Dufrene v. American Tugs, Inc.

Filing 75

ORDER AND REASONS: IT IS HEREBY ORDERED that 69 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court is DENIED and the Order of the Magistrate Judge is AFFIRMED. Signed by Judge Mary Ann Vial Lemmon on 1/31/2019. (ajn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANNE DUFRENE, INDIVIDUALLY
AND AS THE PERSONAL
REPRESENTATIVE OF CAREY C.
DUFRENE

CIVIL ACTION

VERSUS

NO: 18-554

AMERICAN TUGS, INC.

SECTION: "S" (3)

ORDER AND REASONS
IT IS HEREBY ORDERED that the Motion for Appeal/Review of Magistrate's
Judge's Order (Rec. Doc. 69) is DENIED, and the Order of the Magistrate Judge (Rec. Doc.
65) is AFFIRMED.
FACTUAL & PROCEDURAL BACKGROUND
This matter arises out of the death of plaintiff's husband, Carey Dufrene, aboard the M/V
AMAZING GRACE, an inland river towing vessel operated by American Tugs.1 Defendant,
American Tugs, Inc., appeals the magistrate judge's order awarding a sanction of attorneys' fees
to plaintiff's counsel, following her successful second Motion to Compel.
The record reflects that plaintiff served her first set of Requests for Production of
Documents on defendant on June 19, 2018. Defendant provided responses to this request on July
31, 2018, and supplemental responses on August 7, 2018 and August 20, 2018. Plaintiff's

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More detailed facts are set forth in the Magistrate's Order, and are hereby incorporated
by reference.

counsel deemed the responses incomplete, and made several attempts to obtain complete
responses. On August 9, 2018, plaintiff filed her first Motion to Compel (Rec. Doc. 18)
regarding several of defendant’s responses to the first round of discovery requests, for which
responses were either incomplete or for which defendant had withheld responsive information
and documents.
Plaintiff served second and third sets of Requests for Production of Documents upon
defendant on July 18, 2018 and September 6, 2018. As of September 6, defendant had failed to
supplement discovery requests included in plaintiff’s first set of discovery, which had not been
included in the initial Motion to Compel. Defendant provided responses to the second and third
sets of discovery on September 28, 2018, which were also deficient. Beginning September 6,
2018, plaintiff's counsel made numerous attempts to obtain supplemental discovery responses,
including a letter dated September 6, 2018, emails dated September 25 and September 28, 2018,
an October 1, 2018 telephone conversation (in which she extended defense counsel more time to
respond), and an email on October 15, 2018. These attempts were fruitless. Accordingly, on
November 15, 2018, plaintiff filed her second Motion to Compel Defendant to Respond to
Discovery and for Sanctions. Rec. Doc. 51.
Two weeks later, on November 27, 2018, defendant finally produced supplemental
responses to plaintiff’s first, second, and third sets of discovery. One of the discovery responses
was still incomplete.
On December 10, 2018, former U.S. Magistrate Judge Knowles granted in part plaintiff’s
first Motion to Compel. Rec. Doc. 62. Plaintiff did not seek an award of sanctions in connection
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with that motion.
On December 18, 2018 the magistrate judge granted in part plaintiff's second Motion to
Compel and for Sanctions, and ordered defendant to provide discovery which was still
outstanding, within seven days from the order. The magistrate judge specifically noted that
plaintiff’s counsel had attempted to obtain discovery from defendant before involving the court,
that defendant provided plaintiff with the majority of the requested documents only after plaintiff
filed her second Motion to Compel, that there was no evidence that defendant’s failure to
provide supplemental discovery responses was substantially justified, and that there was no
evidence that an award of sanctions against defendant would be unjust in this circumstance. Rec.
Doc. 65.
APPLICABLE LAW
A. Standard of Review
“The Federal Magistrates Act grants district courts authority to assign magistrates certain
described functions as well as such additional duties as are not inconsistent with the Constitution
and laws of the United States.” Peretz v. United States, 501 U.S. 923 (1991) (internal quotation
and footnote citation omitted). Pursuant to 28 U.S.C. § 636(b)(1)(A), a district judge may
designate a magistrate judge to hear any pretrial matter pending before the court, with a few
exceptions. The district judge reviews the magistrate judge's orders on non-dispositive pretrial
matters assigned under subparagraph A on a clearly erroneous or contrary to law standard. 28
U.S.C. § 636(b)(1)(A); see Perales v. Sasilla, 950 F.2d 1066, 1070 (5th Cir.1992). This highly
deferential standard requires the court to affirm the decision of the magistrate judge unless “on
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the entire evidence [the court] is left with a definite and firm conviction that a mistake has been
committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
B. Rule 37 of the Federal Rules of Civil Procedure
Rule 37 of the Federal Rules of Civil Procedure provides for sanctions for the failure to
participate in discovery. If a party fails to respond to a valid discovery request, the party
requesting the discovery may move for an order compelling disclosure of discovery. Fed. R. Civ.
P. 37(a)(1). If the motion is ultimately granted, or if the requested disclosure or discovery is
provided only after the filing of the motion to compel,
the court must, after giving an opportunity to be heard, require the party or
deponent whose conduct necessitated the motion, the party or attorney advising
that conduct, or both to pay the movant's reasonable expenses incurred in making
the motion, including attorney's fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain
the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was
substantially justified; or
(iii) other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5)(A).
DISCUSSION
As the facts set forth above demonstrate, defendant did not comply with discovery until
plaintiff filed her second Motion to Compel. As noted by the magistrate judge in his order, the
correspondence provided by plaintiff's counsel reflects her efforts to resolve the discovery
deficiencies between counsel prior to involving the court. Notably, as of the time the magistrate

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judge issued his order granting plaintiff's motion, defendant had still not fully complied with its
discovery obligation. Specifically, it had not provided a complete response for RFP 16, included
in plaintiff's first discovery request in June 2018, seeking documents related to plaintiff's fringe
benefits. Nor has the defendant come forward with a convincing argument that its failure to
timely and reasonably respond to discovery was substantially justified, except to argue that it
was due to relevance objections or that it was not in possession of the documents. However,
many of the withheld documents were not subject to relevancy objections, and the ultimate
production of others belies the argument that defendant did not possess them. For example, there
was no relevance objection to RFP 16, and whatever documentation existed can only have been
in defendant's possession. On this record, and applying the straightforward language of Federal
Rule of Civil Procedure 37, the court finds the magistrate judge's ruling was not clearly
erroneous or contrary to law.
Finally, with respect to plaintiff's contention that review of the magistrate judge's Order
is premature because the Order did not include a specific fee amount, defendant was required to
file any objections to the Order within 20 days. The fee amount had not been fixed as of then, but
that does not prevent the court from considering whether an award of sanctions was clearly
erroneous or contrary to law.
Accordingly, the Order of the United States magistrate judge is AFFIRMED, and this

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matter is REFERRED to the newly-assigned magistrate judge for determination of attorneys' fees
due.

New Orleans, Louisiana, this _____ day of January, 2019.
31st

____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE

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