XL Specialty Insurance Company v. Bollinger Shipyards, Inc. et al
ORDER AND REASONS overruling Bollinger's objections 169 to Judge Wilkinson's ruling on its motion to compel. Signed by Chief Judge Sarah S. Vance on 5/21/14. (Reference: ALL CASES) (NEF: Mag 2)(jjs)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
XL SPECIALTY INSURANCE COMPANY
BOLLINGER SHIPYARDS, INC., ET AL.
ORDER AND REASONS
Bollinger1 objects to Magistrate Judge Wilkinson's order2
denying Bollinger's Motion to Compel Complete Discovery Responses3
and imposing sanctions on Bollinger for having filed the motion.
Because Judge Wilkinson's ruling was neither clearly erroneous nor
contrary to law, the Court overrules Bollinger's objection and
affirms Judge Wilkinson's order.
This is an insurance dispute between Bollinger and XL
Specialty Insurance Company regarding whether XL owes Bollinger the
costs that Bollinger incurred in defending against a False Claims
Act lawsuit. The factual and procedural history of this suit has
been described elsewhere4 and will not be repeated here.
"Bollinger" refers collectively to Bollinger Shipyards,
Inc., Bollinger Shipyards Lockport, L.L.C., and Halter Bollinger
Joint Venture, L.L.C.
R. Doc. 166.
R. Doc. 155.
See, e.g., XL Specialty Ins. Co. v. Bollinger Shipyards
Inc., No. 12-2071, 2013 WL 31648 (E.D. La. Jan. 3, 2014).
On February 28, 2014, XL responded to a request for production
of documents propounded by Bollinger as follows:
REQUEST FOR PRODUCTION NO. 2
Please produce any and all insurance policies that
you have issued to any Bollinger entity and/or
which may have covered any Bollinger entity during
the year 2000 or the year 2001.
RESPONSE TO REQUEST NO. 2
XL objects to this Request because it is overly
information that is equally available to [Bollinger], and
seeks irrelevant information that is not reasonably
calculated to lead to the discovery of admissible
evidence. Subject to this objection and [the General]
Objections noted above, and reserving all rights, XL
answers Request for Production No. 2 as follows: please
see records of XL, produced herein and Bates numbered as
XL 01232 to XL01313. XL has conducted a thorough search
of its records, and has produced all documents in its
possession, custody, or control that are responsive to
Request for Production No. 2.5
XL's production in response to Request No. 2 included a 20012002 insurance policy. On March 7, 2014, Michael Wawrzycki, counsel
for Bollinger, e-mailed Abigayle Farris, counsel for XL, asking XL
to supplement its production with a 2000-2001 insurance policy.6
Farris responded that XL had no additional documents in its
possession that were responsive to Request No. 2.7 On March 27,
overlooked the [2000-2001] policy when responding to Bollinger's
R. Doc. 155-5 at 2-3.
R. Doc. 155-6 at 2.
Id. at 1.
requests to produce a copy of same."8 "Surely," Wawrzycki wrote,
"if XL issued the policy, it has a copy of it."9 On April 10,
Farris responded and "reiterate[d] that XL has thoroughly searched
its records, and no longer has a copy of the policy [Bollinger]
Five days later, Bollinger filed a "Motion to Compel Complete
Discovery Responses" from XL.11 Bollinger noted that XL had admitted
that the 2000-2001 policy exists, yet had "refused to produce" it.12
XL responded that it had told Bollinger repeatedly that it did not
have any other documents in its possession that were responsive to
request No. 2.13 XL also requested sanctions against Bollinger
pursuant to Federal Rule of Civil Procedure 37(a)(5)(B).14
Bollinger's motion to compel. Judge Wilkinson noted that Bollinger
had produced no evidence suggesting that XL's statement that it did
not have further responsive documents was false.15 After confirming
R. Doc. 158-2 at 1.
R. Doc. 155.
R. Doc. 155-1 at 1.
R. Doc. 158 at 1.
Id. at 8.
R. Doc. 169-3 at 5.
that XL persisted in its request for sanctions pursuant to Rule
37(a)(5)(B), Judge Wilkinson ruled as follows:
DENIED. Although the objections [to Request No. 2] are
overruled, the response, signed pursuant to Fed. R. Civ.
P. 26(g), which certification Bollinger has in no way
rebutted with any evidence, is completely sufficient.
This motion was not substantially justified. Accordingly,
Bollinger’s counsel, Robert S. Reich, who signed this
unnecessary motion, must pay XL $2,470.00 to reimburse it
for the fees it incurred in defending this motion, at the
rates and for the time outlined by its counsel during
today’s hearing. Fed. R. Civ. P. 37(a)(5)(B).16
Judge Wilkinson stated on the record that counsel for Bollinger had
a history of filing frivolous discovery motions.17
Bollinger timely filed an objection to Judge Wilkinson's
With certain exceptions not applicable here, a magistrate
judge may hear and determine any pretrial matter pending before a
district court. 28 U.S.C. § 636(b)(1)(A). The district court will
affirm the magistrate judge's decision on any nondispositive matter
unless it is "clearly erroneous or contrary to law." Id.; Fed. R.
Civ. P. 72(a). Under this highly deferential standard, the court
will reverse only when "on the entire evidence [it] is left with a
definite and firm conviction that a mistake has been committed."
R. Doc. 166 (emphasis in original).
R. Doc. 169-3 at 7.
R. Doc. 169.
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Spencer
v. Hercules Offshore, Inc., Civil Action No. 13-4706, 2014 WL
1681736, at *2 (E.D. La. Apr. 28, 2014). The discovery order at
issue here is a "non-dispositive matter" that is subject to review
under the clearly erroneous standard. See Merritt v. Int'l Bhd. of
Boilermakers, 649 F.2d 1013, 1016-18 (5th Cir. 1981); accord Guidry
v. Jen Mar. L.L.C., No. Civ.A.03-0018, 2004 WL 595224, at *2 (E.D.
La. Mar. 24, 2004).
Bollinger argues that Judge Wilkinson's order denying its
motion was clearly erroneous. Bollinger further contends that Judge
Wilkinson should not have awarded sanctions to XL because Bollinger
had a good faith belief that its motion was meritorious and because
Judge Wilkinson overruled XL's objections to Request No. 2.
Bollinger is wrong on all counts. "A party need not produce
documents or tangible things that are not . . . within its
control." Hagenmeyer N. Am., Inc. v. Gateway Data Scis. Corp., 222
F.R.D. 594, 598 (E.D. Wis. 2004) (citing Norman v. Young, 422 F.2d
470 (10th Cir. 1970)). "In the face of a denial by a party that it
has possession, custody or control of documents, the [requesting]
party must make an adequate showing to overcome this assertion."
Id. (alteration in original) (quoting Bank of N.Y. v. Meridien BIAO
Bank Tanzania Ltd., 171 F.R.D. 135, 147 (S.D.N.Y. 1997)). Here, XL
told Bollinger -- not once, not twice, but three times -- that it
did not have within its control a copy of the 2000-2001 policy.
Bollinger has produced no evidence that XL's representation on this
score is inaccurate. Accordingly, Judge Wilkinson correctly ruled
that Bollinger's motion to compel was without merit.
Under Federal Rule of Civil Procedure 37(a)(5)(B), if the
court denies a motion to compel disclosure or discovery, it "must,
after giving an opportunity to be heard, require the movant, the
attorney filing the motion, or both to pay the party . . . who
opposed the motion its reasonable expenses incurred in opposing the
substantially justified or other circumstances make an award of
expenses unjust." Bollinger protests that an award under this
section is inappropriate because "the Court ruled in Bollinger's
favor on the objections to XL's response."19 The Court is not
persuaded. Bollinger did not move the Court to overrule XL's
objections to Request No. 2; Bollinger moved the Court to compel XL
to produce the 2000-2001 policy and to pay the costs and attorneys'
fees Bollinger incurred in bringing the motion to compel. Judge
Wilkinson did neither. Bollinger's motion was unsuccessful in every
respect. Accordingly, Judge Wilkinson's ruling that attorneys' fees
were warranted under Rule 37(a)(5)(B) was not contrary to law or
R. Doc. 169-1 at 4.
For the foregoing reasons, the Court overrules Bollinger's
objections to Judge Wilkinson's ruling on its motion to compel.
New Orleans, Louisiana, this 21st day of May, 2014.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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