XL Specialty Insurance Company v. Bollinger Shipyards, Inc. et al

Filing 237

ORDER AND REASONS overruling XL's objections 195 to Judge Wilkinson's ruling 190 on its motion for a protective order.. Signed by Chief Judge Sarah S. Vance on 7/15/14. (Reference: ALL CASES)(NEF: Mag 2)(jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
XL SPECIALTY INSURANCE COMPANY

CIVIL ACTION

VERSUS

NO: 12-2071

BOLLINGER SHIPYARDS, INC., ET AL.

SECTION: R(2)

ORDER AND REASONS
XL objects to Magistrate Judge Wilkinson's order denying XL a
protective order or an extension of time to respond to discovery.1
Because Judge Wilkinson's ruling was neither clearly erroneous nor
contrary to law, the Court overrules XL's objection and affirms
Judge Wilkinson's order.
I.

BACKGROUND
This is an insurance dispute between Bollinger2 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 elsewhere3 and will not be repeated here.
The consolidated actions in this case have been pending since
August 2012. Trial is set for November 10, 2014. Relevant here,

1

R. Doc. 190.

2

"Bollinger" refers collectively to Bollinger Shipyards,
Inc., Bollinger Shipyards Lockport, L.L.C., and Halter Bollinger
Joint Venture, L.L.C.
3

See, e.g., XL Specialty Ins. Co. v. Bollinger Shipyards
Inc., No. 12-2071, 2013 WL 31648 (E.D. La. Jan. 3, 2014).

Bollinger filed for summary judgment on December 18, 2013,4 and XL
filed a cross-motion for summary judgment on April 3, 2014.5 The
Court heard oral argument on the motions on July 1, 2014. After
oral argument, the Court took the motions under advisement and upon
XL's request agreed to accept limited post-argument supplemental
briefing, the last of which will be due at the end of this month,
on July 28, 2014.6
On May 6, 2014, when briefing on the motions was almost
complete, Bollinger served XL with a set of interrogatories,
requests

for

Bollinger's

admission,
second

and

production

production

request

requests.7
and

first

This

was

set

of

interrogatories and requests for admission. The request contained
fourteen interrogatories, thirty-three requests for admission, and
ten document production requests.8 On May 13, 2014, XL moved for a
protective order to stay the deadline for responding to the
discovery request until after the Court issued its ruling on the
pending cross-motions for summary judgment.9 In its motion, XL
argued that in the event that the Court disposed of the case on the

4

R. Doc. 88.

5

R. Doc. 142.

6

See R. Doc. 219.

7

See R. Doc. 174-2.

8

Id.

9

R. Doc. 174.
2

motions, there would be no need for any of the requested discovery.
In the alternative, XL requested it be granted a 30-day extension
to reply to the discovery requests, until July 7, 2014. Bollinger
filed an opposition in which it argued that either a stay or a
continuance would prejudice it in its ability to prepare for
trial.10 On May 27, 2014, Judge Wilkinson issued an order denying
XL's motion for a protective order on the ground that XL had not
shown good cause for a stay but granting XL an extension until June
30, 2014 to respond to the discovery request.
XL timely filed an objection to Judge Wilkinson's order.11
While

XL's

objection

was

pending,

this

Court

granted

XL

an

additional two-week extension to respond to the discovery request,
until July 15, 2014.
II.

LEGAL STANDARD
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

10

R. Doc. 178.

11

R. Doc. 195.
3

definite and firm conviction that a mistake has been committed.
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Spencer
v. Hercules Offshore, Inc., Civ. A. 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., Civ. A. No. 03-0018, 2004 WL 595224, at *2
(E.D. La. Mar. 24, 2004).
III. DISCUSSION
A. XL's Objection to the Magistrate Judge's Order
XL argues that Judge Wilkinson's order denying its motion was
clearly erroneous. XL contends that the pending dispositive motions
in the case establish good cause for a protective order staying
discovery. In support of its position, XL cites Fujita v. United
States, 416 F. App'x 400 (5th Cir. 2011), and Landry v. Air Line
Pilots Association International AFL-CIO, 901 F.2d 404 (5th Cir.
1990).
Neither Fujita nor Landry establish that Judge Wilkinson was
clearly erroneous in his determination that XL failed to show good
cause for its requested stay. In Fujita, the Fifth Circuit did
affirm that the district court had good cause to stay discovery
while a summary judgment motion was pending. 416 F. App'x at 402.
In that case, however, defendants had moved for summary judgment
4

solely on the ground that plaintiff had failed to designate his
expert medical witness by the discovery deadline. See id. at 401.
The district court extended the deadline for plaintiff three times,
but

meanwhile

stayed

discovery,

having

rejected

plaintiff's

argument that he needed the discovery in order to secure his
witness. See id. at 401-02. Thus, in Fujita it was clear that the
disposition of the case on summary judgment turned on a single
issue, which would be resolved as soon as the parties reached the
final deadline for plaintiff to produce his witness. Moreover, in
Fujita the plaintiff functionally had control over the resolution
of the summary judgment motion: had he simply produced his expert
witness, the court would have denied summary judgment and the
case–including his discovery requests–would have proceeded. In
contrast, here Bollinger has no control over how the Court will
rule or when the Court will issue an order and reasons on the
cross-motions for summary judgment. Meanwhile, pretrial deadlines
and the trial date continue to approach. Thus, Fujita does not
establish

that

Judge

Wilkinson's

determination

was

clearly

erroneous. and–and
In Landry, defendants moved for summary judgment and
plaintiffs requested and received a courtesy continuance on the
motion. 901 F.2d at 434. During the continuance, plaintiffs
served discovery on defendants. Defendants moved for a protective
order, and the district court held that plaintiffs had failed to

5

rebut defendants' prima facie showing that the particular
discovery sought–multiple depositions–would be "unduly expensive
and burdensome" under the circumstances. Id. at 436.
Specifically, plaintiffs had argued that they needed the
discovery solely because they thought it might help them obtain
"better" evidence for their summary judgment motion. Id. In
contrast, here, Bollinger does not argue that it needs discovery
solely for

the already pending summary judgment motions. Rather,

Bollinger correctly points out that trial is scheduled for the
beginning of November and argues that in the event the case is
not resolved on summary judgment, it will need the discovery as
soon as possible to prepare for trial.12 Judge Wilkinson credited
this argument in his order denying XL's motion for a protective
order, and the Court does not find that he was clearly erroneous
to do so.
IV.

CONCLUSION
For the foregoing reasons, the Court overrules XL's

objections to Judge Wilkinson's ruling on its motion for a
protective order.
New Orleans, Louisiana, this 15th day of July, 2014.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

12

See R. Doc. 178 at 6; R. Doc. 202 at 6.
6