Bishop et al v. Gill Industries, Ltd et al

Filing 53

AMENDED RULING on 45 MOTION to Compel. Signed by Magistrate Judge Stephen C. Riedlinger on 9/7/2011. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MEL M. BISHOP, ET AL.
CIVIL ACTION
VERSUS
NUMBER 10-124-BAJ-SCR
MAY AND YOUNG HOTEL, L.L.C.,
ET AL.
AMENDED
RULING ON MOTION TO COMPEL DISCOVERY1
Before the court is the plaintiffs’ Motion to Compel.

Record

document number 45. The motion is opposed by defendant May & Young
Hotel, LLC d/b/a West Inn.2
Plaintiffs filed a Petition for Damages and Recognition as a
Class Action in state court to recover damages for personal
injuries resulting from exposure to mold at the Baton Rouge West
Inn

in

Port

Allen,

Louisiana.

Plaintiffs

alleged

that

as

owners/managers of the building the defendants had actual and
constructive knowledge of the water leaks and fungal substances
growing on the building and mold spores being released into the
air.

Plaintiffs asserted that the defendants failed to warn the

occupants/guests of the building of such dangers.

Plaintiffs

sought certification of a class defined as follows;
All

present

and

past

1

guest/occupants/employees/

A Ruling on Motion to Compel discovery was issued August 31,
2011. Record document number 51. This Amended Ruling on Motion to
Compel Discovery supercedes the August 31, 2011 ruling.
2

Record document number 49.

workers who occupied and/or performed work at Baton Rouge
West Inn hotel/public accommodations building from
September, 2005 to the date of their departure from the
building, who were exposed to fungal substance such as
mold and mold spores which were growing on building
materials and the by-products of the mold and mold spores
that were released into the air, and who suffered
injuries as a result of their fungal exposure.3
A Scheduling Order was issued February 7, 2011, applicable to
discovery related to class certification issues.4

A subsequent

Amended Scheduling Order extended the time to complete class
certification fact discovery to July 15, 2011.5

Plaintiff served

the Plaintiffs’ First Set of Class Discovery, which consists of
interrogatories, requests for production of document and request
for admission, on defendant May & Young on May 26, 2011. In its
response,

served

substantive

July

information

13,

2011,

but

also

the

defendant

asserted

interrogatories and document requests.
motion

seeking

to

compel

the

defendant

provided

objections

to

some
some

Plaintiffs filed this
to

respond

discovery requests fully and without objection.

to

their

Plaintiffs also

sought an award of expenses.
Neither the plaintiffs’ motion nor their three-page supporting
memorandum identified any specific interrogatory or request for
production of documents as to which the plaintiffs contend the

3

Record document number 1, Notice of Removal, Exhibit A,
attached Plaintiffs’ First Supplemental and Amending Petition for
Damages and Recognition as a Class Action, ¶ 17 (as amended).
4

Record document number 34.

5

Record document number 42.

defendant’s response is deficient. Instead the plaintiffs referred
to categories of information and documents they sought, and argued
that the defendant’s discovery responses were non-responsive,
incomplete

and/or

insufficient.

Although

the

plaintiffs

supplemented their motion with excerpts from the defendant’s Rule
30(b)(6), Fed.R.Civ.P., deposition, their Motion for Leave to
Supplement Record did not include arguments linking any particular
deposition testimony to any particular discovery response.6
Similarly, the defendant did not identify in its opposition
memorandum any particular contested discovery response.

Defendant

argued that the motion should be dismissed because its financial
and business records are irrelevant to both class certification
issues

and

the

plaintiffs.7

defendant’s

Defendant

liability

to

argued

that

also

the

two

individual

production

of

the

requested documents would impose an undue burden because the
documents requested would pertain to thousands of individuals and
would consist of tens of thousands of pages.
Plaintiffs

have

not

shown

that

any

particular

discovery

6

Plaintiffs supplemented their motion with excerpts from the
defendant’s Rule 30(b)(6) deposition. See record document number
47, Motion for Leave to Supplement Record filed August 10, 2011;
record document number 48, order granting motion. The deposition
excerpts were added as an exhibit to the plaintiffs’ Motion to
Compel rather than docketed separately. They were overlooked when
the original ruling was issued.
The excerpts have now been
considered. Although the exhibit consists of 42 pages, pages 2242 are duplicates of pages 1-21.
7

Defendant also argued that they are confidential and the
court should issue a protective order.
It is not necessary to
address this argument.

response is deficient.
of

the

defendant’s

sufficient.

A general argument that all, or even most,

discovery

responses

deficient

is

not

Such an argument requires the court, in effect, to

make the plaintiffs’ arguments for them.
deposition

are

testimony

from

Shenquan

Plaintiffs reference to

Yang,

the

defendants

Rule

30(b)(6), Fed.R.Civ.P., representative,8 is too vague to support
finding that the defendant’s objections are unsupported or that an
order compelling the defendant to serve supplemental responses is
warranted.
Under Rule 37(a)(5)(B), Fed.R.Civ.P., if a motion to compel
discovery

is

denied,

the

court

shall,

after

affording

an

opportunity to be heard, require the moving party or the attorney
filing the motion or both of them pay to the opposing party’s
reasonable expenses incurred in opposing the motion, unless the
court finds that the motion was substantially justified or that
other circumstances make an award of expenses unjust.
Although

the

plaintiffs’

motion

was

not

substantially

justified, other circumstances make an award of expenses unjust.
Plaintiffs previously filed a motion to compel discovery when the
defendant failed to timely respond to the discovery requests at
issue in this motion.9

Defendant later served its discovery

responses, counsel for the plaintiff advised the court, and the

8

Record document number 45-1, supporting memorandum, p. 2.

9

Record document number 38.

motion was denied as moot.10

Had the plaintiffs pursued an award

of

with

expenses

in

connection

their

earlier

motion,

Rule

37(a)(5)(A) would have warranted an award of expenses because the
discovery responses were provided after the motion was filed.

In

these circumstances, an award to the defendant for the reasonable
expenses it incurred in opposing this motion would be unjust.
Accordingly, the plaintiffs’ Motion to Compel is denied.

The

parties shall bear their respective expenses incurred in connection
with this motion.
Baton Rouge, Louisiana, September 7, 2011.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

10

Record document numbers 43 and 44.