Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cardiovascular Surgery of Alexandria, L.L.C. v. Kerry

United States District Court, W.D. Louisiana, Alexandria Division

November 5, 2019

CARDIOVASCULAR SURGERY OF ALEXANDRIA, L.L.C., ET AL. Plaintiffs
v.
DONNA L. KERRY, Defendant

          DRELL, JUDGE

          REPORT AND RECOMMENDATION

          JOSEPH H.L. PEREZ-MONTES, UNITED STATES MAGISTRATE JUDGE

         Before the Court is a Motion for Summary Judgment (Doc. 14) filed by Plaintiffs Cardiovascular Surgery of Alexandria, L.L.C. (“CSA”) and Tommie Mack Granger (“Granger”) (collectively, “Plaintiffs”). Pro se Defendant Donna L. Kerry[1](“Kerry”) opposes. (Doc. 17).

         Plaintiffs fail to show they are entitled to judgment as a matter of law because 18 U.S.C. § 3663A is inapplicable to Plaintiffs' action. Plaintiffs' Motion for Summary Judgment (Doc. 14) should therefore be DENIED.

         I. Background

         On July 31, 2018, Plaintiffs filed a Complaint for Declaratory Judgment (Doc. 1) against Kerry seeking a declaratory judgment under 28 U.S.C. §§ 2201-02. Plaintiffs assert Kerry, Plaintiffs' office manager, stole substantial funds from Plaintiffs' medical practice and that they are “victims” under the express terms of 18 U.S.C. § 3663A(a)(2). (Doc. 1, p. 2). On July 6, 2009, Kerry pleaded guilty to 17 counts of theft greater than $500.00. (Doc. 1, pp. 2-3). Plaintiffs contend a restitution order was issued against Kerry on October 26, 2009. (Doc. 1, p. 3). Plaintiffs assert restitution was ordered in the amount of $318, 383.00, with accruing judicial interest and all costs of court. Id. Plaintiffs claim Kerry has not paid any lump sum or installment as required by La. Code Crim. P. art. 895.1. Id. Plaintiffs assert Kerry has paid $1, 475.00 since October 29, 2009 toward the restitution order. Id.

         Plaintiffs contend Kerry intends to access funds in her retirement account. Id. Plaintiffs claim they sponsored and funded Kerry's retirement account and that Kerry contributed to it through withholdings from her paychecks. (Doc. 1, p. 2). Plaintiffs assert Kerry's retirement account is an Employee Retirement Income Security Act (“ERISA”) benefit plan as defined by 29 U.S.C. § 1002(3). Id. Plaintiffs claim they contributed $70, 011.95 and Kerry contributed $41, 743.75 to her retirement account. Id.

         Plaintiffs seek the corpus of the retirement account, or an order “restoring them as victims” of Kerry's crimes. (Doc. 1, p. 4). Plaintiffs argue the Mandatory Victim Restitution Act (“MVRA”), 18 U.S.C. § 3663A, supersedes the anti-alienation provisions of ERISA or the Internal Revenue Code (“IRC”). Id. Plaintiffs assert federal law preempts state law on matters related to ERISA, and Louisiana courts lack authority to adjudicate this matter. Id.

         Plaintiffs seek a declaratory judgment that: (1) Plaintiffs are victims under 18 U.S.C. § 3663A; (2) Kerry engaged in a scheme and pattern of criminal activity where she stole substantial funds from Plaintiffs; (3) Plaintiffs are entitled to restitution under 18 U.S.C. § 3663A; (4) that Plaintiffs can garnish and seize Kerry's employee retirement benefit /401(k) account (“Kerry's retirement account”) to obtain restitution; (5) and Kerry is prohibited from removing any funds from her employee retirement benefit /401(k) account until the Court disposes of this action. (Doc. 1, p. 5).

         Kerry answered. (Doc. 11). Plaintiffs now seek summary judgment on their declaratory action. (Doc. 14). Kerry opposes. (Doc. 17).

         II. Law and Analysis

         A. Standards governing the Motion for Summary Judgment.

         Under Rule 56 of the Federal Rules of Civil Procedure, a court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Paragraph (e) of Rule 56 also provides the following:

If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.