St. Bernard Parish v. Lafarge North America, Inc. et al
ORDER AND REASONS DENYING 207 Motion to Compel. In summary and to be clear, this is not a ruling that determines whether any former adjudication doctrine or judicial notice applies to this case based upon Judge Duval's findings and conclusion s. Instead, this ruling is that (1) defendant's responses to plaintiff's voluminous requests for admissions are sufficient under Rule 36, and (2) a "motion to compel admissions" is a procedurally improper mechanism to obtain the o rder plaintiff seeks. If defendant seeks to recover particular expenses, it must file a separate motion, no later than May 10, 2016, citing any other legal basis on which it relies; specifying the kinds and amounts sought, supported by all necessary proof and in the manner required by Local Rule 54.2; and noticed for hearing so that plaintiff may have an opportunity to oppose it.Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 4/27/2016. (my)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ST. BERNARD PARISH
LAFARGE NORTH AMERICA, INC. ET AL.
SECTION “B” (2)
ORDER AND REASONS ON MOTION
Plaintiff’s Motion to Compel Admissions, Record Doc. No. 207, is pending before
me. Defendant Lafarge North America, Inc., filed a written opposition memorandum.
Record Doc. No. 211.
In this case, plaintiff seeks to recover for damage to a large number of properties
allegedly caused when defendant’s barge broke through a floodwall resulting in flooding
during Hurricane Katrina. Plaintiff pursues this “motion to compel admissions” expressly
as a means of “asking the Court to apply the doctrine of collateral estoppel to the case-atbar.” Record Doc. Nos. 207 at p. 1 and 207-7 at p. 16. It argues that defendant’s
objections to and/or denials and partial admissions of some of plaintiff’s 138 Rule 36
requests for admissions are “belied by the findings of fact and conclusions of law” entered
by Judge Duval in the Katrina Consolidated Litigation, C.A. No. 05-4182. Plaintiff also
argues that defendant’s Rule 36 responses were “served in violation of Fed. R. Civ. Pro.
11.” Record Doc. No. 207-7 at p. 24. This odd motion is erroneous and cannot be granted
essentially for three reasons.
First, there is no such thing as a “motion to compel admissions” under the Federal
Rules of Civil Procedure. While a Rule 36 request for admissions is a discovery device, it
is not one of the discovery devices for which Rule 37 provides a “motion to compel” as the
means of enforcement. See Fed. R. Civ. P. 37(a)(3)(B) (providing that “[a] party may
move for an order compelling” discovery responses, but only under discovery Rules 30, 31,
33 and 34, with no mention of other discovery under Rules 35 and 36). Instead, as to Rule
36, a “requesting party may move to determine the sufficiency of an answer or objection”
(emphasis added). Plaintiff’s motion makes no express request for such a determination.
Instead, the stated relief sought by the motion is “for this court to enter an Order finding
that the doctrine of collateral estoppel applies and that [defendant’s] denials of [plaintiff’s
requests for admissions] are improper.” Record Doc. No. 207-7 at p. 28. In any event, to
whatever extent, if any, that plaintiff may be moving to determine the sufficiency of
defendant’s Rule 36 responses, it is without merit. All of defendant’s objections are wellfounded and sustained. Fed. R. Civ. P. 36(a)(5). Moreover, by responding subject to its
objections, including clearly denying some of the requests, while admitting part and
qualifying or denying the rest of others, all with adequate explanations, defendant has
responded in the manner expressly contemplated by Fed. R. Civ. P. 36(a)(4).
Second, the preclusive doctrines of prior adjudication, including claim preclusion
(res judicata) and issue preclusion (collateral estoppel), are affirmative claims or defenses,
see, e.g., Fed. R. Civ. P. 8(c)(1), as to which the party asserting them bears the burden of
proof. Thus, if a party seeks a pretrial order applying such a doctrine to its claims or its
opponent’s defenses, as plaintiff seeks to do in this case, it must do so, not in a nondispositive discovery-related “motion to compel” asserting alleged discovery response
insufficiencies, but via dispositive motion for summary judgment or, perhaps, to dismiss.
See, e.g., Webb v. Town of St. Joseph, 560 Fed. Appx. 362, 365-66 n. 4 (5th Cir. 2014)
(questioning district court’s imposition of preclusive effect of res judicata doctrine in a
motion to dismiss, when it should have been treated under summary judgment standards;
“The rule of res judicata encompasses two separate but linked preclusive doctrines: (1) true
res judicata or claim preclusion and (2) collateral estoppel or issue preclusion. . . . Further,
‘the party urging res judicata has the burden of proving each essential element by a
preponderance of the evidence.’”) (citing and quoting Test Masters Educ. Servs, Inc. v.
Singh, 428 F.3d 559, 570-71 (5th Cir. 2005), and St. Paul Mercury Ins. Co. v. Williamson,
224 F.3d 425,437 (5th Cir. 2000)); Rain CII Carbon LLC v. Phillips 66 Co., 2013 WL
5506144, *4 (E.D. La. Sept. 30, 2013) (Berrigan, J.) (describing collateral estoppel as “a
variation of res judicata” for purposes of its assertion via dispositive motion to dismiss or
for summary judgment). Plaintiff has not borne its evidentiary burden on this nondispositive discovery motion.
Similarly, if plaintiff seeks to have the court take judicial notice of adjudicative facts
for dispositive purposes, as it seems to argue in connection with some of the subject
requests for admissions, e.g., Record Doc. No. 207-1 at pp. 8-9, it must do so via motion
in limine, since judicial notice of adjudicative facts is a matter of evidence law, Fed. R.
Evid. 201, not discovery procedure.
Third, plaintiff’s Rule 11 argument is misplaced and inapposite because Rule 11
“does not apply to . . . discovery requests, responses, objections and motions under Rules
26 through 37.” Fed. R. Civ. P. 11(d).
In short, I find no deficiency in defendant’s Rule 36 responses and no basis on which
plaintiff might be entitled to imposition of the issue dispositive doctrine of collateral
estoppel flowing from this discovery motion. For all of the foregoing reasons, the motion
is DENIED. In summary and to be clear, this is not a ruling that determines whether any
former adjudication doctrine or judicial notice applies to this case based upon Judge
Duval’s findings and conclusions. Instead, this ruling is that (1) defendant’s responses to
plaintiff’s voluminous requests for admissions are sufficient under Rule 36, and (2) a
“motion to compel admissions” is a procedurally improper mechanism to obtain the order
Defendant’s opposition memorandum requests an award of attorney’s fees and costs
incurred in responding to this motion. To whatever limited extent this motion seeks to
determine the sufficiency of defendant’s Rule 36 responses and objections, “Rule 37(a)(5)
applies to an award of expenses.” Fed. R. Civ. P. 36(a)(6). Otherwise, some other legal
basis for such an award must be provided. If defendant seeks to recover particular
expenses, it must file a separate motion, no later than May 10, 2016, citing any other legal
basis on which it relies; specifying the kinds and amounts sought, supported by all
necessary proof and in the manner required by Local Rule 54.2; and noticed for hearing so
that plaintiff may have an opportunity to oppose it.
New Orleans, Louisiana, this _________ day of April, 2016.
JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE
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