Gamma Construction Co Inc v. Franks International L L C

Filing 97

MEMORANDUM RULING re 88 Motion to Compel. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained below, the motion is denied. IT IS FURTHER ORDERED that the oral argument previously scheduled for August 12, 2021 is CANCELLED. Signed by Magistrate Judge Patrick J Hanna on 7/28/2021. (crt,Alexander, E)

Case 6:18-cv-00761-MJJ-PJH Document 97 Filed 07/28/21 Page 1 of 14 PageID #: 1150

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
GAMMA CONSTRUCTION
COMPANY, INC.

CIVIL ACTION NO. 6:18-cv-00761

VERSUS

JUDGE JUNEAU

FRANK’S INTERNATIONAL, LLC

MAGISTRATE JUDGE HANNA

MEMORANDUM RULING
Currently pending is the motion to compel the production of documents and
the testimony of Frank’s International, LLC’s Rule 30(b)(6) witness (Rec. Doc. 88),
which was filed by third-party defendant Gulf Coast Woodworks, LLC. 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 denied.
Background
Gamma Construction Company, Inc. was the general contractor for the
construction of Frank’s International, LLC’s new administration building in
Lafayette, Louisiana.

Gulf Coast Woodworks, LLC was one of Gamma’s

subcontractors. In June 2018, Gamma filed this lawsuit against Frank’s, alleging
inter alia that Frank’s breached the contract between them and failed to pay the full
amount owed to Gamma. In July 2018, Gulf Coast filed suit against Frank’s in
Louisiana state court, seeking to recover amounts it was allegedly owed for its work
on the construction of Frank’s new building. Frank’s answered the state-court suit

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and asserted a third-party demand against Gamma for breach of contract based on
Gulf Coast’s allegedly deficient work. Frank’s then filed a counterclaim in this
lawsuit to assert a similar claim against Gamma. After Gamma filed an exception
of lis pendens in the state-court suit, Frank’s and Gamma entered into a consent
judgment, agreeing that the state-court suit would be stayed pending the resolution
of this federal-court lawsuit.1
In April 2020, Gamma and Frank’s settled their dispute, with Frank’s
reserving its right to proceed against Gamma for the purpose of pursuing its claim
against Gulf Coast2 and Gamma assigning all of its rights in the Gulf Coast
subcontract to Frank’s. 3 In July 2020, Frank’s filed a third-party complaint against
Gulf Coast in this action. 4
In its third-party demand against Gulf Coast, Frank’s alleged that Gulf Coast
was hired by Gamma “to perform architectural woodwork and casework” in the new
building. In particular, Gulf Coast was to install a product called “Tree Frog veneer.”
Frank’s alleged that the product was not installed in accordance with the architect’s
specifications or the manufacturer’s recommendations, resulting in bubbling and

1

Rec. Doc. 64-5 at 2.

2

Rec. Doc. 64-5 at 14.

3

Rec. Doc. 64-5 at 21, 25.

4

Rec. Doc. 58.

2

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delamination. Frank’s asserted a redhibition claim, a claim for breach of the
warranty of fitness, a negligence claim, and a claim for unjust enrichment. Frank’s
also sought “a declaratory judgment that Frank’s shall not be liable to Gulf Coast for
the amount allegedly owed or, in the alternative, the amount allegedly owed should
be reduced by the amount to correct the defective work, which is actually more than
the amount sought by Gulf Coast.”5
Gulf Coast filed the pending motion in an effort to obtain an unredacted copy
of the settlement agreement between Gamma and Frank’s and testimony from
Frank’s corporate representative regarding the settlement agreement. Frank’s has
resisted producing an unredacted copy of the settlement agreement or permitting its
representative to discuss the redacted portions of the settlement agreement, primarily
on the basis that the parties agreed to keep the agreement confidential.
Law and Analysis
In support of its motion to compel, Gulf Coast argued that the entire
unredacted settlement agreement between Gamma and Frank’s is discoverable, may
be admissible, may lead to the admissibility of other evidence, may potentially
demonstrate bias or prejudice by the realignment of the parties through the release
and assignment of claims, may lead to admissible evidence regarding Gulf Coast’s

5

Rec. Doc. 58 at 10.

3

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claims and defenses, and may be germane to the amount in controversy of Frank’s
third-party demand against Gulf Coast.6 Frank’s argued, in response, that the
settlement agreement is not discoverable and that Gulf Coast’s motion to compel
was not timely filed.
In evaluating the motion to compel, this Court is guided by Fed. R. Civ. P. 26,
which states that parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to the needs of the
case, considering the factors set forth in the rule. The discovery rules are accorded
a broad and liberal treatment to achieve their purpose of adequately informing
litigants in civil trials. 7 Nevertheless, discovery does have “ultimate and necessary
boundaries.”8 Further, it is well established that “control of discovery is committed

6

This Court notes that Gulf Coast’s argument regarding the court’s subject-matter
jurisdiction lacks merit. “When a federal court has original subject matter jurisdiction over
plaintiff's complaint, the court has supplemental jurisdiction over a third-party demand under 28
U.S.C. § 1367 and ‘there need be no independent jurisdictional basis for such a claim.’”
Constantin Land Trust v. Epic Diving and Marine Services, LLC, No. 12-259, 2013 WL 1292275,
at *7 (E.D. La. Mar. 28, 2013) (quoting 6 Miller & Kane, Federal Practice & Procedure § 1444 at
377-78 (West 2010)).

7

Herbert v. Lando, 441 U.S. 153, 177 (1979); Davis v. United States Marshals Service, 849
Fed. App’x 80, 86 (5th Cir. 2021) (citing United States v. Holley, 942 F.2d 916, 924 (5th Cir. 1991)).

8

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (quoting Hickman v. Taylor,
329 U.S. 495, 507 (1947)).

4

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to the sound discretion of the trial court,” 9 and a “trial court enjoys wide discretion
in determining the scope and effect of discovery.”10
A.

Gulf Coast Failed to Properly Evidence the Discovery Dispute
Local Rule 26.6 states that when a party seeks relief under Fed. R. Civ. P. 37,

as Gulf Coast has in this case, “copies of the portions of the. . . requests [for
production]. . . shall be filed with the court contemporaneously with any such
motion.” Gulf Coast failed to comply with this rule.
According to Gulf Coast’s briefing, Gulf Coast propounded written discovery
to Frank’s on April 5, 2021, including Request No. 8 which allegedly requested the
production of any and all settlement documents between Gamma and Frank’s. Gulf
Coast did not file a copy of the requests for production along with its motion to
compel. However, Gulf Coast alleged that, on May 10, 2021, Frank’s objected to
Request for Production No. 8 on the primary basis that it sought confidential and
privileged settlement documents but stated that it had already given Gulf Coast a
redacted version of the settlement agreement.11 In its briefing, Gulf Coast allegedly

9

Freeman v. United States, 556 F.3d 326, 341 (5th Cir. 2009) (quoting Williamson v. U.S.
Dept. of Agriculture, 815 F.2d 368, 382 (5th Cir. 1987)).
10

Equal Employment Opportunity Commission v. BDO USA, L.L.P., 876 F.3d 690, 698 (5th
Cir. 2017) (quoting Sanders v. Shell Oil Co., 678 F.2d 614, 618 (5th Cir. 1982)).
11

Rec. Doc. 88-1 at 4. Frank’s claims to have produced the redacted copy of the settlement
agreement in September 2020. Rec. Doc. 88-6 at 1.

5

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quoted both Request for Production No. 8 and Frank’s response to Request for
Production No. 8.12 Gulf Coast also indicated that Frank’s response to the disputed
request for production could be found in its Exhibit B, filed in the suit record as
Record Document 88-3. 13 Gulf Coast did not indicate on which page of that 68 page
document Frank’s request could be found. Therefore, this Court reviewed the
entirety of Gulf Coast’s Exhibit B – but without locating the request for production
at issue or the alleged response thereto that was quoted in Gulf Coast’s brief. Gulf
Coast’s Exhibit B does include Frank’s response to a Request for Production No. 8,
but the Request for Production No. 8 in the document filed along with Gulf Coast’s
motion to compel seeks a copy of Frank’s contract with J.S. Altimore rather than the
unredacted settlement agreement between Frank’s and Gamma. 14 Nowhere in the
document filed as Gulf Coast’s Exhibit B did this Court locate a request for
production seeking an unredacted copy of the settlement agreement. Therefore, Gulf
Coast failed to comply with Local Rule 26.6 and neither documented that it actually
sent the alleged production request to Frank’s nor documented Frank’s response to
that alleged request for production.

12

Rec. Doc. 88-1 at 3-4.

13

Rec. Doc. 88-1 at 4, footnote 4.

14

Rec. Doc. 88-3 at 16.

6

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Additionally, Gulf Coast alleged in its briefing that it noticed a Rule 30(b)(6)
deposition of Frank’s on May 10, 2021, and specifically requested that a company
representative answer questions regarding the settlement between Gamma and
Frank’s, to which Frank’s objected.15 Gulf Coast indicated that its Exhibit C, filed
into the record as Record Document 88-4, evidenced this request. Upon review,
however, this Court found that the version of the deposition notice dated May 10,
2021 that was filed in the record and designated as Rec. Doc. 88-4 does not ask
Frank’s to designate a corporate representative to discuss the settlement agreement.
Only four topics for discussion are set forth in the deposition notice, and none of
them are related to the settlement between Frank’s and Gamma.16
On June 20, 2021, Matthew Weber was deposed in his capacity as Frank’s
authorized representative. During the deposition, Mr. Weber was asked questions
about the redacted portions of the settlement agreement; Frank’s counsel objected to
the questions and instructed Mr. Weber not to answer them.17 The primary basis for
Frank’s objection was that Gamma and Frank’s agreed that the terms and conditions
set forth in the settlement agreement would remain confidential. Gulf Coast filed a

15

Rec. Doc. 88-1 at 4.

16

Rec. Doc. 88-4 at 2.

17

Rec. Doc. 88-7 at 15-17, 68-72.

7

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copy of the deposition transcript along with its motion to compel. 18 The index to the
transcript indicates that several exhibits were attached to the transcript, including the
deposition notice and Frank’s objections to the notice. However, neither of those
exhibits was filed into the record along with the deposition transcript.
Along with its opposition brief, however, Frank’s filed a copy of its objections
to the deposition notice, which indicates that Topic Number 7 was the settlement
between Gamma and Frank’s 19 and that Frank’s objected to having that topic
addressed by its representative in deposition primarily because of the confidentiality
clause in the agreement. Apparently, the copy of the deposition notice that Gulf
Coast filed in the record along with its motion to compel was incomplete since it did
not include a Topic Number 7.
Therefore, to the extent that Local Rule 26.6 might be interpreted as applying
to Gulf Coast’s motion to compel Frank’s to provide a corporate representative to
discuss the unredacted portions of the settlement agreement, Gulf Coast failed to
comply by failing to document that it actually sent Frank’s a deposition notice listing
the settlement agreement between Gamma and Frank’s as a topic to be discussed at
the deposition.

18

Rec. Doc. 88-7.

19

Rec. Doc. 96-2 at 5.

8

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B.

Gulf Coast’s Motion to Compel is Untimely
Rule 16(b) of the Federal Rules of Civil Procedure authorizes the Court to

control and expedite pretrial discovery through a scheduling order. Trial courts are
afforded broad discretion to preserve the integrity and purpose pretrial orders.20
Rule 16(b)(4) states that a scheduling order “may be modified only for good cause
and with the judge's consent.” The good cause standard requires the “party seeking
relief to show that the deadlines cannot reasonably be met despite the diligence of
the party needing the extension.”21 “Deadlines are deadlines for a reason. A
discovery deadline is in place to ensure that other deadlines – such as those for expert
reports and dispositive motions – are met. When one deadline is not met, other
deadlines pass, and the District Court's trial schedule is jeopardized.”22 However,
the court may, for good cause shown, extend the time for a party to act when “an act
may or must be done within a specified time.” 23

20

Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990) (quoting Hodges v. United
States, 597 F.2d 1012, 1018 (5th Cir. 1979)).
21

S&W Enterprises, L.L.C. v. SouthTrust Bank of Alabama, NA, 315 F.3d 533, 535 (5th Cir.
2003) (quoting 6A Charles Alan Wright et al., Federal Practice and Procedure § 1522.1 (2d ed.
1990)).
22

2014).
23

David v. Signal Intern., L.L.C., No. 08-1220, 2014 WL 6612598, at *3 (E.D. La. Nov. 19,
Fed. R. Civ. P. 6(b)(1).

9

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In July 2020, when Frank’s filed its third-party demand against Gulf Coast,
the parties to this lawsuit were operating under a scheduling order with a discovery
deadline of June 16, 2020 and a trial date of December 7, 2020.24 In February 2021,
the trial date was continued to October 25, 2021 and the discovery deadline was
continued to May 7, 2021. 25 Thus, from the time that Frank’s sued Gulf Coast, the
parties had approximately ten months to conduct discovery. At no time during that
ten-month window did Gulf Coast file its motion to compel.
The scheduling order is not ambiguous. It states that May 7, 2021 “is the
deadline for completion of all discovery and for submission of any discovery
motions (e.g., motions to compel).” 26 In its briefing, Frank’s stated that the parties
agreed to extend the formal discovery deadline until the end of May 2021 “due to
scheduling issues.”27 On May 13, 2021, counsel for Gulf Coast communicated to
counsel for Frank’s that he was contemplating filing a motion to compel.28 But Gulf
Coast’s motion to compel was not filed until June 23, 2021 – more than a month

24

Rec. Doc. 50.

25

Rec. Doc. 81.

26

Rec. Doc. 81 at 2.

27

Rec. Doc. 96 at 3-4.

28

Rec. Doc. 88-5.

10

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after the formal deadline set by the court and a full three weeks after the extended
deadline that the parties agreed to among themselves.
The Fifth Circuit Court of Appeals has noted that its “precedent suggests that
a district court is within its discretion to deny a motion to compel filed on or after
the court-ordered discovery deadline – regardless of the requested discovery's value
to the party's case.” 29 Thus, “if the conduct of a respondent to discovery necessitates
a motion to compel, the requester of the discovery must protect himself by timely
proceeding with the motion to compel. If he fails to do so, he acts at his own peril.”30
When a motion is filed after the discovery deadline, like Gulf Coast’s motion
in this case, courts have considered a number of factors in determining whether the
motion should be granted, including (1) the length of time since the expiration of the
deadline, (2) the length of time that the moving party has known about the discovery,
(3) whether the discovery deadline has been extended, (4) the explanation for the
tardiness or delay, (5) whether dispositive motions have been scheduled or filed, (6)
the age of the case, (7) any prejudice to the party from whom late discovery was
sought, and (8) disruption of the court's schedule.31

29

McCollum v. Puckett Machinery Co., 628 Fed. App'x 225, 228 n. 4 (5th Cir. 2015).

30

Wells v. Sears Roebuck and Co., 203 F.R.D. 240, 241 (S.D. Miss. 2001).

31

Days Inn Worldwide, Inc. v. Sonia Investments, 237 F.R.D. 395, 398 (N.D. Tex. 2006)
(citing Gault v. Nabisco Biscuit Co., 184 F.R.D. 620, 622 (D. Nev. 1999)).

11

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This suit is set to be tried in October; therefore, any extension of the discovery
or dispositive motion deadlines at this point would likely jeopardize the trial date.
Gamma and Frank’s settled their dispute before Frank’s third-party demand against
Gulf Coast was filed. Gulf Coast stated in its briefing that it has, “from the outset of
being hailed into federal court,” “attempted to obtain a full, unredacted settlement
agreement.”32

Thus, the dispute regarding the production of the settlement

agreement began before the discovery deadline established in the most recent
scheduling order, and before the parties cooperatively extended that deadline. The
deadline for filing dispositive motions was extended by the court after Frank’s filed
an unopposed motion 33 but the parties did not ask the court to extend the discovery
cut-off date. In its briefing, Gulf Coast failed to present exceptional circumstances
to justify filing a motion to compel after the close of discovery. In fact, Gulf Coast
did not even address that issue. Furthermore, after Frank’s raised the timeliness of
the motion to compel in its opposition brief, Gulf Coast had an opportunity to discuss
the timeliness of the motion and attempt to justify the late filing. But Gulf Coast
chose not to file a reply brief. Thus, Gulf Coast forfeited its opportunity to persuade
the court that there was good cause for the tardiness of its motion.

32

Rec. Doc. 88-1 at 3.

33

Rec. Doc. 85.

12

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In this case, the discovery deadline set by the court was May 7, 2021; the
discovery deadline agreed upon by the parties was May 31, 2021; the motion to
compel was not filed until June 23, 2021 – beyond the expiration of the agreed-upon
extension of the deadline. In its briefing, Gulf Coast did not address the timeliness
of the filing or articulate good cause for waiting so long to file its motion. Gulf
Coast did not argue that its motion to compel was timely, did not offer any excuse
for its delay, and did not explain why discovery should have been extended. The
information sought by Gulf Coast in its motion could have been sought prior to the
expiration of the discovery deadline. Gulf Coast provided no explanation as to why
it did not file a motion to compel the production of the settlement agreement and
testimony regarding the agreement before the discovery deadline elapsed.
Additionally, the issue of the timeliness of the motion to compel was raised in
Frank’s opposition to the motion to compel, but Gulf Coast did not file a reply brief
and, consequently, chose not to address the timeliness of the motion to compel. For
these reasons, Gulf Coast’s motion to compel is denied as untimely.
C.

Gulf Coast is Not Entitled to Sanctions
Gulf Coast did not seek sanctions under Rule 37 of the Federal Rules of Civil

Procedure for Frank’s failure to produce an unredacted copy of the settlement
agreement. Instead, Gulf Coast only sought to recover sanctions in the form of
reasonable expenses and attorneys’ fees under Rule 30(d)(2) of the Federal Rules of
13

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Civil Procedure for Frank’s alleged failure to designate a corporate representative to
testify regarding the settlement agreement. Relief is available under that statute only
if a person impedes, delays, or frustrates the fair examination of the deponent. In
this case, Frank’s communicated its objections to the deposition topics before the
deposition occurred. 34 Despite being aware of Frank’s well-reasoned, good faith
objections, Gulf Coast waited until June 23, 2021 to file its motion to compel.
Having waited too long to file the motion to compel, Gulf Coast is not entitled to
recover sanctions. Accordingly, no attorneys’ fees or expenses will be awarded to
Gulf Coast in connection with this motion to compel.
Conclusion
For the foregoing reasons,
IT IS ORDERED that Gulf Coast’s motion to compel (Rec. Doc. 88) is
DENIED in all respects.
IT IS FURTHER ORDERED that the oral argument previously scheduled for
August 12, 2021 is CANCELLED.
Signed at Lafayette, Louisiana, this 28th day of July 2021.
____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

34

Rec. Doc. 96-2 at 5.

14