UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

BOARD OF TRUSTEES OF 

THE MICHIGAN LABORERS’ 

PENSION FUND, 

 Plaintiff, CIVIL ACTION NO. 14-cv-14142 

 v. DISTRICT JUDGE MATTHEW F. LEITMAN 

 

RITE WAY FENCE, INC., MAGISTRATE JUDGE MONA K. MAJZOUB 

MARX CONTRACTING, INC., 

H & H RENTALS L.L.C., and 

EUGENE M. ZAPCZYNSKI, 

 Defendants. 

______________________________/ 

OPINION AND ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL [40], 

DENYING AS MOOT EUGENE R. ZAPCZYNSKI’S MOTION TO MODIFY 

SUBPOENA [47], AND DENYING AS MOOT DEFENDANTS’ MOTION TO ENLARGE 

TIME [48] 

 This matter comes before the Court on Plaintiff Board of Trustees of the Michigan 

Laborers’ Pension Fund’s Motion to Compel Documents Subpoenaed from Non-Party Dilger & 

Semaan, P.C. (Docket no. 40.) Plaintiff filed a Statement of Resolved and Unresolved Issues 

with regard to this Motion, to which Dilger & Semaan, P.C. objected, and Plaintiff replied to 

Dilger & Semaan, P.C.’s Objection. (Docket nos. 50, 57, and 58.) Also before the Court are 

non-party Eugene R. Zapczynski’s Motion to Modify Subpoena to Testify at a Deposition and 

Production of Documents for an Enlargement of Time and Protective Order (docket no. 47) and 

Defendants Rite Way Fence, Inc., Marx Contracting, Inc., H & H Rentals L.L.C., and Eugene M. 

Zapczynski’s Motion to Enlarge Time to Respond to Plaintiff’s Second Request for Production 

of Documents (docket no. 48). Response and reply briefs have been filed with regard to each of 

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these Motions. (Docket nos. 49, 54, 55, and 59.) The Motions have been referred to the 

undersigned for consideration. (Docket nos. 41 and 51.) The Court has reviewed the pleadings 

and dispenses with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). 

The Court is now ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A). 

I. BACKGROUND 

The Michigan Laborers’ Pension Fund (“Pension Fund”) receives contributions from 

employers in the building and construction industry who are bound to collective bargaining 

agreements (“CBAs”) with the Michigan Laborers’ District Council and/or its affiliated unions. 

(Docket no. 1 ¶ 10.) According to Plaintiff, the CBAs require employers to make contributions 

to the fund for covered work performed by their employees. (Id.) Plaintiff alleges that 

Defendants Rite Way Fence, Inc. (“Rite Way”) and Marx Contracting, Inc. (“Marx”) were each 

bound to a 2008-2013 CBA, which expired on June 1, 2013. (Id. ¶¶ 12, 26.) Plaintiff further 

alleges that Defendants Rite Way and Marx terminated their CBAs on the expiration date and 

permanently ceased making payments to the Pension Fund for work performed by their 

employees after that date, but they continued to conduct business in the construction industry 

within the geographical limits of the terminated CBA. (Id. ¶¶ 13-14, 27-28.) Plaintiff claims 

that Defendants Rite Way and Marx’s termination of the CBAs, along with their continued 

operation in the industry, constitute a complete withdrawal from the Pension Fund, resulting in a 

combined withdrawal liability of almost $600,000.00 plus accrued interest under the Employee 

Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1382, 1383, and 1391. (Id. ¶¶ 

15-16, 29-30.) Plaintiff filed the instant Complaint to recover this withdrawal liability, for which 

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Plaintiff claims that Defendants are jointly and severally liable based on alter ego, common 

control, and veil piercing theories.1

 (Docket no. 27 at 9.) 

On August 30, 2016, the Court granted in significant part Plaintiff’s Motion to Enforce 

Court Order, Compel Production of Documents, and Compel Depositions with regard to 

Plaintiff’s First Request for Production of Documents and certain Rule 30(b)(6) depositions. 

(Docket no. 63.) The Court will now address the three discovery motions remaining in this 

matter. 

II. GOVERNING LAW

 The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite 

broad. Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998). Parties may obtain 

discovery on any matter that is not privileged, is relevant to any party’s claim or defense, and is 

proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). “Relevant evidence” is “evidence 

having any tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without the 

evidence.” Fed. R. Evid. 401. Information need not be admissible in evidence to be 

discoverable. Fed. R. Civ. P. 26(b)(1). But the scope of discovery is not unlimited. “District 

courts have discretion to limit the scope of discovery where the information sought is overly 

broad or would prove unduly burdensome to produce.” Surles ex rel. Johnson v. Greyhound 

Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007). 

 

1

 According to Plaintiff, Defendant Zapczynski is the sole officer and shareholder of Defendant Rite Way; a 60% 

shareholder and an officer of Defendant Marx; and the sole member and owner of Defendant H & H Rentals L.L.C. 

(“H & H”), which allegedly owns the real property used in the operations of Defendants Rite Way and Marx. 

(Docket no. 1 ¶¶ 6, 7.) To support its theories of liability, Plaintiff makes several allegations against Defendants 

throughout the Complaint, such as the making of advances, issuance of loans, and commingling of funds and other 

assets amongst each other without written agreement; formation for a fraudulent purpose, undercapitalization; and 

failure to follow corporate formalities. (Id. ¶¶ 50-51, 57-58.) 

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 Rules 33 and 34 allow a party to serve interrogatories and requests for production of 

documents on an opposing party. Fed. R. Civ. P. 33, 34. A party receiving these types of 

discovery requests has thirty days to respond with answers or objections. Fed. R. Civ. P. 

33(b)(2), 34(b)(2)(A). Rule 30 allows a party to conduct a deposition of any person without 

leave of court, subject to certain exceptions. Fed. R. Civ. P. 30(a)(1). If the party receiving 

discovery requests under Rules 33 or 34 fails to respond properly, or if the person whose 

deposition is sought under Rule 30 fails to properly comply with the rule, Rule 37 provides the 

party who sent the discovery or noticed the deposition the means to file a motion to compel. 

Fed. R. Civ. P. 37(a)(3)(B). 

III. ANALYSIS 

 A. Plaintiff’s Motion to Compel Documents Subpoenaed from Non-Party Dilger 

 & Semaan, P.C. [40] 

 On January 29, 2016, Plaintiff served non-party Dilger & Semaan, P.C., the law firm that 

represented Defendant Zapczynski’s ex-wife, Kelly Jean Zapczynski, in their 2007 and 2012 

divorce proceedings, with a subpoena to produce certain documents related to those proceedings. 

(Docket no. 40 at 2; docket no. 40-2.) Plaintiff explains that the divorce cases involved 

Defendant Zapczynski’s ownership and operation of the corporate defendants in this matter; 

thus, the documents sought through the subpoena are relevant. (Id. at 2.) On February 17, 2016, 

Kathleen M. Dilger, Esq. objected to the subpoena on behalf of Dilger & Semaan, P.C. for the 

following reasons: (1) the scope of the document request is overly broad and unduly 

burdensome, especially where some of the documents are equally available to the subpoenaing 

party as part of the public record; (2) the information is protected by the attorney-client privilege; 

(3) the information requested is too voluminous, and the cost to locate and retrieve it from 

storage and to copy it would be considerable, which would result in an undue financial expense 

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and burden for both Ms. Dilger and Ms. Zapczynski; and (4) Defendant Zapczynski should 

already possess, or have access to, many of the subpoenaed documents, and Plaintiff should seek 

those documents through him. (Docket no. 40-4.) 

 On February 23, 2016, Plaintiff obtained records related to the 2012 divorce proceeding 

from Defendant Zapczynski’s divorce attorney. (Docket no. 40 at 8; docket no. 40-5.) Plaintiff 

subsequently informed Dilger & Semaan, P.C. of this development and effectively narrowed the 

scope of its subpoena to the documents related to the 2007 divorce proceeding.2 (Id.; docket no. 

40-6.) Plaintiff also informed Dilger & Semaan, P.C. that it was not seeking privileged material 

and that it would reimburse the firm for the reasonable cost of production, noting that it recently 

paid a total of $322.90 for the production of the subpoenaed documents from the 2012 divorce 

proceeding at 10 cents per page for hard copy documents and $80 per hour of paralegal time. 

(Id. at 8-9; docket no. 40-6.) 

 In the instant Motion, Plaintiff argues that the subpoenaed documents related to the 2007 

divorce proceeding are relevant and that Dilger & Semaan, P.C. should be ordered to produce 

them, but not at the requested rate of $300 per hour; Plaintiff argues that such a rate is grossly 

excessive. (Docket no. 40 at 9-10.) Later, in its Statement of Resolved and Unresolved Issues, 

Plaintiff indicates that it has since obtained the pleadings from the 2007 divorce proceeding from 

the Oakland County Circuit Court, and, as a result, it has further narrowed the scope of the 

subpoena to only the deposition transcripts from the 2007 proceeding, including any exhibits. 

(Docket no. 50 at 2.) In an effort to obtain the transcripts from another source, Plaintiff informs 

that it asked Dilger & Semaan, P.C. for the court reporter’s contact information, but Dilger & 

Semaan, P.C. did not respond. (Id.) Plaintiff claims that Dilger & Semaan, P.C. refuses to 

 

2

 Plaintiff points out that it is unable to obtain any documents from the attorney who represented Defendant 

Zapczynski in the 2007 divorce proceeding because he has passed away. (Docket no. 40 at 2.) 

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produce the transcripts until Plaintiff pays a $1,000 deposit to be applied to Dilger & Semann, 

P.C.’s cost of production at $300 per hour for attorney time and $85 per hour for paralegal time. 

(Id. at 3.) Plaintiff argues that any cost to produce the deposition transcripts would be minimal, 

for which Dilger & Semaan, P.C. is not protected under Federal Rule of Civil Procedure 

45(d)(2)(B)(ii). (Id.) Plaintiff therefore asserts that although it has previously offered to pay the 

reasonable expenses associated with production, in light of the minimal expense required and the 

fact that Dilger & Semaan, P.C. has not responded to Plaintiff’s Motion, the Court should 

compel Dilger & Semaan, P.C. to produce the transcripts without reimbursement. (Id.) 

 On May 5, 2016, Dilger & Semaan, P.C., through counsel, filed an objection to Plaintiff’s 

Statement of Resolved and Unresolved Issues. (Docket no. 57.) In this Objection, Dilger & 

Semaan, P.C. informs the Court that at all times, it has expressed willingness to cooperate in 

attempting to locate, retrieve, review, and copy the subpoenaed documents, which may be 

located off-site in closed file storage. (Id. ¶ 4.) Dilger & Semaan, P.C. argues that despite its 

willingness to cooperate, Plaintiff has refused to agree to reimburse the firm for the “arduous” 

task of responding to the subpoena, which is expected to involve several banker boxes of 

information, all containing attorney-client privileged material. (Id. ¶ 5.) Dilger & Semaan, P.C. 

then sets forth its position that it is not a party to these proceedings, it has not been ordered or 

directed by the Court to submit or contribute to any pleading of any kind, and that it is willing to 

cooperate upon reimbursement of its reasonable costs. (Id. ¶ 7.) Dilger & Semaan, P.C. 

indicates that it submitted this Objection to fully advise the Court of the status of this matter, 

despite its inability as a non-party to formally participate (including filing a response to the 

instant Motion)3

 and to avoid any further “absurd and improper use of discovery to increase the 

 

3

 Dilger & Semaan is misguided in this instance; pursuant to Federal Rule of Civil Procedure 45, a party served with 

a subpoena may file a motion to quash or modify the subpoena. Fed. R. Civ. P. 45(d)(3). 

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costs of litigation.” (Id. ¶ 9.) Lastly, Dilger & Semaan, P.C. requests that Plaintiff be ordered to 

reimburse the firm for all of its costs, including the attorney’s fees that it has been forced to incur 

in addressing the subpoena. (Id.) 

 Federal Rule of Civil Procedure 45 governs subpoenas and provides that a non-party 

served with a subpoena may make written objections to the subpoena before the earlier of the 

time specified for compliance or 14 days after the subpoena is served. Fed. R. Civ. P. 

45(d)(2)(B). “The filing of the objection suspends any duty to produce the subpoenaed 

documents, until the party serving the subpoena procures an order compelling production” from 

the issuing court. Matthias Jans & Assoc., Ltd. v. Dropic, No. 01-MC-26, 2001 WL 1661473, at 

*1 (W.D. Mich. Apr. 9, 2001); see also Fed. R. Civ. P. 45(d)(2)(B)(i). Any order compelling 

production, however, “must protect a person who is neither a party nor a party’s officer from 

significant expense resulting from compliance.” Fed. R. Civ. P. 45(d)(2)(B)(ii). This section of 

Rule 45 was added to protect non-parties “against significant expense resulting from involuntary 

assistance to the court.” Fed. R. Civ. P. 45 (Advisory Committee Notes, 1991 Amendment, 

Subdivision (c)). 

Here, Plaintiff has significantly reduced the scope of its subpoena to only the deposition 

transcripts and their exhibits from the 2007 divorce proceeding. While the Court does not opine 

regarding the expense of compliance with the entire subpoena as written, the Court is persuaded 

by Plaintiff’s assertion that the time and expense required to comply with the subpoena as 

limited to the 2007 deposition transcripts is minimal, especially where Defendant Zapczynski’s 

2012 divorce attorney was able to produce all of the documents related to the 2012 divorce 

proceeding in accordance with the subpoena as originally written for $322.90. Notably, Dilger 

& Semaan, P.C. has failed to demonstrate otherwise. Accordingly, the Court finds that non-party 

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Dilger & Semaan, P.C. will not incur significant expense in complying with Plaintiff’s subpoena 

as limited to only the deposition transcripts and their exhibits from the 2007 divorce proceeding, 

and it will order Dilger & Semaan, P.C. to produce the same without the reimbursement of costs 

within twenty-one (21) days of this Opinion and Order. 

B. Non-Party, Eugene R. Zapczynski’s Motion to Modify Subpoena to Testify at 

 a Deposition and Production of Documents for an Enlargement of Time and 

 Protective Order [47] 

Plaintiff served Defendant Zapczynski’s father, non-party Eugene R. Zapczynski, with a 

subpoena ad testificandum and duces tecum on January 29, 2016, which required him to appear 

for a deposition and produce certain documents on February 17, 2016. (Docket no. 49 at 4, 6; 

docket no. 49-2.) The deposition was rescheduled for April 11, 2016, at Mr. Zapczynski’s 

request. (Id.; docket no. 49-4 at 3.) On April 8, 2016, Mr. Zapczynski filed the instant Motion to 

Modify Subpoena to Testify at a Deposition and Production of Documents for an Enlargement of 

Time and Protective Order. (Docket no. 47.) In this Motion, Mr. Zapczynski challenges 

document request no. 8 of the subpoena, which requests that he produce financial documents for 

businesses that he allegedly owned and operated. The request provides as follows: 

For the period of January 1, 2007 to present, each and every financial statement 

and tax return for Michigan Bark, Putt, Inc., [and] Kern Co-Partnership that show 

any financial transaction or business dealings with Rite Way, Marx, H & H or 

Eugene M. Zapczynski. 

(Docket no. 47 at 2-3, 12.) Specifically, Mr. Zapczynski argues that Plaintiff is not entitled to 

the entire contents of Michigan Bark, Putt, Inc., and Kern Co-Partnership’s financial records and 

tax returns because the information is confidential and would not lead to the discovery of 

admissible evidence. (Id. at 3, 17.) He further argues that document request no. 8 should 

therefore be limited to only the specific parts and portions of those financial statements and tax 

returns that show specific financial transactions or business dealings with Defendants. (Id.) Mr. 

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Zapczynski also requests that his deposition testimony be similarly limited. (Id. at 4, 20.) 

Lastly, Mr. Zapczynski asks that he be given additional time to produce the documents, until 

April 30, 2016, because the documents are in the possession of his accountant, who is unable to 

compile the documents because it is “tax season,” and he is busy preparing tax returns for his 

clients. (Id. at 3, 19, 20.) 

In its April 22, 2016 Response to Mr. Zapczynski’s Motion, Plaintiff informs that Mr. 

Zapczynski did appear for his April 11, 2016 deposition, but he did not produce documents 

responsive to request no. 8, and he was deposed on other matters. (Docket no. 49 at 7.) Plaintiff 

then argues that Mr. Zapczynski’s Motion should be denied because (1) Mr. Zapczynski failed to 

object to the subpoena within fourteen days of service as required by Federal Rule of Civil 

Procedure 45(d)(2); (2) Mr. Zapczynski’s Motion is not timely under Rule 45(d)(3); and (3) Mr. 

Zapczynski’s Motion is not based on any of the grounds for modification specified in Rule 

45(d)(3). (Id. at 4, 8-11.) Plaintiff further argues that the financial and business dealings 

between Defendants and Michigan Bark, Putt, Inc., and Kern Co-Partnership are relevant to 

Plaintiff’s alter-ego theory and its claims of veil piercing by Defendant Zapczynski and that 

Defendants have conceded the relevancy of those dealings. (Id. at 7-8, 11-12.) Plaintiff 

concludes that Mr. Zapczynski should be ordered to immediately produce the complete tax 

returns and financial statements as requested. (Id. at 13.) 

Mr. Zapczynski replied to Plaintiff’s Response on May 2, 2016. (Docket no. 54.) In his 

Reply, Mr. Zapczynski advises that after consulting with his accountant, he has learned that there 

are no financial statements for Michigan Bark, Putt, Inc., or Kern Co-Partnership for the period 

requested, as financial statements were never prepared for those entities. (Id. at 2-3.) Mr. 

Zapczynski also advises that the tax returns prepared for Michigan Bark, Putt, Inc., and Kern Co2:14-cv-14142-MFL-MKM Doc # 71 Filed 10/25/16 Pg 9 of 12 Pg ID 1186
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Partnership do not show any itemized financial transactions or business dealings with 

Defendants.4

 (Id. at 3.) Essentially, Mr. Zapczynski advises that there are no documents 

responsive to document request no. 8 of Plaintiff’s subpoena, and the Court accepts this assertion 

as true. The non-existence of documents responsive to Plaintiff’s request no. 8 renders it 

unnecessary to limit the scope of the request or to grant the other related relief sought by Mr. 

Zapczynski. The Court will therefore deny Non-Party, Eugene R. Zapczynski’s Motion to 

Modify Subpoena to Testify at a Deposition and Production of Documents for an Enlargement of 

Time and Protective Order as moot. 

C. Defendants’ Motion to Enlarge Time to Respond to Plaintiff’s Second 

 Request for Production of Documents [48] 

Defendants filed the instant Motion on April 20, 2016, seeking a thirty-day extension of 

time within which to reply to Plaintiff’s Second Request of Production of Documents, which 

were served upon Defendants on March 22, 2016. (Docket no. 48.) Defendants assert that the 

documents requested by Plaintiff are voluminous and are located at three separate locations, and 

they argue that an extension of the response deadline to May 23, 2016 will not prejudice Plaintiff 

because the court recently extended the fact discovery deadline to July 21, 2016, and because 

Plaintiff does not plan to take any depositions until after May 23, 2016. (Id. at 2-3, 14.) 

 In response, Plaintiff asserts that its Second Request for Production of Documents 

consists of requests for Defendants’ QuickBooks accounting software records and other 

documents that could be easily transferred onto an electronic storage device and produced within 

the thirty-day time for response and that Defendants have failed to establish good cause for their 

request for an extension. (Docket no. 55 at 4, 10-11.) Plaintiff argues that it would be 

prejudiced by the requested thirty-day extension because the extension would effectively 

 

4

 Mr. Zapczynski provided Plaintiff with this information in an April 29, 2016 letter accompanied by a formal 

response to document request no. 8. (Docket no. 54 at 4-7.) 

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truncate the recent extension of the discovery deadline. (Id. at 4, 10.) Plaintiff also argues that it 

would be prejudiced because it scheduled the deposition of Defendant Rite Way’s former 

controller for May 24, 2016, before which it needs time to review the requested documents, and 

if the extension is granted, it will not have adequate time to do so. (Id. at 8.) Plaintiff argues that 

Defendants’ actions have forced Plaintiff to delay the deposition. (Id.) Finally, Plaintiff argues 

that Defendants have abused discovery throughout this litigation, and the instant Motion is a 

continuation of that abuse. (Id. at 4, 9.) 

 Defendants replied to Plaintiff’s response on May 11, 2016, and informed the Court that 

they have fully responded to Plaintiff’s Second Request for Production of Documents. (Docket 

no. 59.) Accordingly, Defendants’ Motion to Enlarge Time to Respond to Plaintiff’s Second 

Request for Production of Documents is now moot, and the Court will deny it as such. 

 IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel Documents 

Subpoenaed from Non-Party Dilger & Semaan, P.C. [40] as limited by Plaintiff’s Statement of 

Resolved and Unresolved Issues [50] is GRANTED. Non-Party Dilger & Semaan, P.C. will 

produce the deposition transcripts and their exhibits from the 2007 divorce proceeding between 

Kelly Jean Zapczynski and Eugene M. Zapczynski to Plaintiff without the reimbursement of 

costs within twenty-one (21) days of this Opinion and Order. 

IT IS FURTHER ORDERED that Non-Party, Eugene R. Zapczynski’s Motion to 

Modify Subpoena to Testify at a Deposition and Production of Documents for an Enlargement of 

Time and Protective Order [47] and Defendants’ Motion to Enlarge Time to Respond to 

Plaintiff’s Second Request for Production of Documents [48] are DENIED as moot. 

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NOTICE TO THE PARTIES 

 Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date 

of this Order within which to file any written appeal to the District Judge as may be permissible 

under 28 U.S.C. § 636(b)(1). 

Dated: October 25, 2016 s/ Mona K. Majzoub 

 MONA K. MAJZOUB 

 UNITED STATES MAGISTRATE JUDGE 

PROOF OF SERVICE

 I hereby certify that a copy of this Opinion and Order was served upon counsel of record 

on this date. 

Dated: October 25, 2016 s/ Lisa C. Bartlett 

 Case Manager

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