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.
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