Fucich Contracting, Inc. v. Shread-Kuyrkendall and Associates, Incorporated et al

Filing 525

ORDER & REASONS denying 492 Motion in Limine to exclude all evidence and testimony related to, derived from, contained in, or extrapolated from documents not produced in discovery; denying 501 Motion to Strike for the reasons stated herein. Signed by Judge Barry W Ashe on 1/8/2021. (mm)

Case 2:18-cv-02885-BWA-KWR Document 525 Filed 01/08/21 Page 1 of 7

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

FUCICH CONTRACTING, INC., et al.

CIVIL ACTION

VERSUS

NO. 18-2885

SHREAD-KUYRKENDALL &
ASSOCIATES, INC., et al.

SECTION M (4)

ORDER & REASONS
Before the Court is the motion in limine of defendant St. Bernard Parish Government
(“SBPG”) to preclude all testimony and evidence related to, contained in, derived from, or
extrapolated from documents not produced in discovery related to the losses of Fucich Contracting,
Inc. (“FCI”).1 Travelers Casualty and Surety Company of America (“Travelers”)2 and FCI3 oppose
the motion. SBPG replies in further support of its motion.4 Having considered the parties’
memoranda, the record, and the applicable law, the Court issues this Order & Reasons denying the
motion in limine.
I.

BACKGROUND
This case arises out of a construction dispute over a component-compatibility problem,

specifically, a rotational conflict, between the engines and gear reducers intended for use in backup storm water drainage pumps critical to a public works improvement project known as the Lake
Borgne Basin Levee District Pump Station #1 & #4 Pump Upgrade (the “Project”).5 SBPG hired

1

R. Doc. 492. FCI filed a motion to strike SBPG’s motion in limine as untimely on the theory that it actually
seeks to limit expert testimony and the deadline for any such motion has long since passed. R. Doc. 501. SBPG,
together with Shread-Kuyrkendall & Associates, Inc. (“SKA”) and XL Specialty Insurance Company, opposes the
motion. R. Docs. 506 & 509. FCI replies in further support of its motion. R. Doc. 516. As an exercise of its discretion,
the Court denies the motion to strike, deciding instead to resolve SBPG’s motion in limine on the merits.
2
R. Doc. 500.
3
R. Doc. 503.
4
R. Doc. 511.
5
R. Doc. 373 at 1-4.

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FCI as the Project contractor and SKA as the Project engineer. Pursuant to the Louisiana Public
Works Act, Travelers issued a performance and payment surety bond naming FCI as principal and
SBPG as obligee.6 In connection with this bond, FCI and the Fuciches (together, the “Fucich
Parties”) executed a general agreement of indemnity (“GAI”) in favor of Travelers, agreeing to
indemnify Travelers from loss and to deposit collateral if needed to compensate for any loss or
anticipated loss.7
When the rotational conflict became apparent, SBPG informed Travelers that it intended
to terminate FCI.8 FCI filed this lawsuit against SBPG and SKA, and SBPG did, in fact, terminate
FCI several months later.9 SBPG filed a counterclaim and third-party demand seeking to hold FCI
and SKA responsible for the rotational conflict and resulting failure to complete the Project.
Travelers completed an independent investigation in which it concluded that the rotational conflict
was caused by SKA.10 As a result, Travelers found that FCI did not have a duty to finish the
Project.11 Since FCI, as Traveler’s principal, did not (in its opinion) have a duty to finish the
Project, Travelers, as surety, refused to complete the Project.12 SBPG then added Travelers to the
lawsuit.13 Given the claims against FCI, Travelers sought to have the Fucich Parties provide it
with collateral security. Pursuant to the collateral and indemnity provision in the GAI, this Court
ordered the Fucich Parties to provide Travelers with $2,563,930.00 as collateral security.14
Thereafter, FCI filed a claim against Travelers for bad-faith breach of the GAI.15

6

R. Docs. 431 at 2.
Id.
8
Id.
9
Id.
10
Id.
11
Id.
12
Id.
13
Id.
14
R. Docs 184; 224.
15
R. Doc. 431 at 2.
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Over the course of this case, SBPG propounded several discovery requests to FCI and
Travelers.16 Travelers17 and FCI18 responded, in some instances with objections, to SBPG’s
requests. SBPG did not raise any issue concerning their responses and has not filed a motion to
compel production. The deadline for all discovery to be completed expired on December 4, 2020.19
II.

PENDING MOTION
SBPG argues that all testimony and evidence related to, contained in, derived from, or

extrapolated from documents not produced in discovery related to FCI’s losses should be
excluded.20 It asserts that the refusal to turn over evidence in response to its discovery requests
was in bad faith.21 Specifically, SBPG states that it is prejudiced because it does not have
documents related to additional expenses incurred and delay damages,22 the claimed loss of
business income,23 the impairment of FCI’s bonding capacity,24 and causation of any impairment
of FCI’s bonding capacity.25
In opposition, Travelers argues that SBPG is trying to remedy its own failure to resolve
discovery disputes before the discovery deadline.26 Travelers notes that SBPG did not contest

16

SBPG sent FCI a first set of interrogatories, requests for production, and requests for admission on May
30, 2019 (R. Doc. 492-4), a second set of requests for production on July 1, 2019 (R. Doc. 492-6), and a second set of
interrogatories and third set of requests for production on August 14, 2019 (R. Doc. 492-8). SBPG sent Travelers a
first set of interrogatories, requests for production, and requests for admission on May 30, 2019 (R. Doc. 492-5), a
second set of requests for production on July 1, 2019 (R. Doc. 492-6), and a second set of interrogatories and third set
of requests for production on August 14, 2019 (R. Doc. 492-7).
17
Travelers sent its responses to SBPG’s first set of interrogatories, requests for production and requests for
admission on July 12, 2019 (R. Doc. 500-1 at 1-11), second set of requests for production of documents on July 31,
2019 (R. Doc. 500-1 at 12-14), and second set of interrogatories and third set of requests for production of documents
on September 17, 2019 (R. Doc. 500-1 at 15-24).
18
R. Doc. 503 at 3.
19
R. Doc. 415 at 2.
20
R. Doc. 492 at 1. In its reply, SBPG limits its relief sought to “exclude such evidence offered by FCI
against SBPG/SKA.” R. Doc. 511 at 1.
21
R. Doc. 492-1 at 2-3.
22
Id. at 7-8.
23
Id. at 8-10.
24
Id. at 10-12.
25
Id. at 12-13.
26
R. Doc. 500 at 2-3.

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Travelers’s timely responses to their discovery requests.27 As a practical matter, Travelers argues
that the motion should be dismissed as “impermissibly vague and overbroad.”28 In its opposition,
FCI first argues that the motion should be stricken as untimely, essentially for the same reasons
urged in its motion to strike.29 FCI also argues that SBPG has not demonstrated that it is entitled
to the expansive relief it seeks.30 In addition, FCI asserts that even were the Court inclined to grant
the motion to dismiss, SBPG’s “open-ended” discovery questions cannot provide a standardized
baseline for ascertaining what was requested in discovery, and therefore, cannot show on a
categorical basis what should be excluded.31
III.

LAW & ANALYSIS
SBPG urges the Court to sanction FCI and Travelers by precluding them from presenting

any evidence relating to a broad range of documents it says were not produced in discovery. SBPG
argues that sanctions are available under Rules 16(f) and 37 of the Federal Rules of Civil
Procedure.32 Rule 16 authorizes courts to issue sanctions “if a party or its attorney … fails to obey
a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f)(1)(C). But SBPG does not state how
FCI or Travelers has violated a scheduling or other pretrial order. Instead, SBPG’s main
contention is that FCI and Travelers failed to respond fully, in SBPG’s estimation, to its discovery
requests. Therefore, Rule 16(f) provides no basis for the relief SBPG seeks.
Rule 37, on the other hand, outlines the procedure for filing a motion to compel disclosure
or discovery: “On notice to other parties and all affected persons, a party may move for an order
compelling disclosure or discovery. The motion must include a certification that the movant has

27

Id. at 3.
Id. at 6.
29
R. Doc. 503 at 2-3. See supra note 1.
30
R. Doc. 503 at 3-4.
31
Id. at 4.
32
R. Doc. 492-1 at 2.
28

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in good faith conferred or attempted to confer with the person or party failing to make disclosure
or discovery in an effort to obtain it without court action.” Fed. R. Civ. P. 37(a)(1). SBPG did not
file a motion to compel concerning the documents it contends were not produced.
Nevertheless, SBPG now seeks a blanket rule excluding all evidence relating to documents
not produced in discovery. While the Court is mindful of the concerns animating SBPG’s motion,
this is not the time or the means for granting the overbroad protection it seeks. Rule 37(c)(1)
provides that “[i]f a party fails to provide information or identify a witness as required by Rule
26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a
motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”
Therefore, the Federal Rules of Civil Procedure prescribe the means to limit evidence on the basis
of its not having been produced. However, every case SBPG cites in support of its position was
brought seeking the exclusion of particular evidence, not a blanket exclusion. See, e.g., Williams
v. Am. Strategic Ins. Corp., 2014 WL 1246846, at *1 (E.D. La. Mar. 25, 2014) (granting motion
to strike a supplemental expert report and the testimony of a witness when the report and witness
were disclosed just days before the final pretrial conference). Thus, a motion to exclude is
evaluated on the particular circumstances of a party’s failure to produce documents or information.
“Preclusion [of untimely evidence], however, is not automatic or mandatory.” Glass Dimensions,
Inc. ex rel. Glass Dimensions, Inc. Profit Sharing Plan & Tr. v. State St. Bank & Tr. Co., 290
F.R.D. 11, 17 (D. Mass. 2013). Before excluding nondisclosed information from evidence, Rule
37 itself requires a court to weigh whether a party’s failure to provide information was substantially
justified or is harmless. A court typically does so by examining four factors: (1) the importance
of the evidence, (2) the prejudice to the opposing party of including the evidence, (3) the possibility
of curing such prejudice by granting a continuance, and (4) the explanation for the party’s failure

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to disclose. See Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 563-64 (5th Cir.
2004). For example, in one case, the Fifth Circuit vacated a district court’s categorical exclusion
of all evidence not produced by a certain date, concluding that the particular circumstances of
nondisclosure had not been considered by the district court. See Dorsey v. Acad. Moving &
Storage, Inc., 423 F.2d 858, 862 (5th Cir. 1970) (holding that severe sanctions are inappropriate
when noncompliance with a discovery order is due to the party’s inability to comply).
To fashion a blanket rule of exclusion for a whole range of evidence, without considering
either the circumstances of nondisclosure or the four factors, could lead to unintended and unfair
results. See, e.g., Biosafe-One, Inc. v. Hawks, 639 F. Supp. 2d 358, 370 (S.D.N.Y. 2009)
(“Plaintiffs’ [Rule 37] motion instead consists of conclusory and general statements regarding
defendants’ purported noncompliance with their discovery obligations. Such generalities are an
insufficient basis on which the Court can impose sanctions, and plaintiffs’ motion is therefore
denied.”). This is especially true where, as here, SBPG did not first seek a discovery order
compelling the production of documents it says were not disclosed. SBPG itself must understand
the troublesome implications of the categorical approach it advances as it has already attempted to
limit in its reply the scope of the relief it requests.33 At this juncture, prudence dictates that the
Court wait to resolve SBPG’s objections to evidence on a case-by-case basis as they are made in
connection with or at trial.
IV.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Fucich Contracting, Inc.’s motion to strike (R. Doc. 501) is

DENIED.

33

R. Doc. 511 at 1.

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IT IS FURTHER ORDERED that St. Bernard Parish Government’s motion in limine to
preclude all testimony and evidence related to, contained in, derived from, or extrapolated from
documents not produced in discovery related to the losses of Fucich Contracting, Inc. (R. Doc.
492) is DENIED.

New Orleans, Louisiana, this 8th day of January, 2021.
________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE

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