Kocurek et al v. Franks International L L C et al

Filing 53

RULING ON MOTION. Considering the evidence, the law, and the arguments of theparties, and for the reasons fully explained here, the 50 Motion to Compel is granted in part and denied in part. Signed by Magistrate Judge Patrick J Hanna on 5/5/2017. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
KATHY KOCUREK ET AL.

CIVIL ACTION NO. 6:16-cv-00543

VERSUS

JUDGE FOOTE

FRANK’S CASING CREW &
RENTAL TOOLS, LLC, ET AL.

MAGISTRATE JUDGE HANNA

RULING ON MOTION
Currently pending is the plaintiffs’ motion to compel (Rec. Doc. 50). The
motion is opposed. Considering the evidence, the law, and the arguments of the
parties, and for the reasons fully explained below, the motion is granted in part and
denied in part.
BACKGROUND
Plaintiffs Kathy Kocurek and Le Chat Interiors, Inc. (collectively “Le Chat”)
have brought a breach of contract claim against Frank’s Casing Crew & Rental Tools
LLC (“Frank’s”) and a tortious interference with contract claim against the former
President and CEO of Frank’s, Gary Luquette. On March 14, 2013, Le Chat and
Frank’s executed a Letter of Engagement pursuant to which Le Chat was to perform
interior design services for an office building that was being constructed by Frank’s.
[Rec. Doc. 50-4, p. 2]. The Letter was executed on behalf of Frank’s by Keith Mosing
who was the President and CEO of Frank’s at the time. [Id.] The Letter confirmed an

“agreement for interior design services to be performed by Le Chat . . . to complete
the project at Frank’s . . .” [Id.] The terms contained in the Letter were as follows:
The design concept and implementation shall include developing a color
scheme, sourcing furniture, spatial planning, fixtures, wall coverings,
fabrics, and materials; design custom furniture and built ins; design
window treatments where applicable; selection of materials for flooring,
counters and cabinetry, hardware, and presentation of selections that
represent the best choices for your space.
For the professional services described, the designer’s compensation
shall be $100.00 per hour billed on a monthly basis.
In 2015, Frank’s corporate leadership changed and Luquette became the
President and CEO. On March 12, 2015, Luquette terminated the services provided
by Le Chat prior to completion of the project. [Rec. Doc. 50-4, p. 5]. Gensler
Architecture, Design & Planning, P.C. (“Gensler”) provided Frank’s with a “Key
Findings Report” dated March 9, 2015 in which Gensler proposed recommendations
for the interior design of the project. [Rec. Doc. 50-4, pp. 143- 153]. On March 23,
2015, Luquette, on behalf of Frank’s, signed a contract with Gensler that had an
effective date of February 27, 2015. [Rec. Doc. 50-4, pp. 154-159].1 The Subject
Line provides “Agreement for Interior Architectural Services.” [Rec. Doc. 50-4, p.
154]. The Gensler “Basic Services” are described as follows:

1

The Agreement is dated on page one as March 13, 2015 with revision dates of March 16
and March 20.
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[D]esign services for all interiors beyond the core on levels one through
four, including office and workstations space, meeting spaces, common
areas, and storage; and signs required by code, and coordination of
design services for the following building systems or components
currently being provided by other consultants: mechanical, electrical,
plumbing, structural, and lighting engineering.
[Id. p. 155].
Gensler was to be compensated for Basic Services in a lump sum (which is
redacted) that was broken down into Phase One and Two Architectural Services,
Phase Three Architectural Services and Furniture Selection and Specifications. [Id.
p. 158]. In addition, there was a cost plus arrangement (also redacted) for
reimbursable expenses and other consultant fees invoiced through Gensler. [Id.].
Gensler issued Work Authorizations which are contained in Exhibit C to the
plaintiffs’ motion. [Rec. Doc. 50-5].2 The Work Authorizations contain a myriad of
services and materials provided to, and ostensibly paid for by, Frank’s. The Work
Authorizations are signed by representatives of Gensler and Frank’s and contain
pricing information in each. The services described in the Work Authorizations far
exceed those set forth in the Letter Agreement provided by Le Chat.
Exhibit C also contains internal reports from Frank’s personnel reviewing the
project, reporting of site visits, and making recommendations. [Rec. Doc. 50-5, Conf.

2

For reasons unknown, the pages are not numbered with headers in the record, however,
they are marked by the parties as “Confidential Def pp. 171- 241"
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Def. pp. 242- 247]. It is clear from these documents that there are multiple
contractors/vendors in a variety of areas that do not include work done by LeChat and
would not have ever been under Le Chat’s direction.
By this motion, the plaintiffs seek two types of information. First, they want
detailed, “specific itemizations of payments for interior design work on the Project
that include: a) the identity of the person paid; b) the amount paid; c) payment dates:
and d) and itemized description of the work performed, i.e. payment for furniture,
rugs, draperies, etc.” [Rec. Doc. 50-1, p. 2]. In another part of the motion, the
plaintiffs request “invoices and payment for interior design work actually performed
to complete the Frank’s office Project and invoices and payments for furniture and
other interior design furnishings actually purchased for use in the Project building.”
[Rec. Doc. 50-1, p.5]. Secondly, the plaintiffs seek documents related to changes or
modifications to the project’s budget and time to complete the project.
Frank’s responded with four primary objections: (a) the plaintiffs have no
discovery request actually addressing the items requested pertaining to invoices,
payments, etc.; (b) Le Chat would not have received any compensation for those
things purchased for Frank’s, i.e. furnishings and finishes, other than her hourly rate,
and therefore, it is not relevant information; (c) they have already provided adequate
information pertaining to prices; and (d) Luquette has already testified to the
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budget/time for completion of the project and to require Frank’s to now produce all
of the project data is disproportional to the needs of the case.
APPLICABLE LAW AND ANALYSIS
As a threshold matter, the Court finds that the payment information sought by
the plaintiffs does fall within the scope of Request for Production number 12. The
Court further finds that Frank’s has satisfactorily answered Interrogatory numbers 5
and 16.
Resolution of this motion is determined by application of Fed.R.Civ.P.
26(b)(1), which provides that “parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim. . .” The relevancy
determination is tied to the applicable substantive law and is tempered by the
balancing of six proportionality factors: “the importance of the issues at stake in the
action, the amount in controversy, the parties’ relative access to relevant information,
the parties’ resources, the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery outweighs its likely
benefit.” Id.
The plaintiffs have sued Frank’s for breach of the Letter Agreement. “The
essential elements of a breach of contract claim are (1) the obligor's undertaking an
obligation to perform, (2) the obligor failed to perform the obligation (the breach),
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and (3) the failure to perform resulted in damages to the obligee.” Denham Homes,
LLC. V. Teche Federal Bank, 2014-1576 (La. App. 1 Cir. 09/18/15), 182 So.23d 108,
119, citing La. Civ. Code art. 1944 and Favrot v. Favrot, 10–0986 (La. App. 4 Cir.
02/09/11), 68 So.3d 1099, 1108-09, writ denied, 11-0636 (La. 05/06/11), 62 So.3d
127. Pursuant to La. Civ. Code art. 1995, “[d]amages are measured by the loss
sustained by the obligee and the profit of which he has been deprived.”
The plaintiffs contend that the itemized invoices/payments are relevant to their
computation of damages of lost profits for the breach of contract claim. The Letter
Agreement provides that Le Chat would “source furniture” among other things. While
Le Chat was only to be compensated on an hourly basis, with no commission on
furnishings purchased, the plaintiff contends that by knowing what was purchased,
when, where, and by whom, Le Chat can calculate what time might have been spent
had the Letter Agreement not been terminated, and thereby compute the lost profits
based on the hourly rate. While this Court makes no comment on the viability of this
method of attempting to prove damages, from a discovery standpoint the information
sought is relevant. Further, the proportionality factors do not weigh in favor of
disallowing this limited discovery. Therefore, Frank’s will be ordered to produce only
those itemized invoices/payments for purchases that actually were made under the
third item of compensation in the Gensler agreement for Furniture Selection and
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Specifications and that would also fall under the category of furniture or interior
design furnishings as specifically set forth in the Letter Agreement.
The plaintiffs have also sued Mr. Luquette personally for tortious interference
with contract. Under 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228, 231 (La. 1989),
an officer of a corporation owes an obligation to a third person having a contractual
relationship with the corporation to refrain from acts intentionally causing the
company to breach the contract or to make performance more burdensome, difficult,
or impossible or of less value to the one entitled to performance, unless the officer has
reasonable justification for his conduct. The elements are as follows: (1) the existence
of a contract or a legally protected interest between the plaintiff and the corporation;
(2) the corporate officer's knowledge of the contract; (3) the officer's intentional
inducement or causation of the corporation to breach the contract or his intentional
rendition of its performance impossible or more burdensome; (4) the absence of
justification on the part of the officer; (5) causation of damages to the plaintiff by the
breach of contract or difficulty of its performance brought about by the officer. Id.
at 234.
The Court’s ruling as to the documents set forth above also applies to this
cause of action but only as it pertains to the calculation of damages. In all other
respects, the response by the defendant to Request Number 16 is adequate particularly
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when considered in the context of Mr. Luquette’s testimony. Furthermore, production
of all documents related to all aspects of the budget fails the proportionality analysis
under the facts of this case. Therefore, the motion is denied as to the remaining items
sought.
CONCLUSION
For the foregoing reasons, the motion to compel is granted in part and denied
in part. Specifically, the motion is GRANTED insofar as the defendant is ordered to
produce those documents responsive to Request for Production No. 16 relating to
purchases that actually were made under the third item of compensation in the
Gensler agreement for Furniture Selection and Specifications and that also fall under
the category of furniture or interior design furnishings as specifically set forth in the
Letter Agreement. The production shall be made within 7 days of this date unless
such a time frame is a hardship in which event counsel should contact the Court. In
all other respects the motion is DENIED.
Signed at Lafayette, Louisiana on this 5th day of May 2017.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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