Parkcrest Builders, LLC v. Housing Authority of New Orleans

Filing 387

ORDER and REASONS: ORDERED that 357 Motion to Strike, and Alternatively, Motion for a Protective Order Pertaining to the Request for Production Propounded to Liberty Mutual Insurance Company is GRANTED. Signed by Magistrate Judge Karen Wells Roby on 9/28/2017. (Reference: All Cases)(cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PARKCREST BUILDERS, LLC

CIVIL ACTION

VERSUS

NO:

THE HOUSING AUTHORITY OF NEW
ORLEANS (HANO)

SECTION: “J” (4)

15-1533 c/w
16-14118
16-15849

ORDER AND REASONS
Before the Court is a Motion to Strike, and Alternatively, Motion for a Protective
Order Pertaining to the Request for Production Propounded to Liberty Mutual Insurance
Company by Ted Hebert, LLC (R. Doc. 357) filed by Intervenor, Liberty Mutual Insurance
Company (“Liberty Mutual”). The motion is opposed. R. Doc. 363. The motion was submitted
on August 30, 2017. For the following reasons, the motion to strike is GRANTED.
I.

Background
A.

The Claims

This is a consolidated lawsuit filed by Ted Hebert, LLC (“Ted Hebert”), a subcontractor
retained to provide sewer, water and labor and materials for the Guste III: New Affordable Housing
United Project (the “Guste Project”) and the Florida Avenue New Affordable Housing Units
Project (the “Florida Project”), against Parkcrest Builders, LLC (“Parkcrest”), and Liberty Mutual
Insurance Company (“Liberty Mutual”). R. Doc. 1; R. Doc. 260, p. 1. Parkcrest allegedly retained
Ted Hebert to do the work, but failed to pay the full amount Ted Hebert was owed for work done
on the Guste Project, namely, $500,416.00. R. Doc. 260, p. 1.
Ted Hebert also contends that Parkcrest failed to pay it after accounting for the change
orders and applications for payments, totalling $103,193.08. Ted Hebert notes that Liberty Mutual
had issued a payment and performance bond on the projects to insure their completion, and as a

result, contends that Liberty Mutual is also liable for the remaining sums due on both projects. R.
Doc. 1-2, p. 5.
B.

Liberty Mutual’s Motion to Strike

Liberty Mutual seeks an order striking Request for Production No. 1 because it was
propounded on the discovery deadline, August 1, 2017. Therefore, the discovery, as propounded,
would not be due until August 31, 2017, thirty days after the deadline, and that there is no good
cause for the untimely request. R. Doc. 357.
Ted Hebert concedes that the request was propounded on the deadline, but contends that
answering only one request, although late, is not burdensome. Ted Hebert further contends that
the request only seeks copies of payments Liberty Mutual received from HANO. R. Doc. 363, pp.
1-2.
II.

Standard of Review
Federal Rule of Civil Procedure 34 provide that responses to requests for production are

due within thirty (30) days after service. Fed. R. Civ. P. 34(b)(2).
Under Rule 26(b)(2)(C), discovery may be limited if: (1) the discovery sought is
unreasonably cumulative or duplicative, or is obtainable from another, more convenient, less
burdensome, or less expensive source; (2) the party seeking discovery has had ample opportunity
to obtain the discovery sought; or (3) the burden or expense of the proposed discovery outweighs
its likely benefit.
Rule 26(c) governs the issuances of Protective Orders in discovery. A Court may “for
good cause, issue an order to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). The rule offers a variety of
potential options that the Court may use to protect the moving party, including forbidding the

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disclosure of discovery. Fed. R. Civ. P. 26(c)(1)(A). “The party seeking the protective order bears
the burden to show ‘the necessity of its issuance, which contemplates a particular and specific
demonstration of fact [.]’” Cazaubon v. MR Precious Metals, LLC, 14-2241, 2015 WL 4937888,
at *2 (E.D. La. Aug. 17, 2015). In addition, Rule 26(c) requires a certification that the moving
party has conferred or attempted to confer in good faith with the other affected party to attempt to
resolve the issue without the court's interference. Fed. R. Civ. P. 26(c)(1).
Moreover, Rule 16(b) limits changes in the deadlines set by a scheduling order “only for
good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). To determine if good cause
exists, the Court should consider: (1) the explanation for the failure to timely act; (2) the
importance of the evidence; (3) the potential prejudice in allowing the evidence; and (4) the
availability of a continuance to cure that prejudice. See S & W Enters., L.L.C. v. Southtrust Bank
of Ala., 315 F.3d 533, 535–36 (5th Cir. 2003); Geiserman v. MacDonald, 893 F.2d 787, 791 (5th
Cir. 1990).
III.

Analysis
The Court’s Scheduling Order, as amended, established August 1, 2017, as the deadline

for “completing all discovery.” R. Doc. 190. This was not the deadline for initiating fact discovery.
See Swanner v. Marathon Ashland Petroleum LLC, No. CIV. A. 01-1251, 2002 WL 1837847, at
*1 (E.D. La. Aug. 8, 2002) (finding that “[t]he only conclusion is that Playa Minerals sat on its
rights until the last day for discovery and then served its written discovery. This was too late under
the District Court’s scheduling order and Playa Minerals has not presented good cause for relief
from that order.”); see also Borniski v. Tex. Instruments, Inc., 32 F. Supp. 2d 918, 919 (N.D. Tex.
1998) (overruling plaintiff’s objections to Magistrate Judge’s November 16, 1998, order that

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discovery served on the eve of discovery deadline untimely because “deadline set out in the
scheduling order was for the completion, not the initiation, of discovery”).
Rule 34(b)(2)(A) allows a party thirty (30) days from service to respond to requests for
production. See Thomas v. IEM, Inc., No. 06-886, 2008 WL 695230, at *2 (M.D. La. Mar. 12,
2008) (finding that document requests were untimely as the date for responding “would have fallen
outside the [January 15] discovery deadline (i.e., thirty days from service of the Rule 34 request,
or January 23, 2008)).
Ted Hebert concedes that the request is untimely. In this instance, Rule 16(b)(4) requires
a finding of good cause for the untimely submission. There is no good reason given for the late
submission. Further, there is no suggestion that the information is important, and requiring a
response after the deadline would result in the expenditure of resources unnecessarily even though
the prejudicial effect is unclear at this time. Finally, although the trial has been continued to
February 18, 2018, the discovery deadline remains in place, and thus, a continuance would not
adequately assist in resolving the dispute.
IV.

Conclusion
Accordingly,
IT IS ORDERED that the Intervenor's Motion to Strike, and Alternatively, Motion for

a Protective Order Pertaining to the Request for Production Propounded to Liberty Mutual
Insurance Company by Ted Hebert, LLC (R. Doc. 357) is GRANTED.
New Orleans, Louisiana, this 28th day of September 2017.

KAREN WELLS ROBY
CHIEF UNITED STATES MAGISTRATE JUDGE
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