Rigid Constructors L L C v. Mitsui Sumitomo Marine Management U S A Inc et al

Filing 86

MINUTES AND MEMORANDUM ORDER for proceedings held before Magistrate Judge Carol B Whitehurst: denying 63 Motion to Consolidate Cases ; granting 84 Motion for Extension.; Telephone Status Conference held on 6/4/2024. IT IS ORDERED that Rigids Motion to Consolidate (Rec. Doc. 63) is DENIED; however, the parties shall work together to coordinate discovery as outlined herein. IT IS FURTHER ORDERED that Rigids Motion to Extend Expert Disclosure/Report Deadlines (Rec. Doc. 84) is GRANTED. (crt,Jordan, P)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION

RIGID CONSTRUCTORS LLC

CASE NO. 6:22-CV-06234*

VERSUS

JUDGE ROBERT R.
SUMMERHAYS

MITSUI SUMITOMO MARINE
MANAGEMENT U S A INC ET AL

MAGISTRATE JUDGE CAROL B.
WHITEHURST

*This order shall also be filed in Case No. 6:24-cv-00111.
MINUTES AND
MEMORANDUM ORDER
Before the Court is Rigid Constructors, LLC’s Motion to Consolidate the
captioned matter with the matter of McKinney Salvage, LLC v. Rigid Constructors,
LLC, Case No. 6:24-cv-00111 (Rec. Doc. 63). Defendants Mitsui Sumitomo Ins.
USA, Inc. and Mitsui Sumitomo Marine Management (USA) Inc. (collectively
Mitsui) filed a response indicating their consent to consolidation for the purpose of
pretrial discovery only. (Rec. Doc. 64). Defendants, U.S. Specialty Insurance
Company (“USSIC”) and Certain Underwriters at Lloyd’s (“Lloyd’s”), opposed the

motion. (Rec. Doc. 72 and 73, respectively). The Court held a telephone hearing on
June 4, 2024.1
These proceedings arise from McKinney Salvage’s salvage operations of
Rigid’s sunk barge and the dispute about who must pay McKinney’s salvage fees.
Rigid and McKinney were parties to a salvage agreement, but both Rigid and
McKinney maintain that Rigid’s insurers, Mitsui and USSIC (underwriters for
Rigid’s primary policy) and/or Lloyds (excess underwriter) must pay.
In the captioned proceedings, Rigid first sued its insurers for breach of
contract, bad faith, and related claims in state court in November 2022. (Rec. Doc.
1-2). The insurers removed to this Court in December 2022. (Rec. Doc. 1).
Several months later, in September 2023, McKinney sued Rigid on open
account in the Eastern District of Louisiana. McKinney Salvage, LLC v. Rigid
Constructors, LLC, Case No. 6:24-cv-0011 (“McKinney Suit”). In January 2024, the
Eastern District transferred the McKinney Suit to this Court. (McKinney Suit Rec.
Doc. 41). In the meantime, Rigid asserted cross-claims against its insurers in the
McKinney Suit, and McKinney asserted direct claims against Rigid’s insurers on

1

The conference began at 2:00 p.m. and ended at 2:29 p.m. (statistical time 29 minutes).
Present were: Alan Braud for Rigid Constructors, Alex Mouldoux for McKinney Salvage, Mandy
Simon, John Nicoletti, and Guerric Russell for the Mitsui defendants, Christopher Pennison for
USSIC, and Patrick Ray for the Lloyd’s.

theories of detrimental reliance, stipulation pour autrui, and unjust enrichment.
(McKinney Suit Rec. Doc. 10 and 57).
Rigid now moves to consolidate this matter with the later-filed McKinney
Suit. F.R.C.P. Rule 42 provides for consolidation of cases involving common
questions of law and fact. The court may join for hearing or trial any or all matters
in the actions, consolidate the actions, or issue any other orders to avoid unnecessary
cost or delay. Rule 42(a).
Although this suit and the McKinney Suit arise from the same underlying
incident, the cases differ fundamentally. While the McKinney Suit seeks recovery
for payment of the salvage fees, the instant suit is Rigid’s attempt to recover damages
for breach of its insurance contract(s) and bad faith damages from its insurers.2 Thus,
while many underlying facts will likely overlap, the legal questions are not
sufficiently congruent to warrant full-scale consolidation of trials. The Court is also
concerned that consolidation will result in insurmountable jury confusion given the
complex insurance coverage issues and divergent claims. Nevertheless, coordination
among the parties for limited discovery purposes will benefit the parties and the
Court by streamlining discovery and any discovery disputes that may arise as they

2

To the extent Rigid asserted identical cross-claims against the insurers in the McKinney
Suit, those duplicate claims are rendered moot under the first-to-file rule. See Cadle Co. v.
Whataburger of Alice, Inc., 174 F.3d 599, 603 (5th Cir. 1999). In any event, Rigid has not filed an
answer to McKinney’s most recent complaint (Rec. Doc. 57), and it is unclear whether Rigid
purports to re-assert duplicate claims in the McKinney suit.

pertain to parties in both suits. Coordinated discovery efforts shall include only those
matters pertaining to both Rigid and McKinney’s claims, and specifically claims
anchored to the much-debated Mitsui email. To the extent the parties are unable to
agree as to whether a particular discoverable matter is pertinent to either or both
cases, the parties may file the appropriate motion(s) to compel and/or for protective
order.
Accordingly,
IT IS ORDERED that Rigid’s Motion to Consolidate (Rec. Doc. 63) is
DENIED; however, the parties shall work together to coordinate discovery as
outlined herein.
IT IS FURTHER ORDERED that Rigid’s Motion to Extend Expert
Disclosure/Report Deadlines (Rec. Doc. 84) is GRANTED.
Signed at Lafayette, Louisiana on this 5th day of June, 2024.

____________________________________
CAROL B. WHITEHURST
UNITED STATES MAGISTRATE JUDGE