry v. Branscum, 721 S.W.2d 270 (Tex. 1986)..............................................16, 20
FEDERAL STATUTES 28 U.S.C. § 1651 ..........................................................................................6, 13, 14, 15, 21 28 U.S.C. §§ 3001-3308.....................................................................................................14 28 U.S.C. § 3013 ................................................................................................6, 13, 14, 21 28 U.S.C. § 3202 ..........................................................................................6, 13, 14, 15, 21 28 U.S.C. § 3205 ................................................................................................6, 13, 14, 21 29 U.S.C. § 216 ....................................................................................................................8
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA v.

NO. 3:12-CV-4737-P

KENNETH J. HENRY AND HILL COUNTRY FARMS, INC.

UNITED STATES OF AMERICA’S EMERGENCY MOTION FOR TURNOVER ORDER
Defendant Hill Country Farms, Inc. (HCF) and its owner, Kenneth Henry, are currently indebted to the United States in the amount of $1,493,604.86 for grotesque and prolonged labor violations committed against disabled workers at a turkey processing plant operated by HCF. In this case, for the benefit of those disabled workers, the United States garnished HCF’s interest in a pending lawsuit. Henry and others, however, created an elaborate subterfuge to circumvent the United States’ collection efforts and the previous orders of this Court, and as a result, Frieda Johnson is set to pay the Estate of Thurman Johnson $600,000, which rightfully belongs to HCF, on or before September 15, 2015.
Specifically, through a Confidential Settlement and Disbursement Agreement (Confidential Agreement) signed on July 21, 2013 (shortly after Henry’s spouse and daughter were served with the first writs of garnishment in this case), Henry and HCF attempted to divert their interest in the pending lawsuit, HCF v. J&J and Frieda Johnson, Cause No. 12-06-6372, 35th Judicial District, Mills County, Texas (Mills County Lawsuit), to Henry’s daughter, Robin Aaberg, and the children of Henry’s now-deceased business partner, Thurman Johnson. (Pl.’s
United States’ Emergency Mot. for Turnover Order - Page 5

Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 6 of 23 PageID 327 App. at 1-5.) A Mediated Settlement Agreement (Settlement Agreement) settling that lawsuit was signed on May 12, 2015, whereby Frieda Johnson is to pay the Estate of Thurman Johnson $600,000 no later than September 15, 2015. (Id. at 7-10.)
The Estate of Thurman Johnson serves as nothing more than HCF’s nominee in the Mills County Lawsuit, and the actions of Henry; Thurman Johnson’s sole beneficiary, Jane Anne Moreland f/k/a Jane Anne Steen Johnson (Moreland); and others acting in concert with them amount to nothing more than a sham-to-perpetrate-a-fraud against the United States and the disabled men they abused for so long. Because the settlement funds rightfully belong to HCF, the United States requests that Frieda Johnson be ordered to turnover the $600,000 to the United States pursuant to 28 U.S.C. §§ 1651, 3013, 3202(a), and 3205(c)(6) and (7). The United States is requesting emergency relief because the funds at issue will be released by September 15 without judicial intervention.
BACKGROUND I. HCF d/b/a Henry’s Turkey Services is a company, owned and operated by Henry
and Thurman Johnson, which, for years, committed horrific labor violations against numerous disabled men at its turkey processing plant in Iowa. HCF d/b/a Henry’s Turkey Services is a for-profit corporation located in Goldthwaite, Texas. (Pl.’s App. at 20.) In the mid-1960s, HCF, at that time owned and operated by Thurman Johnson, began working with disabled men living in Texas, and Kenneth Henry owned Henry’s Turkey Services, Inc. (Id.) In 1972, Henry and Johnson merged their companies to form HCF d/b/a Henry’s Turkey Services. (Id.) Henry has been a 50% owner and vice president or president of the merged company from the date of incorporation until the present. (Id.) HCF
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Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 7 of 23 PageID 328 was caretaker for their disabled workers and housed them in a converted school house in Atlissa, Iowa, known as the “bunkhouse.” (Id. at 20-22.) Henry was actively involved in the business in Iowa, including handling the financial operations, hiring workers, and scheduling work. (Id.) After an extended illness, Thurman Johnson passed away in 2008, and his sole beneficiary is his widow, Jane Anne Moreland. (Id. at 2, 22, 45.) Moreland was HCF’s co-owner and corporate treasurer from at least November 16, 2006, through February 7, 2009. (Id. at 22-23.) She performed the company’s duties relating to the disabled men’s social security benefits. (Id.) As their caretaker, HCF received the disabled men’s social security payments, and would then reimburse itself from those payments for the men’s room and board. (Id.)
HCF received over $500,000 annually in 2006, 2007, and 2008 from West Liberty Foods for work performed by the disabled workers. (Id. at 23.) During this period, the men worked on the processing line, and HCF transported them from the bunkhouse to the processing plant at 4:45 a.m. each day. (Id. at 24.) For their efforts, HCF would calculate the workers’ pay based on HCF’s claimed costs of “in kind Room and Board” and “in kind Care.” (Id. at 24-25.) Total wages reported for each disabled worker included the in-kind room-and-board and in-kind care as well as $65.00 per month, which is the maximum cash wage a worker could receive that would not reduce the amount of his social security benefits. (Id.) While the company’s charges for in-kind room-and-board and in-kind care increased annually, the workers’ cash wages never varied. (Id.)
As a related matter, the Iowa Department of Workforce Development Division of Labor investigated the living conditions at the bunkhouse and issued a Final Agency Decision on
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Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 8 of 23 PageID 329 March 8, 2011, against Henry and Moreland d/b/a Henry’s Turkey Services for violations of Iowa state law. (Id. at 39-58.) That decision made numerous findings of fact regarding the treatment of the disabled workers, noting that when state and federal law enforcement officials presented themselves at the bunkhouse on February 7, 2009, they found behind locked doors “37 plus years of secrets, neglect, and deplorable actions.” (Id. at 41.) Although the list of offenses is exceptionally long, the decision notes that investigating agents found in the bunkhouse, among other things, serious fire hazards, urine soaked mattresses, cockroaches, mouse droppings, various other unsanitary conditions, and two mentally-disabled diabetic men responsible for their own insulin injections. (Id. at 45-47.) II. On July 20, 2011, the United States obtained a $1.7 million judgment against HCF
and Henry for failing to pay proper overtime and minimum wages to the disabled workers. Through this case, the United States is enforcing an approximately $1.7 million judgment entered on July 20, 2011, for the benefit of the disabled workers. (Id. at 11.) During the investigation that led to the current case, the United States Department of Labor calculated the amount of overtime and minimum wages that HCF failed to pay the disabled workers. (Id. at 27, 38.) Over a three-year period, the amount owed the workers was $880,777.17. (Id.) Pursuant to 29 U.S.C. § 216(b), the defendants are also liable for an equal amount in liquidated damages. See 29 U.S.C. § 216(b). A judgment was, accordingly, rendered on July 20, 2011, in the United States District Court for the Southern District of Iowa against HCF and Henry in the amount of $1,761,554.34. See Hilda L. Solis, Sec’y of Labor, United States Dep’t of Labor v. Hill Country Farms, Inc. d/b/a Henry’s Turkey Services and Kenneth Henry, individually, Case No. 3:09-CV-
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Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 9 of 23 PageID 330 0162 (S.D. Iowa July 20, 2011) (Pl.’s App. at 11.). III. Henry and HCF have made every effort to thwart the United States’ attempts to
collect this judgment. Shortly after entry of judgment, the United States Attorney’s Office for the Northern District of Texas received the judgment to enforce the debt. (Pl.’s App. at 112-115.) Despite having significant resources, Henry and HCF have refused to pay the money they owe the workers. (Id.) Through the Treasury Offset Program, previous garnishment actions, and other involuntary enforcement mechanisms, however, the United States has collected $272,297.22, and Henry’s and HCF’s current debt balance is $1,493,604.86, as of August 21, 2015. (Id. at 12-16.) On November 9, 2011, the United States sent Henry and HCF letters, through their attorney, David Scieszinksi, demanding payment for the full amount of the outstanding judgment and requesting that they complete a financial statement. (Id. at 100-103.) Instead of responding, Henry transferred property in Proctor, Texas, valued at approximately $325,000.00, to his daughter, Robin Aaberg, on November 30, 2011. (Id. at 69-72, 113.) The United States sent more demand letters on December 13, 2011, and May 16, 2012, without receiving a response, and on September 4, 2012, the United States sent a subpoena for Henry to appear at a debtor exam scheduled for September 26, 2012. (Id. at 104-111.) Henry, and his spouse, Gay Henry, appeared at the debtor’s exam on September 26, 2012. (Id. at 112115.) At the debtor exam, Henry provided a financial statement showing he had a net worth of $2,994,100.00 in 2009; $3,005,000.000 in 2010; and $1,606,400.00 in 2011. (Id. at 76-93.) He refused, however, to voluntarily surrender assets or enter into any payment arrangement with the United States. (Id. at 112-115.)
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Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 10 of 23 PageID 331 Due to the lack of cooperation, the United States filed an Application for Writs of
Garnishment in this case on November 20, 2012, seeking to garnish Henry’s and/or HCF’s property interests held by First National Bank, Mills County State Bank, Rusty Roberson, and Southwestern Farms & Cattle Co., Inc. (Dkt. 2.) The Court ordered the issuance of the writs on April 16, 2013. (Dkt.7-10.) Robin Aaberg was served with the writs on July 13, 2013, and Gay Henry was served on July 18, 2013. (Dkt. 22-23.) On February 19, 2014, the Court entered the Final Order of Garnishment resolving all issues pending in that garnishment matter.
Upon discovering the existence of the Mills County Lawsuit, the United States filed a Supplemental Application for Writs of Garnishment on October 3, 2014, seeking to garnish HCF’s property held by Frieda Johnson, Johnson and Johnson Egg Farm, Inc. (J&J Egg Farm), and McKethan Espinoza, PLLC, which is the law firm of Stephen McKethan – HCF’s lawyer in the lawsuit. (Dkt. 31.) The Court ordered the issuance of the writs on March 11, 2015, which were subsequently served on all relevant parties. (Dkt. 32, 36-37.) On May 12, 2015 – the same day McKethan signed the Settlement Agreement discussed below, Bethany Espinoza filed an answer on behalf of McKethan Espinoza, PLLC, stating that it did not have any property belonging to HCF and did not anticipate owing HCF anything in the future. (Dkt. 34.) On May 27, 2015, Frieda Johnson, individually and on behalf of J&J Egg Farm, filed an answer stating that she did not have any property belonging to HCF and did not anticipate owing HCF anything in the future. (Dkt. 35.) A final order has not yet been entered with regard to this garnishment.
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Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 11 of 23 PageID 332
IV. To resolve a land dispute, HCF sued J&J Egg Farm and Frieda Johnson in the Mills County Lawsuit; however, once the United States served the initial garnishment action, Henry and Moreland colluded to divert HCF’s interest in the lawsuit to their children. On June 8, 2012, HCF, through its attorney Stephen McKethan, filed the Mills County
Lawsuit alleging that it owned a 50% interest in J&J Egg Farm, which owned approximately 551 acres in Mills County. (Pl.’s App. at 59-64.) The petition stated that Thurman Johnson and Henry Johnson formed J&J Egg Farm in 1969, and Thurman Johnson transferred his interest in J&J Egg Farm to HCF when HCF was formed. (Id. at 60-61.) The petition also stated that “[w]hile there was no documentation to evidence such transaction, all owners of J & J Egg Farm and Hill Country were aware of the transfer and operated under such circumstances.” (Id.) The petition further stated that Henry became aware in 2000 that Thurman Johnson’s transfer of his interest in J&J Egg Farm to HCF was not properly documented, so he began to resolve the issue. (Id.) This issue was resolved on or about February 22, 2005, when Thurman Johnson, “by and through his attorney-in fact, Jane Anne Steen Johnson [a/k/a Jane Anne Moreland], completed the original transfer of all of his shared and ownership interest in J & J Egg Farm to Hill Country through a Stock Assignment.” (Id.) A copy of the Stock Assignment was attached as Exhibit A to the petition. (Id. at 64.) The petition also stated that Thurman Johnson died in 2008, and Henry and Moreland each own 50% of HCF. (Id. at 61.)
On July 21, 2013 – shortly after Henry’s spouse and daughter were served with the United States’ writs of garnishment previously mentioned, Henry, Moreland, and Mina Martin, the Executrix of the Estate of Thurman Johnson as well as Thurman Johnson’s daughter, executed the Confidential Agreement. (Id. at 1-5.) The Confidential Agreement establishes that: (1) HCF
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Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 12 of 23 PageID 333 owned the interest in J&J Egg Farm that is the subject of the Mills County Lawsuit; (2) Henry and Thurman Johnson each formerly owned a 50% interest in HCF; (3) Thurman Johnson owned a 50% interest in J&J Egg Farm that he transferred to HCF; and (4) HCF owes Henry $150,412.50 and Moreland $94,522.00. (Id.) The Confidential Agreement further states that the Estate of Thurman Johnson will pursue the Mills County Lawsuit and any funds received from the litigation shall be disbursed as follows: (1) $150,412.50 to Robin Aaberg, Henry’s daughter; (2) $94,522.00 to Moreland; (3) 50% of the remaining funds to Robin Aaberg; and (4) the other 50% of the remaining funds to Thurman Johnson’s daughters, Mina Martin, Ruth Ann Bowland, and Della McCoy, in equal shares. (Id.)
On October 2, 2013, McKethan, after filing the Mills County Lawsuit on behalf of HCF, filed an Original Petition in Intervention on behalf of the Estate of Thurman Johnson and began to pursue the litigation on behalf of the estate. (Id. at 65-68.) Curiously, the only explanation for the intervention was paragraph 11 of the petition, which stated that, contrary to HCF’s previous representations, there was now a dispute about whether Thurman Johnson’s transfer of his interest in J&J Egg Farm to HCF was valid. (Id. at 66.)
On May 12, 2015, a Settlement Agreement was reached in the Mills County Lawsuit whereby Frieda Johnson agreed to pay $600,000 to the Estate of Thurman Johnson, no later than September 15, 2015. (Id. at 7-10.) Mina Martin signed the Settlement Agreement on behalf of the Estate of Thurman Johnson, and McKethan signed the Settlement Agreement, individually and “as agent and attorney-in-fact for Hill Country Farm, Inc.” (Id. at 8.) Paragraph 5 of Exhibit A states that “HCF, Inc., will nonsuit its claims in this litigation with prejudice, and
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Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 13 of 23 PageID 334 acknowledges that it will receive no funds or property as a result of this litigation or settlement.” (Id. at 9.)
Suspicious of the fact that the Settlement Agreement specifically released all of HCF’s claims in the Mills County Lawsuit without receiving payment, the United States sent a subpoena to McKethan on June 2, 2015. (Id. at 94-99.) In response to the subpoena, McKethan produced the Confidential Agreement. (Id. at 1-6.) The terms of the Confidential Agreement demonstrate that it is simply a blatant attempt to circumvent the United States’ collection efforts and further victimize the disabled workers. (Id.) The United States, therefore, requests that the Court order Frieda Johnson to turnover to the United States the $600,000 she is scheduled to pay the Estate of Thurman Johnson pursuant to the Settlement Agreement.
ARGUMENT Despite deliberate attempts to hide HCF’s interest in the Mills County Lawsuit, the Confidential Agreement and Stock Assignment clearly establish that HCF is the true owner of the $600,000. (Id. at 1-6, 64.) HCF is indebted to the United States in the current amount of $1,493,604.86, and writs of garnishment are pending against Frieda Johnson, J&J Egg Farm, and McKethan Espinoza, PLLC, all of whom have appeared in this case. (Id. at 12-17; Dkt. 31-35.) Pursuant to 28 U.S.C. §§ 1651, 3013, 3202(a), and 3205(c)(6) and (7), the United States, therefore, requests that the Court order Frieda Johnson and/or J&J Egg Farm to turnover to the United States the $600,000 set forth in the Settlement Agreement.
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Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 14 of 23 PageID 335 I. Pursuant to 28 U.S.C. §§ 1651, 3013, 3202(a), and 3205(c)(6) and (7), the Court has
the legal authority to order the turnover of the settlement proceeds to the United States. The United States initiated this garnishment action pursuant to 28 U.S.C. § 3205 of the Federal Debt Collection Procedures Act (FDCPA). See 28 U.S.C. § 3205; Dkt. 2, 31. The FDCPA was enacted in 1990 as the mechanism through which the government collects debts owed it. See 28 U.S.C. § 3001-3308. Pursuant to § 3205(a) of the FDCPA, the Court may issue a writ of garnishment against property “in which the debtor has a substantial nonexempt interest and which is in the possession, custody, or control of a person other than the debtor, in order to satisfy the judgment against the debtor.” See 28 U.S.C. § 3205. After the garnishee is served, it must file an answer disclosing whether it holds any such property. See id. Under § 3205(c)(5), the parties may object to the answer and request a hearing. See id. In addition, if the garnishee fails to answer or withhold property, the Unites States may at any time petition the court under § 3205(c)(6) for a hearing and an order to withhold property. See id. After all pending orders are entered, the court enters a disposition order under § 3205(c)(7) directing the garnishee as to the disposition of the property at issue. See id. Under 28 U.S.C. § 3013, the Court “may at any time on its own initiative or the motion of any interested party . . . make an order denying, limiting, conditioning, regulating, extending, or modifying the use of any enforcement procedure under [the FDCPA].” See 28 U.S.C. § 3013. In addition, the All Writs Act permits the Court to “issue all writs necessary or appropriate in aid of their responsive jurisdictions and agreeable to the usages and principles of law.” See 28 U.S.C. § 1651. Under 28 U.S.C. § 3202(a), the All Writs Act is specifically made applicable to
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Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 15 of 23 PageID 336 the enforcement remedies in the FDCPA. See 28 U.S.C. § 3202(a) (court may “issue other writs pursuant to section 1651 of title 28, United States Code, as necessary to support” FDCPA postjudgment remedies). The All Writs Act has also been routinely used to aid the government in collecting debts. See, e.g., United States v. Yielding, 657 F.3d 722, 727-28 (8th Cir. 2011) (All Writs Act may be used against defendant and those “in privity” with him to prevent dissipation and concealment of assets); United States v. Friedman, 143 F.3d 18, 19-20 (1st Cir. 1998) (pursuant to the All Writs Act, court restrained defendant from transferring assets prior to sentencing).
In this case, Frieda Johnson, J&J Egg Farm, and McKethan Espinoza filed answers stating that they do not hold and do not anticipate holding any property in the future belonging to HCF. (Dkt. 34-35.) At the time they filed their answer, they were presumably relying on paragraph 5 of Exhibit A of the Settlement Agreement, which states that HCF has no interest in the lawsuit that it filed and will release all claims with prejudice without receiving any of the settlement proceeds. (Pl.’s App. at 9.) As set forth below, however, HCF is the true owner of the settlement proceeds under state law nominee and sham-to-perpetrate-a-fraud theories, so the funds should be paid to the United States. II. The Estate of Thurman Johnson is HCF’s nominee in the Mills County Lawsuit, so
the settlement proceeds should be paid to the United States for application to HCF’s debt. The $600,000 in settlement proceeds should be paid to the United States because the Estate of Thurman Johnson is acting as nothing more than HCF’s nominee to shield the lawsuit proceeds from the United States. It is well-established that vesting formal title in a nominee will
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Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 16 of 23 PageID 337 not place the property out of the reach of a federal lien. See Macklin v. United States, 300 F.3d 814, 818 n.2 (7th Cir. 2002) (IRS proceeds Aagainst an alter ego or nominee of a delinquent taxpayer for the purposes of satisfying the taxpayer=s obligations@); United States v. Kitsos, 770 F.Supp. 1230, 1236 (N.D. Ill. 1991) (individual=s dominion over assets purportedly transferred to church was grounds to disregard the church=s independent existence); Faith Missionary Baptist Church v. Internal Revenue Serv. (In re Faith Missionary Baptist Church), 174 B.R. 454, 466469 (Bankr. E.D. Tex. 1994) (although church held legal title to assets, assets belonged to individual as church was individual=s alter ego). A judgment creditor may levy upon property held in the name of someone other than the judgment debtor if the debtor engaged in a legal fiction by placing the title to the property in the hands of someone else while retaining the benefits of ownership. See Dexia Credit Local v. Rogan, No. 02C8288, 2008 WL 4543013, at *8 (N.D. Ill. Oct. 9, 2008) (unpublished) (citing Richards v. United States (In re Richards), 231 B.R. 571, 578 (E.D. Pa. 1999)). In Texas, the legal fiction between an individual and an entity may be pierced if the entity Ahas been used as part of a basically unfair device to achieve an inequitable result.@ W. Horizontal Drilling, Inc. v. Jonnet Energy Corp., 11 F.3d 65, 67 (5th Cir. 1994) (quoting Castleberry v. Branscum, 721 S.W.2d 270, 271 (Tex. 1986), superseded on other grounds by former Bus. Corp. Act art. 2.21, re-codified at Tex. Bus. Orgs. Code § 21.223).
A nominee is someone who holds bare legal title to property for the benefit of another. Scoville v. United States, 250 F.3d 1198, 1202 (8th Cir. 2001); see also Oxford Capital Corp. v. United States, 211 F.3d 280, 284 (5th Cir. 2000). In considering whether the United States may seize property titled to a nominee, many courts consider the following factors: (1)
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Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 17 of 23 PageID 338 whether the debtor expended personal funds for the property; (2) whether the alleged nominee paid inadequate or no consideration; (3) whether the property was placed in the alleged nominee=s name in anticipation of a lawsuit or other liability; (4) whether the debtor enjoys the benefits of, retains possession of, and exercises dominion and control over the property; (5) whether a family or other close relationship exists between the debtor and the alleged nominee; (6) whether conveyances between the debtor and alleged nominee were recorded; and (7) whether the alleged nominee interferes with the debtor=s use of the property. See, e.g., United States v. Harrison, 366 B.R. 656, 665-66 (S.D. Tex. 2007); Cody v. United States, 348 F.Supp.2d 682, 694-95 (E.D. Va. 2004); Holman v. United States, 505 F.3d 1060, 1065 n.1 (10th Cir. 2007) (citing Spotts v. United States, 429 F.3d 248, 253 n.2 (6th Cir. 2005)); and Dexia, 2008 WL 4543013, at *8 (citing Richards, 231 B.R. at 579 and United States v. Reed, 168 F.Supp.2d 1266, 1268-69 (D. Utah 2001)). Not all of the factors are of equal weight, and they Ashould not be applied rigidly or mechanically, as no one factor is determinative.@ Richards, 231 B.R. at 579. However, one of the most significant factors for determining nominee status is whether the judgment debtor can control (either directly or indirectly) the asset at issue. See id. (citing United States v. Kudasik, 21 F.Supp.2d 501, 508) (W.D. Pa. 1998) (citing Shades Ridge Holding Co., Inc. v. United States, 888 F.2d 725, 728 (11th Cir. 1989)).
Based on these factors, the Estate of Thurman Johnson is pursuing the Mills County Lawsuit as HCF’s nominee. First, McKethan is acting as the attorney for both HCF and the Estate of Thurman Johnson, even though paragraph 11 of the estate’s intervention petition states that there is a dispute between the two entities. (Pl.’s App. at 59-68.) Second, McKethan
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Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 18 of 23 PageID 339
signed the Settlement Agreement as HCF’s agent and attorney-in-fact waiving any interest HCF
has in the Mills County Lawsuit without receiving any payment. (Id. at 7-10.) Third, the
Confidential Agreement was executed within a week after Henry’s spouse and daughter were
served with the United States’ initial garnishment action. (Id. at 1-5, 73-75.) Fourth, instead of
being administered in probate, all the settlement proceeds are funnelled to Henry’s daughter,
Moreland, and Moreland’s children. (Id. at 1-5.) Not only are the funds being split among the
children but they are also being used to repay debts that HCF owes Henry and Moreland
individually. (Id.)
Fifth, the parties attempted to hide the Confidential Agreement. (Id. at 1-5.) The parties
were obviously concerned that the Confidential Agreement would be discovered because
paragraph 7 states that:
In the event that any party receives a request to disclose all or any part of the terms and provisions of this Agreement under the terms of a subpoena or order issued by a Court or by a Governmental Body, the parties agrees [sic] as follows:
a. To notify the other parties immediately of the existence, terms, and circumstances surrounding such request;
b. To consult with the other parties on the advisability of taking legal steps to resist or narrow such request; and
c. If disclosure of such information is required to prevent the party from being held in contempt or subject to other penalty, to furnish only such portion of the terms and provisions as it is legally compelled to disclose and to exercise its best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to the disclosed third-party.
(Id. at 3.) (emphasis added.) Paragraph 12 of the agreement further states:
In the event that any party breaches the confidentiality of this Agreement, all parties acknowledge and agree that the other parties will incur certain damages and
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Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 19 of 23 PageID 340 costs that are not either easily or accurately ascertainable. Therefore, in the event of such a breach, the breaching party agrees to pay to the other parties, as liquidated damages the sum of $100,000.00, each. The Parties agree that this amount is reasonable under the circumstances existing at the time of the execution of this Agreement. (Id. at 3-4.) (emphasis added.) Sixth, all parties agree that Thurman Johnson transferred his interest in J&J Egg Farm to
HCF years ago. (Id. at 1, 61, 64.) This is set forth in the Confidential Agreement as well as the Stock Agreement, which was signed by Moreland and attached as Exhibit A to HCF’s original complaint in the lawsuit. (Id.) Thurman Johnson’s interest was only resurrected in response to the United States’ collection efforts and after Henry agreed to split the pot of money with Moreland and her children. (Id. at 1-5, 73-75.)
Seventh, this scheme was part of a larger attempt by Henry to shield all assets from seizure. (Id. at 69-72, 113.) Namely, in addition to HCF’s interest in the Mills County Lawsuit, Henry transferred his property in Proctor, Texas, another non-exempt asset valued at approximately $325,000.00, to his daughter, Robin Aaberg, less than a month after receiving a demand letter from the United States Attorney’s Office. (Id.) The Confidential Agreement is, accordingly, nothing more than an elaborate scheme to shield assets and allow the estate to pursue the Mills County Lawsuit on behalf of HCF.
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Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 20 of 23 PageID 341
III. Even if it does not find that the Estate of Thurman Johnson is HCF’s nominee, the Court may still order the funds turned over to the United States because the entire scheme is nothing more than a sham-to-perpetrate-a-fraud on the United States and the disabled workers. Although similar to a nominee theory, the sham-to-perpetrate-a-fraud theory is a separate
legal doctrine available to set aside a legal fiction and permit creditors to seize property. See Castleberry, 721 S.W.2d at 271-73. The nominee theory focuses on the debtor’s relationship to the property. See Scoville, 250 F.3d at 1202. The sham theory, however, may be used any time when recognizing the separate legal existence of an entity would bring about an inequitable result. Castleberry, 721 S.W.2d at 271-73. To do so, a creditor does not need to prove actual fraud or an intent to defraud. Id. All that a creditor needs to establish is “that adherence to the fiction would promote injustice and lead to an inequitable result.” Id. Because this is an equitable doctrine, Texas takes a flexible fact-specific approach focusing on the equity. Id.
For the reasons set forth in the previous section, the actions of Henry, Moreland, and those in concert with them in executing the Confidential Agreement amount to little more than an elaborate subterfuge to shield assets from seizure and further harm the disabled workers. (Pl.’s App. at 1-5.) After the United States served its initial garnishment action, Henry and Moreland quickly executed and made every attempt to hide the Confidential Agreement while the Estate of Thurman Johnson intervened and litigated the Mills County Lawsuit on HCF’s behalf. (Id. at 15; 73-75.) McKethan represents both HCF and the Estate of Thurman Johnson, who would appear to have competing interests in the Mills County Lawsuit, and signed the Settlement Agreement as the agent for HCF waiving all of HCF’s claims in the lawsuit without receiving a penny. (Id. at 59-68.) Of course, the money is really supposed to flow to Robin Aaberg to
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Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 21 of 23 PageID 342
cover Henry’s interest in HCF as well as repay a $150,412.50 debt HCF owes him, and the rest
to Moreland and her children for their cooperation. (Id. at 1-5.) Even if the Court does not find
that the Estate of Thurman Johnson is HCF’s nominee, it should still order the turnover of the
funds to the United States due to the substantial injustice that would befall the disabled workers
if Henry is allowed to benefit from his misconduct.
CONCLUSION
As set forth above, Frieda Johnson holds property belonging to HCF, and the Court has
the authority to order her to turnover the property to the United States pursuant to 28 U.S.C.
§§ 1651, 3013, 3202(a), and 3205(c)(6) and (7). The United States, accordingly, requests that
the Court order Frieda Johnson to turnover the $600,000 in settlement proceeds to the United
States for application to the debt rendered in Case No. 3:09-CV-0162, United States District
Court, Southern District of Iowa.
Respectfully submitted,
JOHN R. PARKER UNITED STATES ATTORNEY
s/ Megan J. Fahey Megan J. Fahey Assistant United States Attorney Texas Bar No. 24043655 Burnett Plaza Suite 1700 801 Cherry Street Unit 4 Fort Worth, TX 76102-6882 Telephone: 817-252-5200 Facsimile: 817-252-5455 megan.fahey@usdoj.gov
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Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 22 of 23 PageID 343 CERTIFICATE OF CONFERENCE
I certify that on August 26, 2015, I attempted to confer with Mark Threadgill, counsel for Frieda Johnson and J&J Egg Farm, via telephone conference regarding this motion. Although he returned my first call, I was out of the office, and he left a voicemail message. As of the filing of this motion, he has not returned my second call. I also certify that on August 26, 2015, I attempted to confer with Stephen McKethan, counsel for Kenneth Henry and HCF, regarding this motion. I left a message with his office, but as of the filing of this motion, he has not returned my call.
s/ Megan J. Fahey Megan J. Fahey Assistant United States Attorney
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Case 3:12-cv-04737-P Document 40 Filed 08/26/15 Page 23 of 23 PageID 344

CERTIFICATE OF SERVICE I certify that, on August 26, 2015, the United States’ Emergency Motion for Turnover Order was sent by court-enabled electronic case filing to all parties who consented to receive service by electronic means and also by first class mail to the following:

Mark Threadgill Threadgill Law Firm, PLLC 5100 Andrews Hwy Midland, Texas 79703
Stephen McKethan Bethany Espinoza McKethan Espinoza PLLC 299 South Columbia Stephenville, Texas 76401
David Scieszinski 108 E. 4th Street Wilton, IA 52778

s/ Megan J. Fahey Megan J. Fahey Assistant United States Attorney

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 U.S. Equal Employment Opportunity Commission
PRESS RELEASE 9-19-12
Intellectually Disabled Workers Awarded $1.3M for Pay Discrimination by Henry's Turkey Service
Further Proceedings on Disability-Based Abuse and Harassment Allegations Lie Ahead
DALLAS -- Hill Country Farm s Inc., doing business as Henry's Turkey Service, violated the Am ericans with Dis abilities Act (ADA) by paying 32 workers with intellectual disabilities s everely s ubs tandard wages, a judge has ruled in a lawsuit filed by the U.S. Equal Em ploym ent Opportunity Com m iss ion (EEOC). The court ordered the com pany, based in Goldthwaite, Texas , to pay its form er em ployees lawful wages totaling $1.3 million for jobs they perform ed under contract at a turkey proces sing plant in Wes t Liberty, Iowa between 2007 and 2009.
The EEOC alleged in its lawsuit (No. 3:11-cv-00041, filed in U.S. District Court for the Southern District of Iowa, Davenport Division,) that Henry's Turkey exploited a clas s of dis abled workers because their intellectual impairments made them vulnerable and unaware of the extent to which their legal rights were being violated.
In this latest ruling, Senior U.S. District Court Judge Charles R. Wolle found that, rather than the total of $65 dollars per month Henry's Turkey paid to the disabled workers while contracted to work on an evis ceration line at the plant, the employees s hould have been com pens ated at the average wage of $11-12 per hour, reflecting pay typically earned by non-dis abled workers who perform ed the same or sim ilar work. The EEOC's wage claims for each worker ranged from $28,000 to $45,000 in lost income over the course of their last two years before the Henry's Turkey Service operation was shut down in February 2009.
"This case reflects the Commission's longstanding commitment to enforce the anti-discrimination laws nationwide on behalf of all workers, including workers with intellectual disabilities and other vulnerable com munities," said EEOC General Counsel P. David Lopez. "It is a serious m istake for any employer not to adopt safeguards against unlawful discrimination based on the assumption that workers will not exercise their rights due to fear or the lack of understanding."
Robert A. Canino, regional attorney for the Dallas District Office of the EEOC, which is litigating the cas e, s aid, "I believe that this positive res ult furthers the ongoing discuss ion about how far our country has com e in prom oting and supporting employment opportunities for persons with mental, intellectual and developmental disabilities. Unfortunately, this case als o reflects the sad reality that we s till have a ways to go to ensure that em ployment of pers ons with dis abilities does not require them to s acrifice their true earning capacity or their hum an dignity."
In its m otion for partial s um m ary judgm ent, the EEOC argued that Henry's Turkey Service was not jus tified in paying dis abled workers wages that were lower than the m inim um wage for Iowa where they lived and worked, and that the disabled workers, some of whom had performed the work for over 25 years, were due the same wage rate as non-disabled workers. In support of its motion, EEOC included the s tatem ent of a West Liberty Foods supervisor, who stated that the contracted Henry's workers were as productive as other workers in the plant, and that they actually dem onstrated their knowledge and skills to persons who were being hired to replace them as the Henry's Turkey contract operations were winding down.
The EEOC also subm itted evidence from West Liberty Foods records showing that while the plant paid Henry's Turkey Service as much as $11,000 per week for the work performed by the crew of 25-30 disabled m en, Henry's paid the men only an average of $15 per week each.
Henry's maintained that it should be credited with wages for providing a 100-year-old former schoolhouse as living quarters. The EEOC subm itted evidence, however, from various witness es, including adm iss ions by Henry's s upervis ors , that the "bunkhouse"-- from which the m en were later evacuated -- was clos ed down by the s tate fire marshal as unsafe, its heating was inadequate, the bug-infested building had rodent problems, and the roof was

in such disrepair that buckets were put out to catch water pouring in. The EEOC's pos ition, supported by testim ony of the U.S. Department of Labor, was that it was unlawful for the com pany to deny the disabled workers their full wages and benefits by claiming a "credit" for these subs tandard living conditions .
Dr. Sue Gant, an expert witness, supported the EEOC's claims that the company's scheme involved purposeful financial exploitation of the trusting workers. She concluded that Henry's conduct "including acts of deliberate misrepresentation" about wages and expenditures, was profit-driven and deprived the workers of "economic independence and s elf-s ufficiency." She further declared that the com pany "took advantage of the workers . . .knowing that they would not likely be dis covered because the workers were disabled."
"Com pany officers were never able to explain why they were deducting about $1,000 per m onth from each employee's wages to cover the com pany's alleged room and board and expenses, while sim ultaneously pulling out hundreds of dollars per m onth from each of the men's personal Social Security SSI and disability benefit accounts to reim burs e its elf for the very s am e des cribed 'expenses'," added Regional Attorney Canino. Anyone could plainly see that the m ath jus t didn't add up, while the personal cos ts to the men continued to multiply."
In addition to the discrim inatory pay practices which are the subject of the court's order, the EEOC's suit als o alleges that the com pany subjected the dis abled workers to abusive verbal and physical harassm ent, unneces sarily restricted their freedom , and impos ed harsh punis hm ents and other adverse terms and conditions of em ployment s uch as requiring them to live collectively in s ubs tandard living conditions and failing to provide proper health care. The EEOC's trial on these remaining issues regarding mistreatment of the workers is currently s cheduled for March 2013.
The EEOC enforces the nation's laws prohibiting employment discrimination. Further information about the EEOC is available at www.eeoc.gov.

 
 Case: 3:11-cv-41 As of: 01/30/2016 03:07 PM CST 1 of 10
TERMED,EXHIBITS
U.S. District Court Southern District of Iowa (Davenport) CIVIL DOCKET FOR CASE #: 3:11−cv−00041−CRW−TJS

Equal Employment Opportunity Commission v. Hill Country Farms, Inc. Assigned to: Senior Judge Charles R. Wolle Referred to: Magistrate Judge Thomas J. Shields Case in other court: 8th CCA, 13−02796 Cause: 42:12101 The Americans with Disabilities Act of 1990
Plaintiff

Date Filed: 04/06/2011 Date Terminated: 05/14/2013 Jury Demand: Both Nature of Suit: 445 Civil Rights: Americans with Disabilities − Employment Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Devika Seth EEOC 207 South Houston Street, 3rd Flr Dallas, TX 75202 214−253−2764 Fax: 214−253−2749 Email: devika.seth@eeoc.gov ATTORNEY TO BE NOTICED

Robert Anthony Canino EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (TX) Dallas District Office 207 S. Houston Street Dallas, TX 75202 214−253−2750 Fax: 214−253−2749 Email: robert.canino@eeoc.gov ATTORNEY TO BE NOTICED

V.
Defendant
Hill Country Farms, Inc. doing business as Henry's Turkey Services

represented by David L Scieszinski 108 E. Fourth Street P.O. Box 394 Wilton, IA 52778 563 732 2002 Fax: 563 732 2069 Email: dvdls@netwtc.net ATTORNEY TO BE NOTICED

Date Filed 10/31/2014 10/10/2014 10/01/2014
07/24/2014

# Docket Text
129 RECEIPT FOR EXHIBITS picked up by David L Scieszinski. (bp ) (Entered: 11/03/2014)
128 RECEIPT FOR EXHIBITS picked up by Robert Anthony Canino. (bp ) (Entered: 10/10/2014)
127 EXHIBIT WITHDRAWAL LETTER to Robert Anthony Canino, Devika Seth, David L Scieszinski. Withdrawal of Exhibits due by 10/31/2014. (Attachments: # 1 Receipt for Exhibits) (bp ) (Entered: 10/01/2014)
126 MANDATE of USCA as to 111 Notice of Appeal filed by Hill Country Farms, Inc. (vr) (Entered: 07/24/2014)

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07/17/2014 05/09/2014 10/31/2013 10/31/2013
10/31/2013
10/29/2013
10/29/2013
10/29/2013
10/29/2013
09/26/2013 09/20/2013

125 ORDER of USCA advising that both the petition for rehearing en banc and the petition for rehearing by the panel are denied as to 111 Notice of Appeal filed by Hill Country Farms, Inc. (vr) (Entered: 07/17/2014)
124 OPINION/JUDGMENT of USCA advising district court is Affirmed as to 111 Notice of Appeal filed by Hill Country Farms, Inc. Mandate to issue in 45 days. (Attachments: # 1 Opinion, # 2 Judgment) (vr) (Entered: 05/09/2014)
123 Documents Sent re 111 Notice of Appeal. (bp ) (Entered: 10/31/2013)
122 TRANSCRIPT of Proceedings re 78 Jury Trial − Held held on April 26, 2013 before Judge Charles R. Wolle. Court Reporter: Heidi Krafka, Telephone Number: 563−355−8400. Page Nos: 1−220. Transcript may be viewed at court public terminal or purchased through Court Reporter before deadline for Release of Transcript Restriction. After that date it may be obtained through court reporter, Clerk's Office, or PACER. Redaction Request due 11/25/2013. Redacted Transcript Deadline set for 12/5/2013. Release of Transcript Restriction set for 2/3/2014. (bp ) (Entered: 10/31/2013)
121 TRANSCRIPT of Proceedings held on April 25, 2013 before Judge Charles R. Wolle. Court Reporter: Heidi Krafka, Telephone Number: 563−355−8400. Page Nos.: 1−241. Transcript may be viewed at court public terminal or purchased through Court Reporter before deadline for Release of Transcript Restriction. After that date it may be obtained through court reporter, Clerk's Office, or PACER. Redaction Request due 11/25/2013. Redacted Transcript Deadline set for 12/5/2013. Release of Transcript Restriction set for 2/3/2014. (bp ) (Entered: 10/31/2013)
120 TRANSCRIPT of Proceedings re 85 Jury Trial − Held held on 4/30/2013 before Judge Wolle. Court Reporter: Terri L. Martin, Telephone Number: 515.284.6444. Page No(s).: 924−978. Transcript may be viewed at court public terminal or purchased through Court Reporter before deadline for Release of Transcript Restriction. After that date it may be obtained through court reporter, Clerk's Office, or PACER.. Redaction Request due 11/22/2013. Redacted Transcript Deadline set for 12/2/2013. Release of Transcript Restriction set for 1/30/2014. (Martin, Terri) (Entered: 10/29/2013)
119 TRANSCRIPT of Proceedings re 81 Jury Trial − Held held on 4/29/2013 before Judge Wolle. Court Reporter: Terri L. Martin, Telephone Number: 515.284.6444. Page No(s).: 765−923. Transcript may be viewed at court public terminal or purchased through Court Reporter before deadline for Release of Transcript Restriction. After that date it may be obtained through court reporter, Clerk's Office, or PACER.. Redaction Request due 11/22/2013. Redacted Transcript Deadline set for 12/2/2013. Release of Transcript Restriction set for 1/30/2014. (Martin, Terri) (Entered: 10/29/2013)
118 TRANSCRIPT of Proceedings re 76 Jury Trial − Held held on 4/24/2013 before Judge Wolle. Court Reporter: Terri L. Martin, Telephone Number: 515.284.6444. Page No(s).: 153−369. Transcript may be viewed at court public terminal or purchased through Court Reporter before deadline for Release of Transcript Restriction. After that date it may be obtained through court reporter, Clerk's Office, or PACER.. Redaction Request due 11/22/2013. Redacted Transcript Deadline set for 12/2/2013. Release of Transcript Restriction set for 1/30/2014. (Martin, Terri) (Entered: 10/29/2013)
117 TRANSCRIPT of Proceedings re 74 Jury Trial − Begun held on 4/23/2013 before Judge Wolle. Court Reporter: Terri L. Martin, Telephone Number: 515.284.6444. Page No(s).: 1−152. Transcript may be viewed at court public terminal or purchased through Court Reporter before deadline for Release of Transcript Restriction. After that date it may be obtained through court reporter, Clerk's Office, or PACER.. Redaction Request due 11/22/2013. Redacted Transcript Deadline set for 12/2/2013. Release of Transcript Restriction set for 1/30/2014. (Martin, Terri) (Entered: 10/29/2013)
116 Partial Transcript of Trial Sent to 8th Circuit Court of Appeals, re: 111 Notice of Appeal. (bp ) (Entered: 09/26/2013)
115 TRANSCRIPT of Proceedings, Partial Transcript, Testimony of Kenneth Henry held on 4/29/13 before Judge Wolle. Court Reporter: Terri L. Martin, Telephone Number: 515.284.6444. Page No(s).: 1−136. Transcript may be viewed at court public terminal

Case: 3:11-cv-41 As of: 01/30/2016 03:07 PM CST 3 of 10

08/15/2013 08/15/2013 08/12/2013 08/06/2013 07/01/2013
06/24/2013 06/11/2013 06/10/2013 06/06/2013 05/31/2013 05/24/2013
05/24/2013
05/23/2013 05/21/2013 05/21/2013 05/20/2013 05/16/2013

or purchased through Court Reporter before deadline for Release of Transcript Restriction. After that date it may be obtained through court reporter, Clerk's Office, or PACER.. Redaction Request due 10/15/2013. Redacted Transcript Deadline set for 10/24/2013. Release of Transcript Restriction set for 12/23/2013. (Martin, Terri) (Entered: 09/20/2013)
114 USCA Scheduling Order as to 111 Notice of Appeal filed by Hill Country Farms, Inc. (vr) (Entered: 08/15/2013)
113 USCA Case Number 13−2796 for 111 Notice of Appeal filed by Hill Country Farms, Inc. (vr) (Entered: 08/15/2013)
112 NOTIFICATION OF APPEAL and NOA Supplement by District Court Clerk to USCA re 111 Notice of Appeal filed on 8/6/2013. (vr) (Entered: 08/12/2013)
111 NOTICE OF APPEAL by Hill Country Farms, Inc.. Fee paid in the amount of $455 receipt number 0863−2110283. (Scieszinski, David) (Entered: 08/06/2013)
110 CORRECTION OF CLERICAL ERROR OF FINAL JUDGMENT 108 . ORDER granting 109 Motion to Amend/Correct. Signed by Senior Judge Charles R. Wolle on 7/1/2013. (alb) Modified on 7/1/2013 to include correction information (rmj). (Entered: 07/01/2013)
109 Unresisted MOTION to Amend/Correct 108 Order on Final Judgment by Equal Employment Opportunity Commission.Motions referred to Thomas J. Shields. Responses due by 7/11/2013 (Canino, Robert) (Entered: 06/24/2013)
108 FINAL JUDGMENT WITH INTEREST AND COSTS. Signed by Senior Judge Charles R. Wolle on 6/11/2013. (alb) (Entered: 06/11/2013)
107 Text Minute Entry for hearing held before Senior Judge Charles R. Wolle by telephone conference call on 6/10/2013. Arguments heard. Matters deemed submitted for ruling. (Court Reporter Terri Martin) (alb) (Entered: 06/10/2013)
106 BRIEF EEOC Supplemental Post Trial Brief on Prejudgment Interest, Fees, and Proposed Rulings by Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit C. McGhee, # 2 Affidavit B. Fuller)(Canino, Robert) (Entered: 06/06/2013)
105 BILL OF COSTS by Equal Employment Opportunity Commission. Deadline for Objections to Bill of Costs set for 6/17/2013. (Attachments: # 1 Affidavit and Attachments in Support of Bill of Costs)(Canino, Robert) (Entered: 05/31/2013)
104 TEXT ORDER that 6/10/13 hearing will be held by telephone conference call placed by the court to counsel of record at 9:00 a.m., approving the parties' stipulation re: injunctive relief, and extending to 5/31/13 the filing deadline for bill of costs.Signed by Senior Judge Charles R. Wolle on 5/24/2013. (alb) Modified on 5/24/2013 (bp, added "TEXT"). (Entered: 05/24/2013)
103 Text Minute Entry for status conference held before Senior Judge Charles R. Wolle by telephone conference call on 5/24/2013. Counsel agree that 6/10/13 hearing will be held by telephone conference call. Order to follow. (Court Reporter none) (alb) (Entered: 05/24/2013)
102 STIPULATION Re: Post−Trial Non−monetary Injunctive Relief by Equal Employment Opportunity Commission. (Canino, Robert) (Entered: 05/23/2013)
Set Hearing: Telephone Conference set for 5/24/2013 at 10:00 AM in Phone Hearing before Senior Judge Charles R. Wolle. (dmh) (Entered: 05/21/2013)
101 ORDER scheduling a telephone conference call to counsel of record at 10:00 a.m. on 5/24/13 to discuss the agenda for the 6/10/13 hearing. See order for specifics. Signed by Senior Judge Charles R. Wolle on 5/21/2013. (alb) (Entered: 05/21/2013)
Parties in this case have not consented to Video Recording the post−verdict hearing in this case as part of the Cameras in Court Pilot Project. (dmh) (Entered: 05/20/2013)
100 CAMERAS PILOT PROJECT: NOTIFICATION REGARDING VIDEO RECORDING − Parties should complete Form E, Party Response Regarding Video Recording, and return it to the Clerk's Office no later than 7 (seven) days before the

Case: 3:11-cv-41 As of: 01/30/2016 03:07 PM CST 4 of 10

05/14/2013
05/14/2013
05/14/2013
05/10/2013
05/10/2013 05/09/2013
05/01/2013
05/01/2013 05/01/2013 05/01/2013
05/01/2013 04/30/2013 04/30/2013 04/30/2013 04/30/2013 04/30/2013
04/30/2013 04/30/2013 04/30/2013 04/29/2013

scheduled hearing. Do NOT file Form E in CM/ECF. E−mail Form E to IASD_casemanagers@iasd.uscourts.gov. Notification and Party Response Forms Regarding Video Recording sent to Parties. (rmj) (Entered: 05/16/2013)
Set Hearings: In Court Hearing set regarding post−verdict issues for 6/10/2013 09:00 AM in Davenport − Room 120 − 1st Floor before Senior Judge Charles R. Wolle. (rmj) (Entered: 05/14/2013)
99 PARTIAL JUDGMENT in favor of Equal Employment Opportunity Commission against Hill Country Farms, Inc. Signed by Deputy Clerk, R Johnson for Clerk Marjorie Krahn on 5/14/2013. (rmj) Modified on 6/12/2013 to add "PARTIAL" (rmj). (Entered: 05/14/2013)
98 ORDER FOR JUDGMENT and ORAL ARGUMENT scheduled to be held at 9 a.m. on June 10, 2013 at the U.S. Courthouse in Davenport, Iowa. Signed by Senior Judge Charles R. Wolle on 5/14/2013. (alb) (Entered: 05/14/2013)
97 TRIAL BRIEF RE: PROPOSED ENTRY OF JUDGMENT AND ORDER by Equal Employment Opportunity Commission. (Attachments: # 1 Affidavit Declaration and Calculation of Damages, # 2 Affidavit Declaration and Calculation of PreJudgment Interest)(Canino, Robert) (Entered: 05/10/2013)
96 STATEMENT by Hill Country Farms, Inc.. (Scieszinski, David) (Entered: 05/10/2013)
95 TEXT ORDER. Once the court has reviewed the parties' submissions concerning what judgment should be entered on the jury verdict, the court will enter judgment without receiving oral argument of counsel. Signed by Senior Judge Charles R. Wolle on 5/9/2013. (alb) (Entered: 05/09/2013)
94 TEXT ORDER. Verdicts were received and filed this date. By May 10, 2013, the parties may submit proposed judgments to be entered and supporting briefs. Signed by Senior Judge Charles R. Wolle on 5/1/13. (alb) (Entered: 05/01/2013)
93 Sealed Jury Verdict. (dmh) (Entered: 05/01/2013)
92 JURY VERDICT. (dmh) (Entered: 05/01/2013)
91 Minute Entry for proceedings held before Senior Judge Charles R. Wolle. Seventh and Final Day of Jury Trial completed on 5/1/2013. (Court Reporter FTR Gold−120) (dmh) (Entered: 05/01/2013)
86 Proposed Jury Instructions by Equal Employment Opportunity Commission. (Canino, Robert) (Entered: 05/01/2013)
90 STIPULATIONS READ TO THE JURY AT THE OUTSET OF THE TRIAL. (dmh) (Entered: 05/01/2013)
89 Jury Question and Answer. (dmh) Modified on 5/1/2013 to attach answer (dmh). (Entered: 05/01/2013)
88 ORDER FOR LUNCH FOR DELIBERATING JURY. Signed by Senior Judge Charles R. Wolle on 4/30/2013. (dmh) (Entered: 05/01/2013)
87 Jury Instructions. (dmh) (Entered: 05/01/2013)
85 Minute Entry for proceedings held before Senior Judge Charles R. Wolle: Sixth Day of Jury Trial held on 4/30/2013. (Court Reporter Terri Martin) (dmh) (Entered: 04/30/2013)
84 Exhibit List. (dmh) (Entered: 04/30/2013)
83 Witness List. (dmh) (Entered: 04/30/2013)
82 AUTHORITIES presented on 4/29/13 by Hill Country Farms, Inc. (dmh) (Entered: 04/30/2013)
81 Minute Entry for proceedings held before Senior Judge Charles R. Wolle. Fifth Day of Jury Trial held on 4/29/2013. (Court Reporter Terri Martin) (dmh) (Entered: 04/29/2013)

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04/28/2013 04/28/2013 04/26/2013
04/25/2013
04/24/2013
04/24/2013 04/23/2013
04/23/2013 04/22/2013
04/19/2013 04/19/2013 04/19/2013 04/19/2013 04/18/2013 04/18/2013
04/17/2013 04/16/2013 04/16/2013 04/16/2013 04/16/2013

80 Proposed Jury Instructions by Equal Employment Opportunity Commission. (Canino, Robert) (Entered: 04/28/2013)
79 Proposed Jury Instructions by Equal Employment Opportunity Commission. (Canino, Robert) (Entered: 04/28/2013)
78 Minute Entry for proceedings held before Senior Judge Charles R. Wolle: Fourth Day of Jury Trial held on 4/26/2013. (Court Reporter Heidi Krafka) (dmh) (Entered: 04/26/2013)
77 Minute Entry for proceedings held before Senior Judge Charles R. Wolle: 3rd day of Jury Trial held on 4/25/2013. (Court Reporter Heidi Krafka.) (bp ) (Entered: 04/26/2013)
76 Minute Entry for proceedings held before Senior Judge Charles R. Wolle: Second Day of Jury Trial held on 4/24/2013. (Court Reporter Terri Martin) (dmh) (Entered: 04/24/2013)
75 ORDER granting 59 Motion in Limine, and denying 70 Motion to Vacate. Signed by Senior Judge Charles R. Wolle on 4/24/2013. (dmh) (Entered: 04/24/2013)
74 Minute Entry for proceedings held before Senior Judge Charles R. Wolle: Voir Dire and First Day of Jury Trial held on 4/23/2013. (Court Reporter Terri Martin) (dmh) (Entered: 04/23/2013)
72 Jury Challenge Sheet filed by Courtroom Deputy. (dmh) (Entered: 04/23/2013)
71 TEXT ORDER. At the commencement of the hearing at 8:30 a.m. on April 23, 2013, the court will address all pending motions and questions about trial procedure, including what will be the length of opening statements. Signed by Senior Judge Charles R. Wolle on 4/22/2013. (alb) (Entered: 04/22/2013)
70 MOTION to Vacate by Hill Country Farms, Inc.. Responses due by 5/6/2013 (Scieszinski, David) (Entered: 04/19/2013)
69 OBJECTIONS to 64 Proposed Jury Instructions by Equal Employment Opportunity Commission. (Canino, Robert) (Entered: 04/19/2013)
68 OBJECTIONS to 64 Proposed Jury Instructions by Equal Employment Opportunity Commission. (Canino, Robert) (Entered: 04/19/2013)
67 Proposed Jury Instructions by Equal Employment Opportunity Commission. (Canino, Robert) (Entered: 04/19/2013)
66 ORDER granting 57 Motion to Strike. See order for particulars. Signed by Senior Judge Charles R. Wolle on 4/18/2013. (alb) (Entered: 04/18/2013)
65 Text Minute Entry for proceedings held before Senior Judge Charles R. Wolle: hearing held by telephone conference call on 4/18/2013. The court granted the unresisted motion to strike and took under advisement the motion in limine. The court established a settlement deadline of 4 p.m. on 4/19/13. (Court Reporter Ann Moyna) (alb) (Entered: 04/18/2013)
64 Proposed Jury Instructions by Hill Country Farms, Inc.. (Scieszinski, David) (Entered: 04/17/2013)
63 Proposed Voir Dire by Hill Country Farms, Inc.. (Scieszinski, David) (Entered: 04/16/2013)
62 ORDER ON FINAL PRETRIAL CONFERENCE. Signed by Magistrate Judge Thomas J. Shields on 4/16/2013. (jeb) (Entered: 04/16/2013)
Set Hearing: Motion Hearing set for 4/18/2013 10:30 AM in Phone Hearing before Senior Judge Charles R. Wolle. (bp ) (Entered: 04/16/2013)
61 ORDER scheduling telephone hearing on motions #57 and 59, update on trial status by phone call placed by court to counsel of record at 10:30 a.m. on 4/18/13. Signed by Senior Judge Charles R. Wolle on 4/16/2013. (alb) (Entered: 04/16/2013)

Case: 3:11-cv-41 As of: 01/30/2016 03:07 PM CST 6 of 10

04/15/2013 04/15/2013 04/15/2013 04/15/2013 04/15/2013 04/15/2013 04/12/2013
04/10/2013 04/10/2013 04/01/2013
04/01/2013 02/26/2013 02/26/2013 02/22/2013 02/11/2013 02/08/2013 02/07/2013 01/23/2013

60 Proposed Jury Instructions by Equal Employment Opportunity Commission. (Canino, Robert) (Entered: 04/15/2013)
59 First MOTION in Limine re: Defenses at Trial by Equal Employment Opportunity Commission. Responses due by 5/2/2013 (Canino, Robert) (Entered: 04/15/2013)
58 Minute Entry for proceedings held before Magistrate Judge Thomas J. Shields. Final Pretrial Conference held on 4/15/2013. (Court Reporter None) (dmh) (Entered: 04/15/2013)
57 First MOTION to Strike Witnesses by Equal Employment Opportunity Commission.Motions referred to Thomas J. Shields. Responses due by 5/2/2013 (Canino, Robert) (Entered: 04/15/2013)
56 Proposed Voir Dire by Equal Employment Opportunity Commission. (Canino, Robert) (Entered: 04/15/2013)
55 Proposed Jury Instructions by Equal Employment Opportunity Commission. (Canino, Robert) (Entered: 04/15/2013)
54 TEXT ORDER. Personal appearance by all trial counsel is required for the final pretrial conference that is set for April 15, 2013 at 9:30 a.m., at the U.S. Courthouse, Davenport, Iowa, before U.S. Magistrate Judge Thomas J. Shields. Signed by Magistrate Judge Thomas J. Shields on 4/12/2013. (dam) (Entered: 04/12/2013)
Parties in this case have not consented to Video Recording in this case as part of the Cameras in Court Pilot Project. (dmh) (Entered: 04/10/2013)
53 Proposed Pretrial Order /Final Pretrial Conference Order by Equal Employment Opportunity Commission. (Canino, Robert) (Entered: 04/10/2013)
52 TEXT ORDER RESETTING FINAL PRETRIAL CONFERENCE. Due to a recent change on the Court's calendar, the Final Pretrial Conference in this case is reset from April 12, 2013 to April 15, 2013 at 9:30 AM at the Davenport U.S. Courthouse before Magistrate Judge Thomas J. Shields. Signed by Magistrate Judge Thomas J. Shields on 4/1/2013. (dam) (Entered: 04/01/2013)
51 STATUS REPORT on Settlement (Joint) by Equal Employment Opportunity Commission. (Canino, Robert) (Entered: 04/01/2013)
Set Deadlines: Status Report re settlement due by 4/1/2013. (rmj) (Entered: 02/26/2013)
50 ORDER. Parties to advise the Court by April 1, 2013 whether case will proceed to trial [see order for particulars]. Signed by Magistrate Judge Thomas J. Shields on 2/26/2013. (dam) (Entered: 02/26/2013)
49 STATUS REPORT REGARDING SETTLEMENT (JOINT) by Equal Employment Opportunity Commission. (Canino, Robert) (Entered: 02/22/2013)
48 TEXT ORDER CANCELING STATUS CONFERENCE. At the request of the parties, the status conference scheduled for February 13, 2013 is canceled. Signed by Magistrate Judge Thomas J. Shields on 2/11/2013. (dam) (Entered: 02/11/2013)
47 ORDER directing the parties to file a Status Report by 2/22/2013 to advise the Court as to whether they are interested in a court−sponsored settlement conference. Signed by Magistrate Judge Thomas J. Shields on 2/8/2013. (dam) (Entered: 02/08/2013)
46 ORDER scheduling trial to commence 4/23/13 in Davenport, referring the case to Magistrate Judge Shields to conduct a settlement conference. Signed by Senior Judge Charles R. Wolle on 2/7/2013. (alb) (Entered: 02/07/2013)
45 TEXT ORDER RESCHEDULING TRIAL. Due to adjustments to the court's calendar, the jury trial shall be rescheduled to begin on April 22, 2013, at 09:00 AM in the United States Courthouse, Davenport, Iowa, before Senior Judge Charles R. Wolle. The Final Pretrial Conference shall be held on April 12, 2013, at 11:00 AM in the United States Courthouse, Davenport, Iowa, before Magistrate Judge Thomas J. Shields. Signed by Magistrate Judge Thomas J. Shields on 1/23/2013. (jeb) (Entered: 01/23/2013)

Case: 3:11-cv-41 As of: 01/30/2016 03:07 PM CST 7 of 10

01/18/2013 12/18/2012
12/06/2012 11/20/2012 10/24/2012
10/23/2012 10/22/2012 10/22/2012 10/18/2012 09/18/2012 09/17/2012 09/13/2012 09/13/2012

44 TEXT ORDER. The Court has been advised that all parties in this case have agreed that there is no need for a monthly status conference in January. Therefore, the Court cancels the telephonic status conference set for 1/22/13. The next monthly status conference is set for February 13, 2013 at 11:00 a.m. Signed by Magistrate Judge Thomas J. Shields on 1/18/2013. (dam) (Entered: 01/18/2013)
43 TEXT ORDER CANCELING STATUS CONFERENCE. The Court has been advised that all parties in this case have agreed that there is no need for a monthly status conference in December. Therefore, the Court cancels the telephonic status conference set for December 19, 2012. The next monthly status conference is set for January 22, 2013 at 10:30 a.m. Signed by Magistrate Judge Thomas J. Shields on 12/18/2012. (dam) (Entered: 12/18/2012)
42 TEXT ORDER. The jury trial now scheduled to commence on March 25, 2013 is rescheduled to commence at 9:00 a.m. on April 1, 2013, or as soon thereafter as this case can be reached for trial at the U.S. Courthouse in Davenport, Iowa. Signed by Senior Judge Charles R. Wolle on 12/6/2012. (alb) (Entered: 12/06/2012)
41 TEXT ORDER. The Court has been advised that all parties in this case have agreed that there is no need for a monthly status conference in November. Therefore, the Court cancels the telephonic status conference set for November 21, 2012. The next monthly status conference is set for December 19, 2012 at 11:00 a.m. Signed by Magistrate Judge Thomas J. Shields on 11/20/2012. (dam) (Entered: 11/20/2012)
Set Hearings: Telephonic Status Conference set for 11/21/2012 11:00 AM before Magistrate Judge Thomas J. Shields. Telephonic Status Conference set for 12/19/2012 11:00 AM before Magistrate Judge Thomas J. Shields. Telephonic Status Conference set for 1/22/2013 11:00 AM before Magistrate Judge Thomas J. Shields. Telephonic Status Conference set for 2/13/2013 11:00 AM before Magistrate Judge Thomas J. Shields. (rmj, ) (Entered: 10/24/2012)
40 ORDER. The Court schedules monthly telephonic status conferences in this case [see order for particulars]. Signed by Magistrate Judge Thomas J. Shields on 10/23/2012. (dam) (Entered: 10/23/2012)
39 ORDER RE STATUS/SCHEDULING CONFERENCE. Final Pretrial Conference set for 3/13/2013 11:00 AM in United States Courthouse, Davenport, Iowa before Magistrate Judge Thomas J. Shields. Signed by Magistrate Judge Thomas J. Shields on 10/22/2012. (jeb) (Entered: 10/22/2012)
38 TEXT MINUTE ENTRY for proceedings held before Magistrate Judge Thomas J. Shields: Status/Settlement Conference held on 10/22/2012. Robert Canino appeared as counsel on behalf of plaintiff; David Scieszinski appeared on behalf of defendant. Final Pretrial Conference to be set for March 13, 2013. Court to schedule telephonic status conferences. Total Court Time: 1 hour. (jeb) (Entered: 10/22/2012)
37 NOTICE by Equal Employment Opportunity Commission Filing of Calculation of Prejudgment Interest on Court's Award of Damages (Attachments: # 1 Attachment, # 2 Attachment)(Canino, Robert) (Entered: 10/18/2012)
36 ORDER granting 21 Motion for Partial Summary Judgment. See order for particulars. Setting trial date on remaining issues at 9:00 a.m. on March 25(NOT ON MARCH 26), 2013, at the U.S. Courthouse in Davenport, Iowa. Signed by Senior Judge Charles R. Wolle on 9/18/2012. (alb) (Entered: 09/18/2012)
35 NOTICE/SUPPLEMENT by Equal Employment Opportunity Commission re 21 MOTION for Partial Summary Judgment Supplementation to Motion for Partial Summary Judgment re: Proposed Findings on Wage Claim Damages. (Canino, Robert) (Entered: 09/17/2012)
34 ORDER scheduling a status/settlement conference for 10/22/2012 at 10:00 AM at the Davenport U.S. Courthouse before Magistrate Judge Thomas J. Shields.Signed by Magistrate Judge Thomas J. Shields on 9/13/2012. (dam) (Entered: 09/13/2012)
33 ORDER canceling 9/21/12 hearing, setting a 9/17/12 deadline for plaintiff to file a supplement to its motion, postponing trial and final pretrial conference, referring case to Magistrate Judge Shields to conduct a status or settlement conference and to set a fptc date, rescheduling trial to 9:00 a.m. on 3/26/13 at the U.S. Courthouse in

Case: 3:11-cv-41 As of: 01/30/2016 03:07 PM CST 8 of 10

09/13/2012 09/12/2012 09/12/2012
09/06/2012
09/06/2012 09/06/2012 07/31/2012 07/11/2012 06/26/2012 06/25/2012 06/25/2012 06/25/2012 06/25/2012 06/25/2012 06/13/2012

Davenport, Iowa. Signed by Senior Judge Charles R. Wolle on 9/13/2012. (alb) (Entered: 09/13/2012)
32 Text Minute Entry for status conference held before Senior Judge Charles R. Wolle by telephone conference call on 9/13/2012. Discussion of whether is necessary the hearing scheduled for 9/21/12. Discussion of postponing trial date. Order to follow. (Court Reporter none) (alb) (Entered: 09/13/2012)
Set Hearing: Status Conference set for 9/13/2012 09:30 AM in Phone Hearing before Senior Judge Charles R. Wolle. (bp ) (Entered: 09/12/2012)
31 TEXT ORDER. A status conference will be held with counsel by telephone conference call the court will place to counsel of record at 9:30 a.m. on 9/13/12. The court will address whether defendant intends to resist the motion presently scheduled for hearing on 9/21/12. Any resistance was out of time as of 7/20/12. Signed by Senior Judge Charles R. Wolle on 9/12/2012. (alb) (Entered: 09/12/2012)
30 CAMERAS PILOT PROJECT: NOTIFICATION REGARDING VIDEO RECORDING − Parties should complete Form E, Party Response Regarding Video Recording, and return it to the Clerk's Office no later than 7 (seven) days before the scheduled hearing. Do NOT file Form E in CM/ECF. E−mail Form E to IASD_casemanagers@iasd.uscourts.gov. Notification and Party Response Forms Regarding Video Recording sent to Parties. (bp ) (Entered: 09/06/2012)
Set Hearing: Motion Hearing set for 9/21/2012 01:00 PM in Phone Hearing before Senior Judge Charles R. Wolle. (bp ) (Entered: 09/06/2012)
29 TEXT ORDER. A summary judgment hearing will be held by telephone conference call placed by the court to counsel of record at 1:00 p.m. on September 21, 2012. Signed by Senior Judge Charles R. Wolle on 9/6/2012. (alb) (Entered: 09/06/2012)
28 NOTICE by Equal Employment Opportunity Commission re 21 MOTION for Partial Summary Judgment EEOC's Supplementation to Motion for Partial Summary Judgment (Attachments: # 1 Attachment)(Canino, Robert) (Entered: 07/31/2012)
27 ORDER granting 20 Plaintiff Equal Employment Opportunity Commission's Motion to Compel Discovery. Signed by Magistrate Judge Thomas J. Shields on 7/11/2012. (jeb) (Entered: 07/11/2012)
26 TEXT ORDER granting 19 Motion for Leave to Appear Pro Hac Vice for Attorney Devika Seth. Signed by Clerk, Marjorie E. Krahn on 6/26/2012. (rmj) (Entered: 06/26/2012)
25 APPENDIX to MSJ 21 Statement of Undisputed Material Facts (End) by Equal Employment Opportunity Commission. Responses due by 7/19/2012 (Attachments: # 1 Appendix Part 10)(Canino, Robert) Modified on 6/26/2012 to correct filing (rmj). (Entered: 06/25/2012)
24 APPENDIX to MSJ 21 Statement of Undisputed Material Facts by Equal Employment Opportunity Commission. (Canino, Robert) Modified on 6/26/2012 to correct pleading. (rmj). (Entered: 06/25/2012)
23 APPENDIX to MSJ 21 Statement of Undisputed Material Facts by Equal Employment Opportunity Commission. (Canino, Robert) Modified on 6/26/2012 to correct document. (rmj). Modified on 6/29/2012 (rmj). (Entered: 06/25/2012)
22 APPENDIX to MSJ 21 State of Undisputed Material Facts by Equal Employment Opportunity Commission. (rmj). [Corrected Filing] (Entered: 06/25/2012)
21 MOTION for Partial Summary Judgment by Equal Employment Opportunity Commission. Responses due by 7/19/2012 (Attachments: # 1 Motion for Leave, # 2 Brief in Support, # 3 Statement of Undisputed Facts)(Canino, Robert) Modified on 6/29/2012 (rmj). (Entered: 06/25/2012)
20 MOTION to Compel Discovery and Incorporated Brief by Equal Employment Opportunity Commission.Motions referred to Thomas J. Shields. Responses due by 7/2/2012 (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Canino, Robert) (Entered: 06/13/2012)

Case: 3:11-cv-41 As of: 01/30/2016 03:07 PM CST 9 of 10

06/08/2012 04/23/2012 10/13/2011 10/06/2011 10/06/2011 09/20/2011
09/20/2011 09/20/2011
09/16/2011 09/16/2011
09/12/2011 09/06/2011 07/06/2011
06/09/2011

19 MOTION for Leave to Appear Pro Hac Vice by Equal Employment Opportunity Commission.Motions referred to Thomas J. Shields. (Attachments: # 1 Text of Proposed Order)(Canino, Robert) (Entered: 06/08/2012)
18 AMENDED DOCUMENT by Equal Employment Opportunity Commission. Amendment to 7 Corporate Disclosure/Statement of Interest. (Canino, Robert) (Entered: 04/23/2012)
17 NOTICE by Equal Employment Opportunity Commission of Joint Report on Agreements and Information for (ESI) Electronic−Stored Information (Canino, Robert) (Entered: 10/13/2011)
16 TEXT ORDER granting 15 Unopposed Motion for Extension of Time to File Joint Report on Electronically−Stored Information. As requested, the parties shall have until October 14, 2011, to file their Joint Report on ESI. Signed by Magistrate Judge Thomas J. Shields on 10/6/2011. (jeb) (Entered: 10/06/2011)
15 MOTION for Extension of Time to File JOINT Report on Electronically−Stored Information by Equal Employment Opportunity Commission.Motions referred to Thomas J. Shields. Responses due by 10/24/2011 (Attachments: # 1 Proposed Order)(Canino, Robert) (Entered: 10/06/2011)
Set Scheduling Order Deadlines: Add Parties due by 10/23/2011. Dispositive Motion Deadline due by 6/23/2012. Defendant's Expert Witness due by 2/21/2012. Plaintiff's Expert Witness due by 1/23/2012. Plaintiff's Rebuttal Witness Deadline due by 3/23/2012. Trial Ready deadline due by 10/23/2012. Amended Pleadings due by 11/23/2011. Discovery due by 5/23/2012. (rmj) (Entered: 09/20/2011)
Set Hearing: Final Pretrial Conference set for 10/22/2012 09:00 AM in Davenport − Room 140 − 1st Floor before Magistrate Judge Thomas J. Shields. Jury Trial set for 11/5/2012 09:00 AM in Davenport − Room 120 − 1st Floor before Senior Judge Charles R. Wolle. (bp ) (Entered: 09/20/2011)
14 TEXT ORDER. A jury trial will be held commencing at 9:00 a.m. on November 5, 2012, or as soon thereafter as this case can be reached for trial at the U.S. Courthouse in Davenport, Iowa. Magistrate Judge Shields will conduct a final pretrial conference at 11:00 a.m. on October 22, 2012 at the U.S. Courthouse in Davenport, Iowa. Signed by Senior Judge Charles R. Wolle on 9/20/2011. (alb) (Entered: 09/20/2011)
13 ORDER directing parties to file a joint status report by 10/7/2011 regarding electronically stored information. Signed by Magistrate Judge Thomas J. Shields on 9/16/2011. (dam) (Entered: 09/16/2011)
12 ORDER approving and adopting 11 SCHEDULING ORDER AND DISCOVERY PLAN: Add Parties due by 10/23/2011. Amended Pleadings due by 11/23/2011. Plaintiffs Expert Witness due by 1/23/2012. Defendants Expert Witness due by 2/21/2012. Plaintiffs Rebuttal Witness Deadline due by 3/23/2012. Discovery due by 5/23/2012. Dispositive Motion Deadline due by 6/23/2012. Trial Ready deadline due by 10/23/2012. Signed by Magistrate Judge Thomas J. Shields on 9/15/2011. (dam) (Entered: 09/16/2011)
11 PROPOSED SCHEDULING ORDER AND DISCOVERY PLAN. (Canino, Robert) (Entered: 09/12/2011)
10 ORDER GIVING NOTICE OF DISMISSAL Rule 16 Dismissal deadline set for 9/23/2011. Signed by R Johnson for Clerk, Marjorie Krahn on 9/6/2011. (Attachments: # 1 Local Rule 41.1, # 2 Rule 16 Worksheet) (rmj) (Entered: 09/06/2011)
9 TEXT ORDER denying 8 Motion to Transfer Case. The court denies the plaintiff's resisted motion for transfer of this case to Senior U.S. District Judge Harold D. Vietor. Because no consolidation with the other case is requested, the undersigned senior U.S. District Judge will retain this case on his docket, subject to reconsideration should circumstances later warrant a change of the random assignment of this case. Signed by Senior Judge Charles R. Wolle on 7/6/2011. (alb) (Entered: 07/06/2011)
8 MOTION to Transfer Case out of Current Court Assignment to Judge Vietor Based on Closely−Related and Common Facts, Parties and Legal Issues by Equal Employment Opportunity Commission. Responses due by 6/27/2011 (Canino, Robert) (Entered:

Case: 3:11-cv-41 As of: 01/30/2016 03:07 PM CST 10 of 10

06/01/2011 05/16/2011 04/07/2011 04/06/2011 04/06/2011 04/06/2011 04/06/2011

06/09/2011)
7 Corporate Disclosure/Statement of Interest by Hill Country Farms, Inc.. (Scieszinski, David) (Entered: 06/01/2011)
6 ANSWER to Complaint by Hill Country Farms, Inc..(Scieszinski, David) (Entered: 05/16/2011)
5 TEXT ORDER granting 4 Motion for Leave to Appear Pro Hac Vice for attorney, Robert A. Canino. Signed by Clerk Marjorie E. Krahn on 04/07/11. (bp ) (Entered: 04/07/2011)
4 MOTION for Leave to Appear Pro Hac Vice by Equal Employment Opportunity Commission.Motions referred to Thomas J. Shields. (Attachments: # 1 Text of Proposed Order)(Canino, Robert) (Entered: 04/06/2011)
3 Corporate Disclosure/Statement of Interest by Equal Employment Opportunity Commission. (Canino, Robert) (Entered: 04/06/2011)
2 Summons Issued as to Equal Employment Opportunity Commission. (Canino, Robert) (Main Document 2 replaced with signed and sealed Summons on 4/6/2011). (dmh) (Entered: 04/06/2011)
1 COMPLAINT against Hill Country Farms, Inc., filed by Equal Employment Opportunity Commission. Notice of Dismissal for lack of Service deadline set for 8/4/2011. Rule 16 Notice of Dismissal set for 8/4/2011. (Attachments: # 1 Civil Cover Sheet)(Canino, Robert) (Entered: 04/06/2011)

 
 Case: 3:12-cv-4737 As of: 08/12/2016 01:48 PM CDT 1 of 6
U.S. District Court Northern District of Texas (Dallas) CIVIL DOCKET FOR CASE #: 3:12−cv−04737−P

CLOSED

United States of America v. Henry et al Assigned to: Judge Jorge A Solis Related Case: 4:11−mc−00015−A Cause: Application for a Writ of Garnishment
Plaintiff United States of America

Date Filed: 11/20/2012 Date Terminated: 02/19/2014 Jury Demand: None Nature of Suit: 890 Other Statutes: Other Statutory Actions Jurisdiction: U.S. Government Plaintiff
represented by Megan J Fahey−DOJ US Attorney's Office 801 Cherry St Unit 4 Suite 1700 Fort Worth, TX 76102−6882 817/252−5200 Fax: 817/252−5459 Email: megan.fahey@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

V. Defendant Kenneth J Henry individually and doing business as Henry's Turkey Service
Defendant Hill Country Farms, Inc. doing business as Henry's Turkey Service

represented by Kenneth J Henry C/O Beam &McKethan PLLC 299 S. Columbia Stephenville, TX 76401 PRO SE

V.
Garnishee
First National Bank TERMINATED: 02/19/2014

represented by Carrie Roseanne Cappel Harris Finley &Bogle PC 777 Main St Suite 1800 Fort Worth, TX 76102 817/870−8700 Fax: 817/332−6121 Email: ccappel@hfblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing
Randall C Johnson Harris Finley &Bogle 777 Main St Suite 3600 Fort Worth, TX 76102−5341 817/870−8700

Case: 3:12-cv-4737 As of: 08/12/2016 01:48 PM CDT 2 of 6

Fax: 817/332−6121 FAX Email: randalljohnson@hfblaw.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Roland K Johnson Harris Finley &Bogle 777 Main St Suite 1800 Fort Worth, TX 76102−5341 817/870−8700 Fax: 817/332−6121 Email: rolandjohnson@hfblaw.com ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Garnishee
Mills County State Bank TERMINATED: 02/19/2014

Garnishee
Rusty Roberson TERMINATED: 02/19/2014

Garnishee
Southwestern Farms &Cattle Co, Inc TERMINATED: 02/19/2014

Garnishee McKethan Espinoza PLLC

represented by Bethany J Espinoza McKethan Espinoza PLLC 299 South Columbia Stephenville, TX 76401 254−965−5855 Fax: 254−965−3316 Email: bespinoza@stephenvillelawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Garnishee Johnson &Johnson Egg Farms Inc

represented by Mark David Threadgill Threadgill Law Firm, PLLC 5100 Andrews Hwy Midland, TX 79703 432−653−1396 Fax: 866−266−1398 Email: mark@threadgilllaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

Garnishee
Frieda Johnson President of Johnson and Johnson Egg Farms Inc

represented by Mark David Threadgill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Not Admitted

V.

Case: 3:12-cv-4737 As of: 08/12/2016 01:48 PM CDT 3 of 6

Movant
US Equal Employment Opportunity Commission

represented by Robert A Canino , Jr Equal Employment Opportunity Commission Dallas District Office 207 S Houston St 3rd Floor Dallas, TX 75202 214/253−2750 Fax: 214/253−2749 Email: robert.canino@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED Bar Status: Admitted/In Good Standing

Date Filed 11/20/2012
11/20/2012 11/20/2012 11/20/2012 11/20/2012 11/30/2012 04/16/2013 04/16/2013 04/16/2013 04/16/2013 04/16/2013 04/16/2013 04/16/2013 04/16/2013
05/20/2013

# Docket Text
1 New Case Notes: A filing fee is not due for this case. File to Judge Solis. Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge (Judge Toliver). Clerk to provide copy to plaintiff if not received electronically. (ykp) (Entered: 11/20/2012)
2 APPLICATION for Writ of Garnishment filed by United States of America. (ykp) (Entered: 11/20/2012)
3 NOTICE of Related Case filed by United States of America. (ykp) (Entered: 11/20/2012)
4 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by United States of America. (ykp) (Entered: 11/20/2012)
5 MOTION to Seal Case filed by United States of America. (ykp) (Entered: 11/20/2012)
6 ORDER granting 5 Motion Motion to Seal Case. (Ordered by Judge Jorge A Solis on 11/30/2012) (chmb) (Entered: 12/03/2012)
7 ORDER for Issuance of Writ of Garnishment as to First National Bank. (Ordered by Judge Jorge A Solis on 4/16/2013) (ctf) (Entered: 04/16/2013)
8 ORDER for Issuance of Writ of Garnishment as to Mills County State Bank. (Ordered by Judge Jorge A Solis on 4/16/2013) (ctf) (Entered: 04/16/2013)
9 ORDER for Issuance of Writ of Garnishment as to Rusty Roberson. (Ordered by Judge Jorge A Solis on 4/16/2013) (ctf) (Entered: 04/16/2013)
10 ORDER for Issuance of Writ of Garnishment as to Southwestern Farms &Cattle Co. Inc. (Ordered by Judge Jorge A Solis on 4/16/2013) (ctf) (Entered: 04/16/2013)
11 Writ of Garnishment Issued as to First National Bank. With Clerk's Notice of Post−Judgment and Claim for Exemptions Form. (ctf) (Entered: 04/16/2013)
12 Writ of Garnishment Issued as to Mills County State Bank. With Clerk's Notice of Post−Judgment and Claim for Exemptions Form. (ctf) (Entered: 04/16/2013)
13 Writ of Garnishment Issued as to Rusty Roberson. With Clerk's Notice of Post−Judgment and Claim for Exemptions Form. (ctf) (Entered: 04/16/2013)
14 Writ of Garnishment Issued as to Southwestern Farms &Cattle Co. Inc. With Clerk's Notice of Post−Judgment and Claim for Exemptions Form. (ctf) (Entered: 04/16/2013)
15 ANSWER to 2 Application for Writ of Garnishment filed by First National Bank. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas should seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership. (ndt) (Entered: 05/21/2013)

Case: 3:12-cv-4737 As of: 08/12/2016 01:48 PM CDT 4 of 6

05/31/2013
06/28/2013
07/23/2013 07/24/2013 07/25/2013 07/26/2013
08/20/2013 08/29/2013
08/29/2013 09/09/2013 09/18/2013 10/23/2013 10/23/2013 10/24/2013 10/24/2013 01/13/2014 01/22/2014 02/19/2014 02/19/2014

16 ANSWER to 2 Application for Writ of Garnishment filed by Mills County State Bank. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas should seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership. (skt) (Entered: 05/31/2013)
17 ANSWER to 2 Application for Writ of Garnishment filed by Rusty Roberson. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas should seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership. (axm) (Entered: 06/28/2013)
18 MOTION to Unseal Case filed by United States of America. (cea) (Entered: 07/23/2013)
19 ORDER granting 18 Motion to Unseal Case. (Ordered by Judge Jorge A Solis on 7/24/2013) (cea) (Entered: 07/25/2013)
***Clerk's Notice of delivery: (see NEF for details) Docket No:19. Thu Jul 25 07:27:18 CDT 2013 (crt) (Entered: 07/25/2013)
20 ANSWER to 2 Application for Writ of Garnishment filed by Southwestern Farms &Cattle Co, Inc. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas should seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership. (cea) (Entered: 07/26/2013)
21 Claim for Exemptions, Request for Hearing, and/or Request for Transfer by Kenneth J Henry. (twd) (Entered: 08/20/2013)
22 CERTIFICATE OF SERVICE by United States of America re 8 Order, 10 Order, 7 Order, 13 Writ Issued, 2 Application for Writ of Garnishment, 12 Writ Issued, 9 Order, 4 Cert. Of Interested Persons/Disclosure Statement, 14 Writ Issued, 11 Writ Issued, 3 Notice (Other) (Fahey−DOJ, Megan) (Entered: 08/29/2013)
23 Appendix in Support filed by United States of America re 22 Certificate of Service, (Attachments: # 1 Exhibit(s) A−I) (Fahey−DOJ, Megan) (Entered: 08/29/2013)
24 RESPONSE filed by United States of America re: 21 Claim (Fahey−DOJ, Megan) (Entered: 09/09/2013)
25 MOTION for Possession and Inventory of Defendants' Safe Deposit Box filed by United States of America (Fahey−DOJ, Megan) (Entered: 09/18/2013)
26 ELECTRONIC NOTICE: Garnishment Hearing set for 12/10/2013 9:00 AM in US Courthouse, Courtroom 1632, 1100 Commerce St., Dallas, TX 75242−1310 before Judge Jorge A Solis. (chmb) (Entered: 10/23/2013)
27 ORDER granting 25 Motion for Possession and Inventory of Defendants' Safe Deposit Box. (Ordered by Judge Jorge A Solis on 10/23/2013) (cea) (Entered: 10/24/2013)
***Clerk's Notice of delivery: (see NEF for details) Docket No:27. Thu Oct 24 06:44:33 CDT 2013 (crt) (Entered: 10/24/2013)
***Clerk's Notice of delivery: (see NEF for details) Docket No:26. Thu Oct 24 06:54:57 CDT 2013 (crt) (Entered: 10/24/2013)
28 Process Receipt and Return for Possession of Safe Deposit Box served on First National Bank on 11/15/2013. (twd) (Entered: 01/13/2014)
29 MOTION for Final Order of Garnishment filed by United States of America (Fahey−DOJ, Megan) (Entered: 01/22/2014)
30 FINAL ORDER OF GARNISHMENT. (Ordered by Judge Jorge A Solis on 2/19/2014) (axm) (Entered: 02/24/2014)
***Civil Case Terminated per 30 Final Order of Garnishment. (axm) (Entered: 02/24/2014)

Case: 3:12-cv-4737 As of: 08/12/2016 01:48 PM CDT 5 of 6

10/03/2014
03/11/2015 03/12/2015 05/12/2015
05/27/2015
06/23/2015 06/23/2015 08/12/2015 08/14/2015 08/26/2015 08/26/2015 08/27/2015
08/27/2015 09/01/2015

31 United States' Ex Parte Supplemental Application for Writs of Garnishment filed by United States of America (Attachments: # 1 Proposed Order for Issuance of Writs of Garnishment, # 2 Clerk's Notice of Exemption/Hearing Request Form, # 3 Writ of Garnishment to Frieda Johnson, # 4 Writ of Garnishment to Johnson &Johnson Egg Farm, Inc., # 5 Writ of Garnishment to McKethan Espinoza, PLLC) (Fahey−DOJ, Megan) (Entered: 10/03/2014)
32 Ex Parte Order for Issuance of Writs of Garnishment. (Ordered by Chief Judge Jorge A Solis on 3/11/2015) (jrr) (Entered: 03/12/2015)
33 Writs of Garnishment issued as to Frieda Johnson, Johnson &Johnson Egg Farm Inc, McKethan Espinoza PLLC with Clerk's Notice of Post Judgment Garnishment to Defendant. (Attachments: # 1 Additional Page(s) Notice) (jrr) (Entered: 03/12/2015)
34 ANSWER to 31 Supplemental Application for Writs of Garnishment filed by McKethan Espinoza PLLC. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (jrr) Modified linkage on 9/2/2015 (jrr). (Entered: 05/13/2015)
35 ANSWER to 31 Supplemental Application for Writs of Garnishment filed by Frieda Johnson and Johnson &Johnson Egg Farms Inc. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms and Instructions found at www.txnd.uscourts.gov, or by clicking here: Attorney Information − Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Threadgill, Mark) Filer and docket text modified on 9/2/2015 (twd). (Entered: 05/27/2015)
36 CERTIFICATE OF SERVICE by United States of America re 33 Sealed and/or Ex Parte Document, 32 Sealed and/or Ex Parte Order, 31 Sealed and/or Ex Parte Document, (Fahey−DOJ, Megan) (Entered: 06/23/2015)
37 Appendix in Support filed by United States of America re 36 Certificate of Service (Attachments: # 1 Exhibit(s) A−D) (Fahey−DOJ, Megan) (Entered: 06/23/2015)
38 MOTION to Quash Writ of Garnishment Issued to Southwestern Farms &Cattle Co. filed by United States of America (Fahey−DOJ, Megan) (Entered: 08/12/2015)
39 ELECTRONIC ORDER granting 38 United States' Motion to Quash Writ of Garnishment Issued to Southwestern Farms &Cattle Co. The Court grants the motion and ORDERS that the Writ of Garnishment issued to Southwestern Farms and Cattle Co. in this case is quashed. (Ordered by Chief Judge Jorge A Solis on 8/14/2015) (chmb) (Entered: 08/14/2015)
40 MOTION Emergency Motion for Turnover Order filed by United States of America (Fahey−DOJ, Megan) (Entered: 08/26/2015)
41 Appendix in Support filed by United States of America re 40 MOTION Emergency Motion for Turnover Order (Attachments: # 1 Exhibit(s) A−F, # 2 Exhibit(s) G−H, # 3 Exhibit(s) I−L, # 4 Exhibit(s) M−O) (Fahey−DOJ, Megan) (Entered: 08/26/2015)
42 ELECTRONIC ORDER: The Court has under consideration 40 United States of America's Emergency Motion for Turnover Order. The Court believes that it is appropriate to expedite briefing on the motion. It is ORDERED that any Response is due on or before September 4, 2015, and any Reply to that response is due on or before September 8, 2015. (Ordered by Chief Judge Jorge A Solis on 8/27/2015) (chmb) (Entered: 08/27/2015)
***Clerk's Notice of delivery: (see NEF for details) Docket No:42. Thu Aug 27 09:52:52 CDT 2015 (crt) (Entered: 08/27/2015)
43 MOTION for Leave to File Amicus Curiae Brief filed by US Equal Employment Opportunity Commission with Brief/Memorandum in Support. (Canino, Robert)

Case: 3:12-cv-4737 As of: 08/12/2016 01:48 PM CDT 6 of 6

09/02/2015
09/02/2015 09/03/2015 09/09/2015 09/09/2015
09/10/2015 09/11/2015
09/11/2015

(Entered: 09/01/2015)
44 ELECTRONIC ORDER: The Court has under consideration 43 Motion for Leave of Court to File Amicus Curiae Brief. The Court believes that it is appropriate to expedite briefing on the motion. It is ORDERED that any Response is due on or before September 8, 2015, and any Reply to that response is due on or before September 10, 2015. To facilitate a ruling, movant shall file its proposed amicus curiae brief as a supplemental exhibit to its motion (doc. 43 ) on or before September 3, 2015. (Ordered by Chief Judge Jorge A Solis on 9/2/2015) (chmb) (Entered: 09/02/2015)
***Clerk's Notice of delivery: (see NEF for details) Docket No:44. Wed Sep 2 16:44:26 CDT 2015 (crt) (Entered: 09/02/2015)
45 Supplemental Document by US Equal Employment Opportunity Commission as to 43 MOTION for Leave to File Amicus Curiae Brief /AMICUS CURIAE BRIEF IN SUPPORT OF. (Canino, Robert) (Entered: 09/03/2015)
46 NOTICE of No Response Filed re: 42 Order, 45 Supplemental Document, 44 Order, 40 MOTION Emergency Motion for Turnover Order filed by United States of America (Fahey−DOJ, Megan) (Entered: 09/09/2015)
47 ELECTRONIC ORDER granting 43 U.S. Equal Employment Opportunity Commission Motion for Leave of Court to File Amicus Curiae Brief. The Court hereby grants that entity leave to file 45 Amicus Curiae Brief. The Court may consider that filing when ruling on 40 United States of America's Emergency Motion for Turnover Order. Because the brief has already been filed in this case, no further action is required to have the brief considered by the Court. (Ordered by Chief Judge Jorge A Solis on 9/9/2015) (chmb) (Entered: 09/09/2015)
48 NOTICE of Intent not to File Reply and of Correction re: 45 Supplemental Document, 44 Order,, filed by US Equal Employment Opportunity Commission (Attachments: # 1 Exhibit(s) A) (Canino, Robert) (Entered: 09/10/2015)
49 ORDER: Now before the Court is the United States of America's Emergency Motion for Turnover Order, filed on 8/26/2015. Doc. 40 . The Court ordered expedited briefing on this motion, Doc. 44 , but no response was filed. On 9/3/2015, with leave of the Court, the United States Equal Employment Opportunity Commission filed its amicus curiae brief in support of the United States' Emergency Motion for Turnover Order. Doc. 45 . After reviewing the parties' briefing, the evidence, and the applicable law, the Court GRANTS the United States' Emergency Motion for Turnover Order. (Ordered by Chief Judge Jorge A Solis on 9/11/2015) (bdb) (Entered: 09/11/2015)
***Clerk's Notice of delivery: (see NEF for details) Docket No:49. Fri Sep 11 15:41:28 CDT 2015 (crt) (Entered: 09/11/2015)