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IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

Select Medical Rehabilitation ) 

Services, Inc., a Delaware corporation, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) No. 12-cv-4662 

 ) 

Morris Healthcare & Rehabilitation ) 

Services, Inc., an Illinois corporation, and ) 

Morris Healthcare & Rehabilitation ) 

Center, LLC, an Illinois limited ) 

liability company. ) 

 ) 

 Defendants. ) 

PLAINTIFF’S MOTION FOR ENTRY OF AGREED CONSENT JUDGMENT 

AND RULE 69 MOTION FOR DISCOVERY IN AID OF EXECUTION 

AND COLLECTION OF THE CONSENT JUDGMENT 

 Plaintiff Select Medical Rehabilitation Services, Inc. (referred to herein as “Select 

Medical”), through counsel Segal McCambridge Singer & Mahoney, Ltd., states as follows for 

its Motion For Entry of an Agreed Consent Judgment and Federal Rule 69 Motion for Discovery 

In Aid of Execution and Collection of the Consent Judgment against Defendant Morris 

Healthcare & Rehabilitation Center, LLC (referred to herein as “Morris Healthcare Center”): 

INTRODUCTION 

Plaintiff filed a Complaint seeking recovery for breach of contract when Defendant 

Morris Healthcare Center failed to compensate Plaintiff for therapy services rendered pursuant to 

a written contract between the parties. Defendant Morris Healthcare Center has agreed to the 

entry of a consent judgment, but indicates that it is unable to pay the judgment. Accordingly, 

Plaintiff seeks entry of the consent judgment, and leave of court to pursue discovery in aid of the 
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execution and collection of that judgment. 

ARGUMENT 

I. DEFENDANT AGREES TO ENTRY OF A CONSENT JUDGMENT. 

Defendant Morris Healthcare Center has consented to the entry of a judgment against it in 

the amount of $473,156.26. A copy of the consent judgment agreed to by the parties is attached 

hereto as “Exhibit A.” A copy of the written correspondence confirming Defendant’s consent to 

this judgment is attached as “Exhibit B.” Given that the parties are in agreement that a consent 

judgment should be entered, both Plaintiff and Defendant request that this Court enter the order 

attached as Exhibit A. 

II. FEDERAL RULE 69(A) AUTHORIZES PLAINTIFF TO CONDUCT DISCOVERY IN 

ORDER TO AID ITS COLLECTION AND ENFORCEMENT OF THE CONSENT 

JUDGMENT. 

Defendant Morris Healthcare Center has indicated that it is unable to satisfy the consent 

judgment once entered. Accordingly, in order to aid its execution and collection of the consent 

judgment, Plaintiff is requesting leave of court to conduct discovery into this narrow issue. 

The federal rules of civil procedure provide as follows: 

(2) Obtaining Discovery. In aid of the judgment or execution, the 

judgment creditor or a successor in interest whose interest appears 

of record may obtain discovery from any person--including the 

judgment debtor--as provided in these rules or by the procedure of 

the state where the court is located. 

FED. R. CIV. PROC. 69(a)(2). Federal law authorizes a judgment creditor, such as Plaintiff, here, 

to pursue discovery in order to aid its ability to enforce and collect on a judgment. In Evans v. 

Chicago Football Franchise Limited Partnership, 127 F.R.D. 492, 493 (N.D. Ill. 1989), the 

Northern District confirmed that the federal rules allow for a party to conduct discovery in aid of 

its efforts to enforce or collect a judgment, and that such discovery can be conducted following 
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the entry of the judgment. The court relied on Rule 69(a) to support its finding that “[i]t is clear 

from the plain language of the rule that plaintiff may indeed use the federal discovery rules” in 

order to discover, post-judgment, information concerning defendant’s assets, or to otherwise 

enforce or collect on that judgment. Id. The Northern District highlighted the fact that the 

federal rules authorize a judgment creditor to use the federal discovery rules, or to proceed in a 

manner that is authorized by state law and practice, and the court rejected the debtor’s argument 

that it was too late to proceed with such discovery following the entry of judgment. Id. Finally, 

the court noted that a judgment creditor can obtain discovery from a judgment debtor or even 

third parties without the need to file a separate lawsuit or proceeding. Id. 

The law further provides that, under Rule 69(a), “[t]he presumption is in favor of full 

discovery of any matters arguably related to the creditor's efforts to trace the debtor's assets and 

otherwise to enforce its judgment. . . .” ClearOne Communications, Inc. v. Chiang, 276 F.R.D. 

402, 404 (D. Mass. 2011) (citation and internal quotations omitted). Under the prevailing legal 

standard, a judgment creditor “is entitle to full discovery” of a debtor’s “current financial 

situation, including any assets, income or jointly held property that bear on his ability to satisfy 

the pending judgment against him.” Id. See also Caisson Corp. v. County West Bldg. Corp., 62 

F.R.D. 331 (E.D. Pa. 1974) (explaining that under Rule 69, “discovery may be had of the 

judgment debtor or third persons without separate suit and, if discovery is pursued under the 

federal rules, as in this case, all the discovery devices of the Rules may be used as in the progress 

of the action. All agree that the judgment creditor must be given the freedom to make a broad 

inquiry to discover hidden or concealed assets of the judgment debtor.”)

 Importantly, federal law recognizes that it is not appropriate to obtain discovery relating 

to a defendant’s assets or ability to satisfy a judgment until after a judgment is entered. As one 
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court has explained: 

Ordinarily, Rule 26 will not permit the discovery of facts 

concerning a defendant's financial status, or ability to satisfy a 

judgment, since such matters are not relevant, and cannot lead to 

the discovery of admissible evidence. However, having recovered 

judgment, [the judgment creditor] may execute on its judgment and 

inquire as to the escrowed funds in proceedings in aid of execution 

pursuant to Rule 69. The judgment creditor is permitted discovery 

in order that he may find out what assets exist or have been 

fraudulently transferred. In addition, he may use the discovery 

mechanisms provided under state practice. 

Ranney-Brown Distributors, Inc. v. E. T. Barwick Industries, Inc., 75 F.R.D. 3, 4 (D.C. Ohio 

1977). 

 Here, given Defendant’s statement that it is unable to pay the consent judgment, once 

entered, Plaintiff needs to pursue other avenues for collecting this substantial judgment. One of 

the first discovery tasks which Plaintiff requires is the deposition of Kim Westerkamp, one of the 

owners of Defendant Morris Healthcare Center. In light of Ms. Westerkamp’s prior refusal to 

appear for her continued deposition, Plaintiff filed a Motion to Compel and for Sanctions on 

November 15, 2013. (Doc. No. 46). The parties appeared in court for a status hearing with 

respect to Plaintiff’s motion on November 22, 2103 (Doc. No. 48) as well as on January 3, 2014 

(Doc. No. 50). While the parties have since reached in agreement concerning the consent 

judgment, Plaintiff still requires Ms. Westerkamp to appear for deposition in order to aid its 

collection of the judgment. 

Plaintiff needs to pursue discovery in order to investigate whether there is any basis for 

piercing the corporate veil against Defendant’s principals, whether a successor corporation may 

be liable for the debt at issue, whether Defendant may have transferred any of its assets, and 

other potential avenues of collection and enforcement. Plaintiff’s request is clearly authorized by 

the law, and Plaintiff would suffer substantial prejudice without the opportunity to conduct 
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discovery. Moreover, because the law precluded Plaintiff from inquiring into such matters prior 

to judgment, Plaintiff’s current request is timely and proper. 

CONCLUSION 

WHEREFORE, Plaintiff Select Medical Rehabilitation Services, Inc. requests that this 

Court enter an order finding that: 

1. Plaintiff, Select Medical shall be, and hereby is, awarded judgment from and 

against Defendant Morris Healthcare & Rehabilitation Center, LLC, in the 

amount of $473,156.26. 

2. The judgment shall bear interest from the date of this judgment until it is paid at a 

rate equal to fifteen percent (15%) per annum, as provided by the agreement that 

is the subject of Plaintiff’s First Amended Complaint. 

3. The February 11, 2014 trial date is stricken. 

4. Plaintiff’s Rule 69 Motion For Discovery In Aid of Execution and Collection Of 

its Judgment Is Granted, and Plaintiff is granted leave of court to pursue any and 

all discovery that is allowed under the law. 

5. Any and all judgment debtors will be subject to liability for any and all attorneys’ 

fees and costs incurred by Plaintiff during discovery, as provided by the 

agreement that is the subject of Plaintiff’s First Amended Complaint. 

6. Nothing in the Court’s order shall prevent Plaintiff from amending the consent 

judgment as may be necessary to include any additional judgment debtors who 

may be identified during the course of discovery, nor shall the Court’s order 

prevent Plaintiff from amending its complaint as may be necessary to add new 

parties and/or new causes of action that may be identified during discovery and as 

may be necessary to enforce and/or collect its judgment. 

7. Plaintiff is entitled to any other just relief. 

Respectfully submitted, 

Segal McCambridge Singer & Mahoney, Ltd. 

 By: /s/ Chad J. Layton 

 Attorneys for Plaintiff 

 Select Medical Rehabilitation Services, Inc. 
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Robert E. O’Malley, Esq. (ARDC No. 6193458) 

Chad J. Layton, Esq. (ARDC No. 6243339) 

Segal McCambridge Singer & Mahoney, Ltd. 

233 S. Wacker Dr., Suite 5500 

Chicago, Illinois 60606 

Phone: (312) 645-7800 

Fax: (312) 645-7711