IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

DAVID C. PERRY, a participant in the, 

KENNEDY FUEL CO. 401(K) PROFIT 

SHARING PLAN, 

Plaintiff, 

v. 

BARRY BLOOMBERG, as Trustee of 

the Kennedy Fuel Co. 40 1 (K) Profit Sharing 

Plan; GLORIA L. BLOOMBERG, as 

Trustee of the Kennedy Fuel Co. 401(K) 

Profit Sharing Plan; KENNEDY FUEL CO., 

an Oregon domestic business corporation, as 

Plan Administrator of the Kennedy Fuel Co. 

401(K) Profit Sharing Plan; and KENNEDY 

FUEL CO. 401(K) PROFIT SHARING 

PLAN, 

Defendants. 

CLARKE, Magistrate Judge 

Case No. 1: 15-cv-00408-CL 

ORDER 

Plaintiff David Perry brings claims against the defendants Gloria Bloomberg, David 

Bloomberg, Kennedy Fuel Co., and Kennedy Fuel Co. 401(k) Profit Sharing Plan alleging they 

violated the Employee Retirement and Security Act of 1974 ("ERISA"), as amended, 29 USC 

§§ 1001-1191c. Plaintiffhas filed a claim for distribution ofbenefits under ERISA §502(a)(1)(B) 

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and (a)(2), 29 USC§ 1132(a)(l)(B) and (a)(2), and a claim for relief under ERISA§ 409, 29 

U.S.C. § 1109. This case comes before the court on an ongoing discovery dispute between the 

parties. Defendants have filed a motion to quash (#16) and a motion to stay (#21). For the 

reasons below, Defendants' motions are denied. Defendants and subpoenaed nonparties are 

ordered to immediately produce all documents requested by Plaintiff in his May 1, 2015, 

subpoenas. (#16-1 to #16-5). 

BACKGROUND 

Plaintiff was an employee for Kennedy Fuel Co. for 32 years. Between 1985, when the 

Kennedy Fuel Co. 401(k) Plan ("the Plan") was established, and August 1, 2014, when the 

Plaintiff retired, Plaintiff participated in the Plan by contributing bi-weekly deductions from his 

salary. On December 9, 2014, Plaintiff requested that his account balance of$766,240.49 be 

distributed into his IRA. (#23). Plaintiff alleges that Defendants improperly invested Plan 

contributions such that they were unable to comply with their fiduciary duties under ERISA and 

fulfill Plaintiff's distribution requests in compliance with the terms of the Plan. On March 12, 

2015, Plaintiff filed a complaint against the Defendants under ERISA §409 and §502. Plaintiff 

requests damages as well as equitable relief. 

On May 1, 2015, Plaintiff issued subpoenas requesting documents related to the 

investment of Plan funds and the management of the Plan to Crater Lake Developments, 

Northwest Retirement Plans, Inc., Crown West Developments, James K. Johnson DMD Pension 

Plan, and Gary Whittle. (#16-1 to #16-5). Defendants moved to quash the subpoenas under 

Federal Rule of Civil Procedure 45(d)(3). They allege that the subpoenas subject both 

Defendants and nonparties to undue burden. 

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Defendants have also moved to stay proceedings pending action by the Department of 

Labor. Defendants provided a copy of a May 5, 2015, Department of Labor report on the results 

of a two year investigation into the Plan, which found Defendants committed multiple ERISA 

violations. In support of their motion to stay, Defendants provided a declaration from Joelle 

Tavan, an attorney with defense counsel's firm who has experience with Department 

proceedings. She believes that the May 5th letter is indicative of the beginning of formal agency 

proceedings. (#33). At oral argument on May 28, 2015, Defendants stated that such proceedings 

would likely commence a year from the letter, during which time the Department of Labor will 

await voluntary compliance by Defendants. Defendants allege that a stay would prevent 

inconsistent adjudication and factual findings as well as prevent the depletion of Plan resources 

for other beneficiaries. In his response, Plaintiff points out that the May 5th letter states that no 

proceedings have begun. (#30). 

DISCUSSION 

I. Defendants' motion to stay (#21) is denied. 

The power to stay is "incidental to the power inherent in every court to control the 

disposition of the causes on its docket with economy of time and effort for itself, for counsel, and 

for litigants." Landis v. N Am. Co., 299 U.S. 248, 254 (1936). In Lockyer, the Ninth Circuit 

reiterated it would weigh: 

the possible damage which may result from the granting of a stay, the hardship or 

inequity which a party may suffer in being required to go forward, and the orderly course 

of justice measured in terms of the simplifying or complicating of issues, proof, and 

questions oflaw which could be expected to result from a stay. 

Lockyer v. Mirant Corp., 398 F.3d. 1098, 1110 (9th Cir. 2005) (citing CMAX, Inc. v. Hall, 300 

F.2d. 265, 268 (9th Cir. 1962)). Factors the court considers include whether "the other 

proceedings will be concluded within a reasonable time in relation to the urgency of the claims," 

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Levya v. Certified Grocers ofCalifornia, Ltd. 593 F.2d. 857, 864 (9th Cir. 1979), and the nature 

of the relief sought, see Lockyer, 3 98 F. 3d at 1112 (denying stay in part because the Attorney 

General is seeking injunctive relief on behalf of the people of California); CMAX, 300 F.2d at 

268-69 (granting the stay and noting that the plaintiff is only seeking damages). 

The doctrine of primary jurisdiction also allows courts to grant a stay pending agency 

proceedings. Under this doctrine, courts have the discretion to defer to the decision making 

power of an agency even when there are common-law remedies available to the plaintiff Nader 

v. Allegheny Airlines, Inc. 426 U.S. 290, 303-04 (1976). Such deference is often appropriate 

when the action addresses a highly technical finding of fact better suited for the expertise of the 

agency, id. at 304, or involves an issue of first impression, Syntek Semiconductor Co., Ltd. V 

Microchip Tech. Inc. 307 F.3d 775, 780 (9th Cir. 2002). In deciding whether to defer to an 

agency, courts evaluate whether there is a "(1) need to resolve an issue that (2) has been placed 

by Congress within the jurisdiction of an administrative body having regulatory authority (3) 

pursuant to a statute that subjects an industry or activity to a comprehensive regulatory authority 

that (4) requires expertise or uniformity in administration." !d. at 781 

At this time, a Landis stay is not appropriate in this case. Unlike many cases where a 

motion to stay is granted, no other formal proceedings have commenced against Defendants. See 

Mediterranean Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458, 1465 (9th Cir. 1983) (affirming 

stay because of pending arbitration of related claims); CMAX, 300 F.2d at 269-270 (granting stay 

because of enforcement proceedings in front of the Civil Aeronautics Board); Dixon v. Falcon 

Heights Condo. Ass 'n, 1 :12-cv-00439-CL, 2012 WL 3597555, at *4 (granting stay pending 

concurrent proceedings in the Circuit Court of Oregon); Alvarez v. T-Mobile USA, Inc. CIV. 210-

2372 WBS GGH, 2010 WL 5092971, at *3 (E.D. Cal. Dec. 10, 2010) (granting stay pending a 

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Supreme Court case regarding an arbitration). While defense counsel believes the May 5th letter 

is indicative of future formal action by the Department of Labor, counsel also stated at oral 

argument on May 28, 2015, that such proceedings would not start for at least a year while the 

Department awaits voluntary compliance by Defendants. Defendants argue that there may be 

criminal or other agency proceedings, but until such action has commenced a stay is 

inappropriate. 

Had formal proceedings already begun, Defendants' motion probably still fails to meet 

the criteria for a Landis stay. 1 Plaintiff here has a right to take civil action against the Defendants 

both under the terms of the Plan, (#19-1), and under ERISA, 29 U.S.C. § 1132(a)(l)(b). In 

addition, the Department of Labor's letter makes clear that even a Department decision to move 

forward does not prevent other parties from pursuing legal action. (#22-1). Unlike in CMAX, 

where the plaintiff was only pursuing damages, 300 F.2d at 268-69, here, the Plaintiff is 

requesting that the court make decisions regarding the distribution of the Plan and take specific 

action with regard to the Defendants in their role as fiduciaries, which would likely impact all 

Plan beneficiaries. (#1). Requiring Plaintiff to wait for relief under these circumstances may 

cause damage to the Plaintiff and other Plan members. 

Defendants have also failed to show that said damage is justified by the hardship or 

inequity they would suffer going forward. In Lockyer, the court held, "being required to defend a 

suit, without more, does not constitute a clear case of hardship or inequity within the meaning of 

Landis." 398 F.3d at 1112 (internal quotations omitted). Similarly, Defendants here do not show 

any hardship other than moving forward with litigation. Though litigation can be costly, this is 

not akin to Alvarez, where a stay was granted as arbitration would significantly reduce costs. 

1 The Court is willing to reconsider this issue, however, should formal proceedings take place at a later 

date, while this litigation is still ongoing. 

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2010 WL 5092971, at *2. There is no indication that staying this litigation to await an agency 

proceeding will defray costs enough to justify delaying relief for Plaintiff. 

Defendants also state that pursuing this action would result in an inefficient use of 

resources. While there may be some concern for inconsistencies between the Department's 

findings and those of this court, the fact that no formal proceedings have begun casts doubt on 

such concerns. Though the findings of the Department of Labor could simplify some of the 

issues presented, such a benefit is not great enough in this case to outweigh the cost of delaying 

Plaintiffs claim. Defendants believe Plaintiff may receive relief from the Department of Labor 

prior to the conclusion of this proceeding; however, the court has other tools at its disposal to 

ensure a speedy and just remedy for the Plaintiff. The Court will assist the parties to manage the 

case to achieve a cost effective and timely resolution to this case. 

Invoking the doctrine of primary jurisdiction is also not appropriate under these facts. 

This is not a case where agency expertise is warranted as there is neither an issue of first 

impression nor is this a case where the uniformity of federal regulation is at risk. As Plaintiff 

points out in their response, ERISA claims are frequently heard by this court and are well within 

its expertise. (#30). ERISA expressly gives jurisdiction to the Federal District Court on these 

matters. 29 U.S.C. § 1132(e)(1). For these reasons, the Defendants' motion to stay is denied at 

this time. 

II. Defendants' motion to quash (#16) is denied. 

Rule 45 governs the issuance of subpoenas to nonparties in order to obtain documents. 

Fed R. Civ. P. 45(a)(1)(A)(iii). A court must quash a subpoena when it "subjects a person to an 

undue burden." Fed. R. Civ. P. 45(d)(3)(A)(iv). Parties do not have standing to quash a subpoena 

issued to a nonparty unless they are able to claim "some personal right or privilege with regard to 

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the documents sought." Crispin v. Christian Audigier, Inc., 717 F. Supp 2d 965, 973-74 (C.D. 

Cal2010) (quoting 9A Charles Wright & Arthur Miller, Federal Practice and Procedure, §2459 

(3d. Ed. 2008)). 

If a party has standing to object, the moving party has the "burden of persuasion." Moon 

v. SCP Pool Corp. 232 F.R.D. 633, 637 (C.D. Cal. 2005). In evaluating whether or not a 

subpoena is unduly burdensome, courts look to "relevance, the need ofthe party for the 

documents, the breadth of the document requested, the time period covered by it, the 

particularity with which the documents are described, and the burden imposed." I d. (internal 

quotations omitted). 

It does not appear that the Defendants have standing to move to quash these subpoenas. 

However, even if they do, their motion also fails to show any undue burden to the subpoenaed 

parties under Rule 45. While producing documents for both Plaintiff and the Department of 

Labor is likely burdensome, it is not so unduly burdensome as to justify quashing Plaintiffs 

requests for information that are highly relevant, not overly broad, and necessary for his suit per 

the factors cited in Moon. 232 F.R.D. at 637. Further, one of the subpoenaed parties has already 

responded to the Plaintiff by acknowledging receipt ofthe motion to quash and informing 

Plaintiff of their decision to delay responding until further instructions are provided. (#25-3). 

This suggests that the nonparty has the capacity to fulfill the requests of the subpoena. For these 

reasons, Defendants' motion to quash is denied. 

/Ill 

/Ill 

/Ill 

/Ill 

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ORDER 

For the forgoing reasons, Defendants' motion to quash (#16) and motion to stay (#21) are 

denied. 

ORDERED and DATED this Lf. 

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