United States District Court, W.D. Louisiana, Alexandria Division
CARDIOVASCULAR SURGERY OF ALEXANDRIA, L.L.C., ET AL. Plaintiffs
DONNA L. KERRY, Defendant
REPORT AND RECOMMENDATION
H.L. PEREZ-MONTES, UNITED STATES MAGISTRATE JUDGE
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
“Plaintiffs”). Pro se Defendant Donna L.
Kerry(“Kerry”) opposes. (Doc. 17).
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.
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
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.
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.
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).
answered. (Doc. 11). Plaintiffs now seek summary judgment on
their declaratory action. (Doc. 14). Kerry opposes. (Doc.
Law and Analysis
Standards governing the Motion for Summary
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 ...