United States v. McLean

U.S. District Court, District of Minnesota June 24, 2024

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

United States of America, Case No. 23-cv-2096 (PJS/TNL)

Plaintiff,

v. ORDER

Jason McLean,

Defendant.

This matter comes before the Court on Plaintiff United States of America’s Motion
to Compel Discovery Responses, ECF No. 42. No response was filed by Defendant
Jason McLean. The Court struck the hearing and took this matter under advisement, on
the papers. ECF No. 49; see D. Minn. LR 7.1(b).
I. BACKGROUND
In December 2023, judgment was entered against McLean and in favor of the
United States “for unpaid federal income taxes for tax years 2016 and 2017 in the amount
of $737,679, plus interest and other statutory additions accruing from and after December
7, 2023.” ECF No. 29 at 1-2; see also ECF No. 30. As part of the judgment, McLean
was ordered to “sell any foreign real property that he owns, including real property in
Mexico, and repatriate such proceeds to the United States and deposit them in the Court’s
registry.” ECF No. 29 at 1; see also ECF No. 30. Thereafter, “the proceeds . . . [would]
be distributed to McLean’s creditors, including the United States.” ECF No. 29 at 1; see
also ECF No. 30.
In connection with the judgement, the United States served interrogatories and
documents requests on McLean. See generally Exs. A and B to Decl. of Daniel

Applegate, ECF Nos. 44-1 and 44-2. These discovery requests were served on McLean’s
then-counsel.1 Applegate Decl. ¶ 1, ECF No. 44. The United States agreed to extend the
time for McLean to respond to the discovery requests. See Applegate Decl. ¶ 2.
In late March 2024, the Court held a hearing on a motion to withdraw by
McLean’s then-counsel. See generally ECF No. 37. McLean did not appear at the
hearing despite being provided with the remote log-in information. During the unsealed

portion of the hearing, the Court expressed concern that the totality of the circumstances
and record in this case, including but not limited to the record of delayed responses,
especially to discovery, support a finding that McLean was engaging in an inappropriate
tactic of delay for the sake of delay.
Following this hearing, the United States gave McLean an additional extension up

to and including April 30, 2024, to respond to the discovery requests. Applegate Decl.
¶ 3; see generally Ex. C to Applegate Decl., ECF No. 44-3. In a letter, McLean was
warned that if he did not respond to the discovery requests by April 30, the United States
would file a motion to compel and ask the Court to award costs associated with the
motion. Ex. C to Applegate Decl., ECF No. 44-3 at 1; see Applegate Decl. ¶ 3 (noting

then-counsel conveyed United States’ letter to McLean). McLean did not respond.
Applegate Decl. ¶ 4.
In early May, the United States made further efforts to confer with McLean, e-

1 Defendant’s then-counsel was subsequently permitted to withdraw. See generally ECF Nos. 37, 38.
mailing him the discovery requests and the prior letter. Applegate Decl. ¶ 5. The United
States again told McLean that it intended to file a motion compelling McLean to respond

to the discovery requests. Ex. E to Applegate Decl., ECF No. 44-5 at 1. McLean initially
responded that this was “the first communication” he had received since attempting to
contact the Internal Revenue Service directly regarding his tax liabilities. Ex. D to
Applegate Decl., ECF No. 44-4 at 1; see Applegate Decl. ¶ 6. The next day, McLean
stated that he had “read the first set of requests for documents” that morning and would
“gather what [he has] regarding the requests,” noting that “[i]t seems that will require

some time to assemble.” Ex. E to Applegate Decl., ECF No. 44-5 at 1.
The United States moves for an order compelling McLean to respond to the
discovery requests. The United States also seeks its costs and fees incurred in bringing
this motion. As noted above, McLean has not responded.
II. ANALYSIS

A. Legal Standard
“The law allows judgment creditors to conduct full post-judgment discovery to aid
in executing judgment.” Credit Lyonnais, S.A. v. SGC Int’l, Inc.,

160 F.3d 428, 430

 (8th 
Cir. 1998).  Under Rule 69(a) of the Federal Rules of Civil Procedure, a “judgment 
creditor . . . 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. P. 69(a)(2); see also Minn. R. Civ. P. 69 (“In aid of the judgment or execution, the 
judgment creditor . . . may obtain discovery from any person, including the judgment 
debtor,  in  the  manner  provided  by  these  rules.”).    “The  purpose  of  post-judgment 
discovery is to learn information relevant to the existence or transfer of the judgment 
debtor’s assets.”  Brit. Int’l Ins. Co. v. Seguros La Republica, S.A.,

200 F.R.D. 586, 589

 

(W.D. Tex. 2000).  “The scope of post[-]judgment discovery is very broad to permit a 
judgment creditor to discover assets upon which execution may be made.” JP Morgan 
Chase Bank, N.A. v. DataTreasury Corp.,

936 F.3d 251, 256

 (5th Cir. 2019) (quotation 
omitted).  As such, Rule 69(a) “allows the judgment creditor freedom to make a broad 
inquiry to discover hidden or concealed assets of the judgment debtor.”  SIM Surgical, 
LLC v. SpineFrontier, LLC, No. 4:20-CV-01060-JAR,

2023 WL 1100380

, at *2 (E.D. 

Mo. Jan. 30, 2023) (quotation omitted).                                   
“Rule  69(a)  applies  the  normal  procedure  of  conducting  discovery  to  post-
judgment discovery requests.”

Id.

 (citing Fed. R. Civ. P. 69(a)(2)).  As for interrogatories, 
Rule 33 of the Federal Rules of Civil Procedure provides that a “party must serve its 
answers and any objections within 30 days after being served with the interrogatories” 

unless a different response time is agreed to by the parties or ordered by the Court.  Fed. 
R. Civ. P. 33(b)(2); see SIM Surgical,

2023 WL 1100380

, at *2 (“responses to written 
[post-judgment] discovery must comply with the requirements of Federal Rules of Civil 
Procedure 33 and 34, including the time to respond and waiver of objections if not timely 
raised”).  “Any ground not stated in a timely objection is waived unless the court, for 

good cause, excuses the failure.”  Fed. R. Civ. P. 33(b)(4); see SIM Surgical,

2023 WL 1100380

, at *2.  Similarly, with respect to document requests, Rule 34 provides that a 
party “must respond in writing within 30 days after being served” unless a different 
response  time is  agreed  to  by  the  parties  or  ordered  by  the  Court.    Fed.  R. Civ.  P. 
34(b)(2)(A); see SIM Surgical,

2023 WL 1100380

, at *2.  And, while “Rule 34 does not 
contain explicit language providing that a failure to timely object to discovery constitutes 

a waiver of those objections,” “courts in this District have adopted a rule that such a 
waiver is implied into Rule 34 for late objections unless the Court excuses the failure for 
good cause shown.”  Klein v. Affiliated Grp., Inc., No. 18-cv-949 (DWF/ECW),

2019 WL 1307884

, at *5 (D. Minn. Mar. 22, 2019) (citing cases); see also, e.g., Cargill, Inc. v. Ron 
Burge Trucking, Inc.,

284 F.R.D. 421, 424

(D. Minn. 2012).
Rule 37 of the Federal Rules of Civil Procedure allows a party to move for an

order compelling a discovery response when a party fails to answer an interrogatory or
produce documents in response to a document requests. Fed. R. Civ. P. 37(a)(3)(B)(iii),
(iv). Under Rule 37, “an evasive or incomplete disclosure, answer, or response must be
treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P. 37(a)(4). Further,
when a motion to compel is granted, Rule 37 provides that the Court “must, after giving

an opportunity to be heard, require the party . . . whose conduct necessitated the motion,
the party or attorney advising that conduct, or both to pay the movant’s reasonable
expenses incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P.
37(a)(5)(A). Such expenses should not be ordered, however, if “the opposing party’s
nondisclosure, response, or objection was substantially justified,” or if “other

circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(ii), (iii).
B. Discovery Requests
The United States’ motion is granted as to the requested discovery. The
interrogatories ask McLean to provide information related to his sources of income,
business interests, foreign and domestic bank and financial accounts, and foreign and
domestic real property. Among other things, the document requests seek financial and

investment account statements; documents related to the foreign property McLean was
ordered to sell; documents related to foreign property owned “through a Fideicomiso
(also known as a bank trust),” Ex. A to Applegate Decl., ECF No, 44-1 at 3; and
documents related to other rental property.
Based on the record before the Court, McLean has utterly failed to respond to the
United States’ interrogatories and document requests. The Court has already expressed

its concern about McLean’s delayed responses to discovery. McLean had more than four
months to respond and failed to do so. Any objections to these discovery requests are
waived. On or before July 16, 2024, McLean must provide to the United States: (1) his
responses to the United States’ First Set of Collection Interrogatories to Judgment Debtor
Jason McLean served on December 8, 2023, signed under penalties of perjury, see

generally Ex. A to Applegate Decl., ECF No. 44-1; and (2) all responsive documents and
electronically stored information in response to the United States’ First Set of Requests
for Production of Documents to Judgment Debtor Jason McLean served on December 8,
2023, see generally Ex. B to Applegate Decl., ECF No. 44-2.
McLean is expressly cautioned that a failure to comply with this Order “may be

treated as contempt of court under Rule 37.” Bigham v. R & S Heating, No. 14-cv-1357
(DWF),

2020 WL 6743481

,  at  *7  (D.  Minn.  Nov.  17,  2020);  see  Fed.  R.  Civ.  P. 
37(b)(2)(A)(vii) (option to treat failure to comply with discovery order as contempt of 
court);  see  also,  e.g.,  Edeh  v.  Carruthers,  No.  10-cv-2860  (RHK/JSM),

2011 WL 4808194

, at *2-5 (D. Minn. Sept. 20, 2011) (recommending finding of civil contempt and 
sanction of imprisonment for failure to comply with post-judgment discovery order), 

report and recommendation adopted,

2011 WL 4808191

 (D. Minn. Oct. 11, 2011).  “The 
objective of a court’s contempt power is ‘to ensure that litigants do not anoint themselves 
with the power to adjudge the validity of orders to which they are subject.”  Bricklayers 
&  Allied  Craftworkers  Serv.  Corp.  v.  O’Hara  Masonry,  Inc.,  No.  22-cv-2003 
(KMM/TNL),

2023 WL 4580971

, at *1 (D. Minn. July 18, 2023) (quoting Chicago Truck 
Drivers v. Bhd. Labor Leasing,

207 F.3d 500

, 504 (8th Cir. 2000)).

C. Fees & Costs
As stated above, Rule 37 provides that, when a motion to compel is granted, the
Court “must, after giving an opportunity to be heard, require the party . . . whose conduct
necessitated the motion, the party or attorney advising that conduct, or both to pay the
movant’s reasonable expenses incurred in making the motion, including attorney’s fees.”

Fed. R. Civ. P. 37(a)(5)(A). Such expenses should not be ordered, however, if “the
opposing party’s nondisclosure, response, or objection was substantially justified,” or if
“other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(ii),
(iii).
McLean did not respond to the United States’ motion. McLean has not offered

any justification to the Court for his failure to respond to the propounded discovery, let
alone substantial justification. McLean has not even argued that expenses should not be
awarded here.
Accordingly, McLean shall bear the reasonable expenses, including attorney fees,
incurred by the United States in bringing this motion to compel. Such expenses shall be
set forth by the United States in an affidavit of counsel filed no later than July 16, 2024.

McLean may respond to the requested amounts no later than August 6, 2024.
III. ORDER
Based upon the record, memoranda, and the proceedings herein, and for the
reasons stated above, IT IS HEREBY ORDERED that:
1. The United States’ Motion to Compel Discovery Responses, ECF No. 42, is
GRANTED.

2. On or before July 16, 2024, McLean must provide to the United States: (1)
his responses to the United States’ First Set of Collection Interrogatories to
Judgment Debtor Jason McLean served on December 8, 2023, signed under
penalties of perjury, see generally Ex. A to Applegate Decl., ECF No. 44-1; and
(2) all responsive documents and electronically stored information in response
to the United States’ First Set of Requests for Production of Documents to
Judgment Debtor Jason McLean served on December 8, 2023, see generally
Ex. B to Applegate Decl., ECF No. 44-2.

3. On or before July 16, 2024, the United States shall file an affidavit of counsel,
setting forth the reasonable expenses, including attorney fees, incurred in
bringing the motion to compel.

4. On or before August 6, 2024, McLean may file a response to the amounts
requested by the United States.

5. All prior consistent orders remain in full force and effect.

[Continued on next page.]
6. Failure to comply with any provision of this Order or any other prior consistent
Order shall subject the non-complying party, non-complying counsel and/or the
party such counsel represents to any and all appropriate remedies, sanctions
and the like, including without limitation: assessment of costs, fines and
attorneys’ fees and disbursements; waiver of rights to object; exclusion or
limitation of witnesses, testimony, exhibits and other evidence; striking of
pleadings; complete or partial dismissal with prejudice; entry of whole or
partial default judgment; and/or any other relief that this Court may from time
to time deem appropriate.

Dated: June 24 , 2024 s/ Tony N. Leung
Tony N. Leung
United States Magistrate Judge
District of Minnesota

United States v. McLean
Case No. 23-cv-2096 (PJS/TNL)

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

United States of America, Case No. 23-cv-2096 (PJS/TNL)

Plaintiff,

v. ORDER

Jason McLean,

Defendant.

then-counsel conveyed United States’ letter to McLean). McLean did not respond.
Applegate Decl. ¶ 4.
In early May, the United States made further efforts to confer with McLean, e-

A. Legal Standard
“The law allows judgment creditors to conduct full post-judgment discovery to aid
in executing judgment.” Credit Lyonnais, S.A. v. SGC Int’l, Inc.,

160 F.3d 428, 430

 (8th 
Cir. 1998).  Under Rule 69(a) of the Federal Rules of Civil Procedure, a “judgment 
creditor . . . 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. P. 69(a)(2); see also Minn. R. Civ. P. 69 (“In aid of the judgment or execution, the 
judgment creditor . . . may obtain discovery from any person, including the judgment 
debtor,  in  the  manner  provided  by  these  rules.”).    “The  purpose  of  post-judgment 
discovery is to learn information relevant to the existence or transfer of the judgment 
debtor’s assets.”  Brit. Int’l Ins. Co. v. Seguros La Republica, S.A.,

200 F.R.D. 586, 589

 

(W.D. Tex. 2000).  “The scope of post[-]judgment discovery is very broad to permit a 
judgment creditor to discover assets upon which execution may be made.” JP Morgan 
Chase Bank, N.A. v. DataTreasury Corp.,

936 F.3d 251, 256

 (5th Cir. 2019) (quotation 
omitted).  As such, Rule 69(a) “allows the judgment creditor freedom to make a broad 
inquiry to discover hidden or concealed assets of the judgment debtor.”  SIM Surgical, 
LLC v. SpineFrontier, LLC, No. 4:20-CV-01060-JAR,

2023 WL 1100380

, at *2 (E.D. 

Mo. Jan. 30, 2023) (quotation omitted).                                   
“Rule  69(a)  applies  the  normal  procedure  of  conducting  discovery  to  post-
judgment discovery requests.”

Id.

 (citing Fed. R. Civ. P. 69(a)(2)).  As for interrogatories, 
Rule 33 of the Federal Rules of Civil Procedure provides that a “party must serve its 
answers and any objections within 30 days after being served with the interrogatories” 

unless a different response time is agreed to by the parties or ordered by the Court.  Fed. 
R. Civ. P. 33(b)(2); see SIM Surgical,

2023 WL 1100380

, at *2 (“responses to written 
[post-judgment] discovery must comply with the requirements of Federal Rules of Civil 
Procedure 33 and 34, including the time to respond and waiver of objections if not timely 
raised”).  “Any ground not stated in a timely objection is waived unless the court, for 

good cause, excuses the failure.”  Fed. R. Civ. P. 33(b)(4); see SIM Surgical,

2023 WL 1100380

, at *2.  Similarly, with respect to document requests, Rule 34 provides that a 
party “must respond in writing within 30 days after being served” unless a different 
response  time is  agreed  to  by  the  parties  or  ordered  by  the  Court.    Fed.  R. Civ.  P. 
34(b)(2)(A); see SIM Surgical,

2023 WL 1100380

, at *2.  And, while “Rule 34 does not 
contain explicit language providing that a failure to timely object to discovery constitutes 

a waiver of those objections,” “courts in this District have adopted a rule that such a 
waiver is implied into Rule 34 for late objections unless the Court excuses the failure for 
good cause shown.”  Klein v. Affiliated Grp., Inc., No. 18-cv-949 (DWF/ECW),

2019 WL 1307884

, at *5 (D. Minn. Mar. 22, 2019) (citing cases); see also, e.g., Cargill, Inc. v. Ron 
Burge Trucking, Inc.,

284 F.R.D. 421, 424

(D. Minn. 2012).
Rule 37 of the Federal Rules of Civil Procedure allows a party to move for an

treated as contempt of court under Rule 37.” Bigham v. R & S Heating, No. 14-cv-1357
(DWF),

2020 WL 6743481

,  at  *7  (D.  Minn.  Nov.  17,  2020);  see  Fed.  R.  Civ.  P. 
37(b)(2)(A)(vii) (option to treat failure to comply with discovery order as contempt of 
court);  see  also,  e.g.,  Edeh  v.  Carruthers,  No.  10-cv-2860  (RHK/JSM),

2011 WL 4808194

, at *2-5 (D. Minn. Sept. 20, 2011) (recommending finding of civil contempt and 
sanction of imprisonment for failure to comply with post-judgment discovery order), 

report and recommendation adopted,

2011 WL 4808191

 (D. Minn. Oct. 11, 2011).  “The 
objective of a court’s contempt power is ‘to ensure that litigants do not anoint themselves 
with the power to adjudge the validity of orders to which they are subject.”  Bricklayers 
&  Allied  Craftworkers  Serv.  Corp.  v.  O’Hara  Masonry,  Inc.,  No.  22-cv-2003 
(KMM/TNL),

2023 WL 4580971

, at *1 (D. Minn. July 18, 2023) (quoting Chicago Truck 
Drivers v. Bhd. Labor Leasing,

207 F.3d 500

, 504 (8th Cir. 2000)).

3. On or before July 16, 2024, the United States shall file an affidavit of counsel,
setting forth the reasonable expenses, including attorney fees, incurred in
bringing the motion to compel.

4. On or before August 6, 2024, McLean may file a response to the amounts
requested by the United States.

5. All prior consistent orders remain in full force and effect.

Dated: June 24 , 2024 s/ Tony N. Leung
Tony N. Leung
United States Magistrate Judge
District of Minnesota

United States v. McLean
Case No. 23-cv-2096 (PJS/TNL)

Reference

Status: Unknown