Zen-Noh Grain Corporation v. Consolidated Environmental Management, Inc./Nucor Steel Louisiana
Filing
233
ORDER AND REASONS denying 197 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION and affirms the magistrate judge's order.. Signed by Chief Judge Sarah S. Vance on 8/19/13. (Reference: 12-1738)(jjs, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CONSOLIDATED ENVIRONMENTAL
MANAGEMENT, INC.
CIVIL ACTION
VERSUS
NO: 12-1011 c/w
12-1738
ZEN-NOH GRAIN CORPORATION
SECTION: R
ORDER AND REASONS
Plaintiff Consolidated Environmental Management, Inc. Nucor Steel Louisiana ("Nucor") moves to modify or set aside the
magistrate judge's order of June 25, 2013 denying its motion to
compel discovery of documents relating to the relationship
between defendant Zen-Noh Grain Corporation ("Zen-Noh") and
various corporate entities (collectively referred to as "CGB").1
For the following reasons, the Court denies Nucor's motion and
affirms the magistrate judge's order.
I.
BACKGROUND
On May 30, 2013, Nucor filed a motion to compel responses to
requests for production Nos. 17 and 19 of its First Request for
Production of Documents.2 At issue here is the magistrate judge's
denial as to request No. 19, which sought documents relating to
the relationship between Zen-Noh and CGB. In its motion to
1
R. Doc. 197-1; R. Doc. 191.
2
R. Doc. 173.
compel, Nucor argued that the documents were relevant to its
claim that Zen-Noh's facility constituted a major source of
emissions under the Clean Air Act ("CAA") and was therefore
required to obtain Title V and PSD permits.3 Nucor asserted:
Whether Zen-Noh is required to possess a PSD permit
hinges on whether the emissions rise to the level of a
major source. Thus, CEMI is entitled to learn the
relationship between Zen-Noh and potential affiliated
entities to determine whether the multiple emissions
sources should have been combined and treated as a
single stationary source when calculating potential
emissions in a permit application and whether these
potential emissions rose to the level of a “major
source” of air pollution requiring Zen-Noh to first
obtain a Title V and PSD operating permits . . . .
Id. Among other objections, Zen-Noh contended that "[t]here
[were] no allegations in the Amended Complaint relating to any of
the identified entities or to Zen-Noh's financial condition."4
Nucor filed a reply to Zen-Noh's opposition in which it argued
that because both the PSD and Title V programs allow for
aggregation of adjacent sources in determining whether a facility
is a "major source" under the CAA, its aggregation theory was
inherently included within its allegations in the amended
complaint that Zen-Noh's grain elevator constituted a major
source.5
3
R. Doc. 173-1 at 4.
4
R. Doc. 173 (Exhibit C at 25).
5
R. Doc. 183 at 4.
2
On June 26, 2013, the magistrate judge denied the motion to
compel a response to request No. 19, noting Nucor's failure to
discuss aggregation or the CGB entities in the 38-page amended
complaint.6
Because Nucor had ample time to properly frame its
allegations against Zen-Noh in the three months between filing
the original and amended complaints, the magistrate judge
determined that "notwithstanding Fed. R. Civ. P. 8(a), Nucor
should have included reference to the aggregation allegations in
the amended complaint."7
This motion to review the magistrate judge's decision
followed on July 9, 2013.8 Shortly thereafter, this Court granted
Zen-Noh's motion to dismiss Counts I-III, Count V, and Counts
VII-IX of Nucor's nine-count amended complaint.9 The Court
dismissed Count I, which alleged that Zen-Noh violated Title V of
the CAA by operating without a Part 70 operating permit, for
failure to comply with the CAA citizen suit provision's notice
requirements.10 Count VII, which alleged that Zen-Noh was
6
R. Doc. 191.
7
Id. at 5.
8
R. Doc. 197.
9
R. Doc. 206.
10
Id. at 18-24.
3
operating without a required PSD permit, was dismissed as being
barred by the statute of limitations.11
II.
NUCOR'S MOTION TO SET ASIDE THE MAGISTRATE JUDGE'S ORDER IS
MOOT.
Upon dismissal of a plaintiff's claim, an outstanding motion
to review a magistrate judge's order denying discovery on that
claim may be denied as moot. See Carr v. Edwards, No. 94-1280,
1994 WL 419856, at *1 (E.D. La. Aug. 8, 1994) (denying as moot
plaintiff's motion to review a magistrate's order denying
discovery after granting the defendant's motion to dismiss); see
also In re Katrina Canal Breaches Consol. Litig., No. 05-4182,
2008 WL 4565939, at *1 (E.D. La. Oct. 8, 2008) (denying as moot
plaintiffs' motion to review the magistrate judge's grant of a
protective order when the discovery sought was relevant only to
plaintiffs' motions to disqualify the presiding judge and
opposing counsel, and those motions had been decided by the court
without any need for the discovery).
A district court retains this discretion even if some of the
plaintiff's claims survive a motion to dismiss and judgment has
not yet been entered. See McLean v. Int'l Harvester Co., 817 F.2d
1214, 1223-24 (5th Cir. 1987) (finding no abuse of discretion
where district judge dismissed all but one of plaintiff's claims
and then denied his pending deposition requests as moot); Beer
11
Id. at 33-36.
4
Nuts, Inc. v. King Nut Co., 477 F.2d 326, 330 (6th Cir. 1973)
(affirming denial of interrogatories and requests for admission
after grant of partial summary judgment resolved all material
issues to which proposed discovery was relevant).
Nucor argues that Request No. 19 is relevant to ascertain
whether CGB and Zen-Noh's emissions should be aggregated before
determining whether Zen-Noh's facility is a major source
requiring Title V and PSD permits.
This Court has dismissed
Counts I and VII of Nucor's amended complaint relating to ZenNoh's failure to obtain the Title V and PSD permits. Moreover,
the grounds for those dismissals–inadequate notice in Count I,
and the statute of limitations in Count VII–were entirely
unrelated to the issue of whether Zen-Noh's facility constituted
a major source for the purposes of the Title V and PSD programs.
To the extent that Request No. 19 was directed at obtaining
information in support of Counts I and VII, Nucor's motion to set
aside the magistrate judge's order is now moot.
To the extent that Nucor's discovery requests are in any way
relevant to Counts IV and VI of the amended complaint, the only
two claims that survived the motion to dismiss, the magistrate
judge's decision to deny the motion to compel a response was not
clearly erroneous.
5
III. STANDARD
Federal law affords a magistrate judge broad discretion in
the resolution of nondispositive discovery disputes. See Fed. R.
Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A). If a party is
dissatisfied with a magistrate judge's ruling, it may timely file
an objection with the district judge, who may modify or set aside
any part of the order “where it has been shown that the
magistrate judge's order is clearly erroneous or contrary to
law.” Id.; Fed. R. Civ. P. 72(a); see also Castillo v. Frank, 70
F.3d 382, 385 (5th Cir. 1995). A finding is clearly erroneous
when a reviewing court is “left with the definite and firm
conviction that a mistake has been committed.” United States v.
Stevens, 487 F.3d 232, 240 (5th Cir. 2007) (quoting United States
v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
IV.
THE MAGISTRATE JUDGE'S DECISION WAS NOT CLEARLY ERRONEOUS
Nucor argues that notice of the aggregation theory was
implied by its allegation that Zen-Noh's facility qualified as a
major source, because the relevant Title V provision defines
major sources to include "any stationary source (or group of
stationary sources located within a contiguous area and under
common control). . . ." 42 U.S.C. § 7661(2)(emphasis added).
Nucor cites to § 7661(2) in the amended complaint and
alleges throughout that Zen-Noh's facility constitutes a major
source for Title V and PSD purposes.
6
However, the complaint is
devoid of any factual allegations that would put Zen-Noh on
notice of Nucor's aggregation theory. At no point in the 38-page
amended complaint did Nucor refer to the CGB entities or suggest
that Zen-Noh's emissions should be aggregated with those of any
other entity. A plaintiff must do more than cite to laws that may
have been violated by the defendant and must plead with
sufficient particularity to put the defendant on notice of the
conduct that it must defend in a court of law.
Anderson v. U.S.
Dept. of Housing and Urban Development, 554 F.3d 525, 528-29 (5th
Cir. 2008).
Allegations of one course of conduct–here, that Zen-
Noh's facility standing alone produced sufficient emissions to
qualify as a major source–will not serve as notice that a party
must defend an entirely different course of conduct, such as that
alleged by Nucor in its quest for discovery on the aggregation
issue.
See id. at 529; see also Oreman Sales, Inc. v. Matsushita
Elec. Corp. of Am., 768 F. Supp. 1174, 1180 (E.D. La. 1991) ("[A]
plaintiff may no longer file a conclusory complaint not wellgrounded in fact, conduct a fishing expedition for discovery, and
only then amend its complaint in order finally to set forth wellpleaded allegations.").
Nucor provides nothing to contradict the magistrate judge's
finding that it failed to include any reference to aggregation or
7
the CGB entities in the amended complaint.12 Instead, Nucor
simply disagrees with the magistrate judge's conclusion that the
mere citation to § 7661(2) was insufficient to put Zen-Noh on
notice of the aggregation theory. Nucor's conflicting
interpretation does not render the magistrate judge's order
clearly erroneous or contrary to law. Finding no clear error in
the order, this Court denies Nucor's motion.
IV.
CONCLUSION
For the foregoing reasons, Nucor's motion is DENIED.
New Orleans, Louisiana, this 19th day of August, 2013.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
12
Nucor's memorandum in support of its motion cites three
instances in the amended complaint in which it alleges that ZenNoh failed to include emissions from other sources in its
calculations. R.Doc. 197-1 at 6. However, these allegations
involve the failure to include emissions from other sources at
the Zen-Noh facility rather than from CGB or any other entity.
8
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