JHJ, Inc. et al v. Great Midwest Insurance Company et al

Filing 38

ORDER granting in part and denying in part 37 Motion to Compel Discovery Responses. Plaintiffs shall fully respond to Interrogatories 2, 8 and 16, propounded to them on May 16, 2014, and respond to the discovery requests propounded to them on May 1 2, 2016, within fourteen (14) days of the date of this Order. Plaintiffs are ordered to pay to defendants, through their counsel of record, the sum of $300.00, no later than fourteen (14) days from the date of this Order. Signed by Magistrate Judge Erin Wilder-Doomes on 07/28/2016.(EWD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JHJ, INC., ET AL.

CIVIL ACTION NO.

VERSUS

14-440-JWD-EWD

GREAT MIDWEST INSURANCE
COMPANY, ET AL.
RULING ON MOTION TO COMPEL DISCOVERY RESPONSES
Before the court is a Motion to Compel Discovery Responses (the “Motion”), filed by
defendants Great Midwest Insurance Company (“GMIC”), Bunker Hill Insurance Agency, Inc.
(now known as HIIG Underwriters Agency, Inc.)(“HIIG”) and TRISTAR Risk Enterprise
Management, Inc. (“TRISTAR”)(collectively GMIC, HIIG and TRISTAR are “Defendants”).1
The Motion is not opposed. For the reasons that follow, the Motion is GRANTED IN PART.
I.

Background
Plaintiffs, JHJ, Inc., Baker Piggly Wiggly, Lafayette Piggly Wiggly, Lafayette Foods and

THG Enterprises (collectively “Piggly Wiggly”) originally filed this suit in the 19th Judicial
District Court, Parish of East Baton Rouge, State of Louisiana, alleging damages arising out of
Defendants’ failure to adequately investigate an insurance claim for a slip and fall accident that
occurred at one of Piggly Wiggly’s store locations.2 The case was removed to this court on March
7, 2014. A Partial Scheduling Order was originally entered on June 12, 2014, to permit the parties
to file dispositive motions on an insurance policy provision.3 The assigned magistrate judge was
requested to conduct a new scheduling conference following a denial of Defendants’ Motion for

1

R. Doc. 37.
R. Doc. 1-1.
3
R. Doc. 8.
2

Summary Judgment on the policy issue.4 A scheduling conference was held on May 5, 2016 and
a Scheduling Order issued.5 A four-day jury trial is set in this matter to being on February 21,
2017.6
Defendants’ filed this Motion on June 30, 2016.

The Motion alleges that Defendants

propounded Interrogatories and Requests for Production of Documents (the “Original Requests”)
upon Piggly Wiggly on May 16, 2014 but that the Piggly Wiggly’s Answers to Interrogatories 2,
8 and 16 were incomplete or nonresponsive.

The Motion further alleges that Defendants

propounded Supplemental Interrogatories and Requests for Production of Documents (the
“Supplemental Requests”) upon Piggly Wiggly on May 12, 2016 and Plaintiffs failed to object or
respond to the Supplemental Requests. The Motion certifies that, at a May 17, 2016 discovery
conference under Fed.R.Civ.P. 37(a)(1), Piggly Wiggly’s counsel agreed to provide full and
complete responses to the Original Requests and Supplemental Requests, however, Piggly
Wiggly’s counsel failed to do so despite repeated attempts by Defendants’ counsel to follow up.
Defendants seek to compel responses to the Original Request within five days of an order granting
the Motion, as well as attorney fees and costs associated with preparing the Motion.7
II.

Law and Analysis
Fed.R.Civ.P. 37, which governs motion to compel discovery, provides in pertinent part:
(a) Motion for an Order Compelling Disclosure or Discovery
(1) In General. On notice to other parties and all affected person, a
party may move for an order compelling disclosure or discovery.
The motion must include a certification that the movant has 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.

4

R. Doc. 29.
R. Doc. 36
6
Id.
7
R. Doc. 37-1.
5

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(3) Specific Motions.
*
(B)

*

*

To Compel Discovery Response. A party seeking
discovery may move for an order compelling an
answer, designation, production, or inspection. This
motion may be made if:
*
(iii)

*

*

a party fails to answer an interrogatory
submitted under Rule 33
*

*

*

(4) Evasive or Incomplete Disclosure, Answer, or Response. For
purposes of this subdivision (a), an evasive or incomplete
disclosure, answer, or response must be treated as a failure to
disclose, answer, or respond.
(5) Payment of Expenses; Protective Orders.
(A) If the Motion Is Granted (or Disclosure or Discovery Is
Provided After Filing). If the motion is granted – or if the
disclosure or requested discovery is provided after the
motion was filed—the court must, after giving an
opportunity to be heard, require the party or deponent whose
conduct necessitated them 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 aware of expenses
unjust.
*
*
*
(C) If the Motion Is Granted in Part and Denied in Part. If the
motion is granted in part and denied in part, the court may
issue any protective order authorized under Rule 26(c) and
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may, after giving an opportunity to be heard, apportion
reasonable expenses for the motion.
Defendants allege they did not receive adequate responses to Interrogatory Nos. 2, 8 and
16 of the Original Requests, propounded to Piggly Wiggly on May 16, 2014—almost two (2) years
ago. Fed.R.Civ.P. 37(a)(4) provides that an evasive or incomplete answer is to be treated as a
failure to respond.
INTERROGATORY NO. 2:
Please state with specificity each item or element of damage that
you allege you are entitle to payment for as a result of the Incident:
(1) A complete description of said element of damage;
(2) The value or cost that you allege said item or element of
damage is worth;
(3) The identify of any document, that you base your
valuation of each item of element of damage;
(4) How said element of damage was calculated;
RESPONSE:
Plaintiff objects to this Interrogatory in that it is premature and the
investigation into this matter is ongoing. Subject to the objection:
See plaintiff’s Petition for Damages filed on January 13, 2014.8
INTERROGATORY NO.8:
Please list any and all insurance claims made by you or against you
(including lawsuits), regardless of the alleged cause of loss, since
January 1, 2004, including but not limited to:
(1)
(2)

(3)
(4)
(5)

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the alleged cause of loss giving rise to the claim;
identification of the policy that said claim was made
under including insurer, policy number, effective
dates of the policy and claim number;
whether said claim has been resolved;
if resolved, the method of resolution, i.e. judgment,
settlement;
the amount of money you received as a result of the
resolution.

R. Doc. 37-3 at 2.

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RESPONSE:
Plaintiff objects to this Interrogatory in that it is impossible and
overly burdensome for plaintiff to recall each and every insurance
claim made by or against them.9
INTERROGATORY NO. 16:

Please list and explain your role in the claim of Ms. Lajuanna
Blake, including your role in the admission of liability, the
settlement of the claim of Ms. Lajuanna Blake. Your response
should include whether or not you were informed of the alleged
settlement, whether or not you were involved in the decision to
enter into the alleged settlement, and whether or not you consented
to the alleged settlement.

RESPONSE:
Ms. Satawa immediately reported the incident to Great Midwest
upon receipt of an attorney representation letter. She received an
acknowledgment letter from Bunker Hill on June 29, 2010. She
never had any communication with Brad Huff. She was not
involved in the settlement process and was never notified of any
settlement. It was not until she received the insurance renewal
estimate that she learned of the settlement with Ms. Blake.10
Defendants further allege they did not receive any responses to the Supplemental Requests,
propounded to Piggly Wiggly on May 12, 2016. This Motion was filed on June 30, 2016 and
contains the requisite certification under Fed.R.Civ.P. 37(a)(1) that Defendants attempted to confer
and resolve this issue prior to seeking court intervention.11 Piggly Wiggly has not asserted any
opposition to this Motion. Accordingly, the Motion must be granted, however, rather than the five

9

Id. at 4.
Id. at 7.
11
The court notes that the date of the conference, May 19, 2016, was actually only a week after the Supplemental
Requests were propounded, which is shorter than the time period permitted for responses to interrogatories or requests
for production under Fed.R.Civ.P. 33(b)(2) and 34(b)(2)(A), respectively. Defendants’ counsel has represented to this
court, however, that Piggly Wiggly’s counsel promised responses to both the Original Requests and Supplemental
Requests at the May 19, 2016 conference, but has not provided them and the Motion was filed after Piggly Wiggly’s
responses to the Supplemental Requests would have been due under the Federal Rules of Civil Procedure.
Additionally, Piggly Wiggly has not opposed the Motion.
10

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(5) days requested in the Motion for Piggly Wiggly to respond, Piggly Wiggly shall have fourteen
(14) days from the date of this Order
Fed.R.Civ.P. 37(a)(5)(A) provides that when a motion to compel is granted, the court must
require payment of movant’s reasonable fees incurred in making the motion, including attorney’s
fees, unless one of the enumerated circumstances exist. Fed.R.Civ.P. 37(a)(5)(A) provides that
when a motion to compel is only granted in part, the court may apportion the reasonable expenses
for the motion. Piggly Wiggly did not oppose this motion and there is nothing in the record to
indicate Piggly Wiggly has provided sufficient responses to Interrogatory Nos. 2, 8, and 16 of the
Original Requests or any responses for the Supplemental Requests, despite representations from
Piggly Wiggly’s counsel that it would do so. The only requested relief denied is that Piggly Wiggly
will be given fourteen (14) days, instead of the requested five (5) days, to provide these responses.
The court finds that expenses associated with this Motion should be apportioned to Piggly Wiggly
and that $300.00 is reasonable under these circumstances.
III.

Conclusion
For the foregoing reasons, the Motion to Compel Discovery Responses is GRANTED IN

PART.
IT IS HEREBY ORDERED that JHJ, Inc., Baker Piggly Wiggly, Lafayette Piggly
Wiggly, Lafayette Foods and THG Enterprises shall fully respond to Interrogatories 2, 8 and 16,
propounded to them on May 16, 2014, and respond to the discovery requests propounded to them
on May 12, 2016, within fourteen (14) days of the date of this Order.
IT IS FURTHER ORDERED that JHJ, Inc., Baker Piggly Wiggly, Lafayette Piggly
Wiggly, Lafayette Foods and THG Enterprises are ordered to pay to Great Midwest Insurance
Company, Bunker Hill Insurance Agency, Inc. (now known as HIIG Underwriters Agency, Inc.),

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and TRISTAR Risk Enterprise Management, Inc., through their counsel of record, the sum of
$300.00, no later than fourteen (14) days from the date of this Order.
Signed in Baton Rouge, Louisiana, on July 28, 2016.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

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