Georgia-Pacific W&FS (MS) LLC v. Johnson's Fence, LLC et al
Filing
37
ORDER granting 35 Motion to Extend Scheduling Deadlines and granting 29 31 Motion to Compel. Signed by Magistrate Judge Michael T. Parker on August 24, 2015. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
GEORGIA-PACIFIC W&FS (MS) LLC
PLAINTIFF
v.
CIVIL ACTION NO. 5:14-cv-121-KS-MTP
JOHNSON’S FENCE, LLC and
USIC LOCATING SERVICES, INC.
DEFENDANTS
ORDER
THIS MATTER is before the Court on the Motion to Compel [29] [31] filed by
Defendant USIC Locating Services, Inc. and the joint Motion to Extend Scheduling Deadlines
[35] filed by all parties. Having considered the submissions of the parties and the applicable
law, the Court finds that the Motion to Compel [29] [31] should be GRANTED and the Motion
to Extend Scheduling Deadlines [35] should be GRANTED.
Motion to Compel [29] [31]
On December 23, 2014, Plaintiff Georgia-Pacific W&FS (MS) LLC (“Georgia-Pacific”)
filed this action regarding damage to an underground electrical line that supplied power to its
Brookhaven Chip Mill. Georgia-Pacific alleges that Defendant USIC Locating Services, Inc.
(“USIC”) failed to properly locate an underground electrical line and accurately mark the ground
prior to excavation operations performed by Defendant Johnson’s Fence, LLC.
On July 9, 2015, USIC served Georgia-Pacific with a Request for Inspection, which
stated:
COMES NOW, Defendant USIC Locating Services, LLC (“USIC”), pursuant to
Rule 34 of the Federal Rules of Civil Procedure, and requests the Plaintiff, GeorgiaPacific W&FS (MS) LLC (“Georgia-Pacific”), to permit USIC, or an agent thereof,
to enter upon the following land and property for the purposes of inspecting,
measuring, surveying, photographing, testing, sampling and/or excavation the
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remaining underground electrical lines that are the subject of the above captioned
and numbered suit . . . .
See Motion [31] at 2.
On August 4, 2015, Georgia-Pacific responded by agreeing to allow USIC upon its
premises for purposes of measuring, surveying, photographing, and above-ground testing.
Georgia-Pacific, however, objected to any excavation on the basis that it would be unduly
burdensome. Georgia-Pacific asserts that there are active underground and above-ground lines
in the area at issue and that there is a possibility that one of the active lines could come in
contact with the excavation equipment. According to Georgia-Pacific, this risk would require it
to shut down the power to the lines and cease operations at the Brookhaven Chip Mill during the
inspection. See Discovery Response [31-1]. On August 10, 2015, USIC filed its Motion to
Compel [29] seeking an order from the Court allowing it to conduct the requested inspection,
particularly the requested excavation of the disengaged electrical line at issue in this action.1
The federal rules permit discovery of “any nonprivileged matter that is relevant to any
party’s claim or defense . . . .” Fed. R. Civ. P. 26(b)(1). “Relevant information need not be
admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence.” Id. In reviewing a motion to compel, courts must take into account that
discovery rules “are to be accorded a broad and liberal treatment to effect their purpose of
adequately informing litigants in civil trials.” Herbert v. Lando, 441 U.S. 153, 176 (1979).
Fed. R. Civ. P. 34(a)(2) governs the entry of a party onto another party’s property for the
1
On August 10, the Court entered an Order [30] giving the Motion to Compel [29]
expedited consideration and requiring USIC to amend its Motion by quoting verbatim the
relevant discovery request and Georgia-Pacific’s response in accordance with Local Rule 37(b).
On August 11, 2015, USIC filed its Amended Motion to Compel [31].
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purposes of conducting discovery. Pursuant to this rule, “[a] party may serve on any other party
a request within the scope of Rule 26(b) . . . to permit entry onto designated land or other
property possessed or controlled by the responding party, so that the requesting party may
inspect, measure, survey, photograph, test, or sample the property or any designated object or
operation on it.”
Like all discovery, however, the right to inspect under Rule 34 “has ultimate and
necessary boundaries.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Courts
may limit “the frequency or extent of discovery” if they determine that “(i) the discovery sought
is unreasonably cumulative or duplicative, or can be obtained from other source that is more
convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of
the proposed discovery outweighs its likely benefit . . . .” Fed. R. Civ. P. 26(b)(2)(C). “When
considering a motion under Rule 34(a)(2) ‘the degree to which the proposed inspection will aid
in the search for truth must be balanced against the burdens and dangers created by the
inspection.”’ Banks v. The Interplast Group, Ltd., 2003 WL 21185685, at *1 (S.D. Tex. April 16,
2003) (quoting Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904, 908 (4th Cir. 1978)).
Where the burdens and dangers that would accompany the inspection outweigh the degree to
which it will aid in the search for the truth, the inspection should not be permitted.
USIC argues that the requested excavation is necessary in order to determine the exact
location and width of the electrical line. For USIC, the primary issue in this case is whether it
accurately marked the ground above the underground electrical line. Thus, the exact location of
the electrical line is an important fact. USIC asserts that there are no other means by which it
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can pinpoint the location of the electrical line. Georgia-Pacific, however, asserts that USIC can
acquire information regarding the location of the electrical line through photographs and witness
testimony. It appears to the Court that discovery such as photographs and witness testimony
may be insufficient for ascertaining the location of the electrical line as precision will be crucial
in this case. An excavation could make the presentation of evidence on distances and locations
much clearer. Thus, the Court finds that the excavation of the electric line would “aid in the
search for truth.” See Banks, 2003 WL 21185685 at *1.
Having considered the usefulness of the requested inspection, the Court must balance that
usefulness against the burdens and dangers that would accompany the inspection. GeorgiaPacific asserts that “USIC seeks to engage in the same activity that resulted in this very
lawsuit–digging up underground electrical lines–which resulted in an explosion, the shutdown of
power at the Mill, and the resulting economic loss cause by the shutdown.” See Response [34] at
6. According to Georgia-Pacific, “[t]he burdens and dangers created by excavation near active
power lines (which include the risks of personal injury, property damage and business
interruption losses) far outweigh any potential benefit to the parties.” Id. at 2. Georgia-Pacific
asserts that its expenses could include reinstalling the fence, landscaping/grading the area that is
disturbed by the digging and/or all expenses with shutting down the power to the Mill.
In response to Georgia-Pacific’s concerns regarding the burdens and dangers associated
with excavating the electrical line, USIC asserts that the excavation will be supervised by an
electrical engineering firm, Atwell & Gent. USIC asserts that is will also utilize the services of a
surveyor. USIC asserts that it will use hydro excavation and hand tools to reach the electrical
line. According to USIC, because the underground electrical lines in the area are encased in
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PVC conduits, the hydro excavation will be safe, without much risk and without the disruption to
electrical power. USIC also states that it will follow all guidelines set forth in the Common
Ground Alliance promulgated by the Pipeline and Hazardous Material Safety Administration
under the auspices of the United States Department of Transportation.
In light of the importance of this inspection and the steps USIC has committed to take in
order to ensure that the inspection is conducted in a safe manner, the Court finds that the Motion
to Compel [29] [31] should be granted, and Georgia-Pacific shall make the area at issue available
to USIC for inspection, including excavation. The parties shall confer in good faith to schedule
the inspection at a time that will reduce the burden and expense of the inspection and to address
any other details of the inspection. The inspection shall be completed by not later than
September 18, 2015.
If USIC chooses to conduct the inspection, it shall be responsible for any damages and/or
reasonable costs incurred in or as a result of the inspection, including any property damage and
business interruption losses.2 USIC’s right to inspect and excavate is expressly conditioned upon
it assuming responsibility for any reasonable costs incurred or other losses or damage which may
result from the inspection or excavation.3
2
The parties’ submissions indicate that the inspection may be conducted without the
necessity of cutting off power to the entire Mill, but the Court will not make this determination
nor can it on the current record. Instead, the Court will direct the parties to confer in good faith
regarding the specifics of the inspection.
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See Oppenheimer, 437 U.S. at 358; Fed. R. Civ. P. 34 advisory committee’s note
(“[c]ourts have ample power under Rule 26(c) to protect respondent against undue burden of
expense, either by restricting discovery or requiring that the discovering party pay costs.”)
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Motion to Extend Scheduling Deadlines [35]
On August 18, 2015, the parties filed their Motion to Extend Scheduling Deadlines [35].
On March 23, 2015, the Court entered a Case Management Order [13]. Currently, the schedule
for this case is as follows:
Plaintiff’s Expert Designation Deadline:
Defendants’ Expert Designation Deadline:
Discovery Deadline:
Motions Deadline:
Pretrial Conference:
Trial:
July 1, 2015
August 3, 2015
October 1, 2015
October 15, 2015
February 18, 2016
March 7, 2016
See Case Management Order [13]. The parties seek to have the Court amend the Case
Management Order as follows:
Plaintiff’s Expert Designation Deadline:
Defendants’ Expert Designation Deadline:
Discovery Deadline:
Motions Deadline:
September 30, 2015
October 31, 2015
November 15, 2015
November 30, 2015
The parties do not seek to modify the date of the pretrial conference or the date of the trial.
The trial court is afforded broad discretion to preserve the integrity and purpose of the
pretrial order. Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990). Case deadlines can
be modified only by order of the Court upon a showing of good cause supported with affidavits,
other evidentiary materials, or reference to portions of the record. See Amended Case
Management Order [19]; Fed. R. Civ. P. 16(b)(4). The good cause standard “require[s] the
movant to show that the deadline cannot be met despite the diligence of the party needing the
extension.” Puig v. Citibank, N.A., 514 Fed. App’x. 483, 487-88 (5th Cir. 2013) (citation and
quotation omitted). In determining whether the movant has met its burden under Rule 16(b)(4),
the Court considers four factors: (1) the party’s explanation for its failure to meet the deadline,
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(2) the importance of the requested relief, (3) potential prejudice in granting the relief, and (4)
the availability of a continuance to cure such prejudice. S&W Enters., LLC v. SouthTrust Bank of
Ala., N.A., 315 F.3d 533, 535 (5th Cir. 2003); Geiserman, 893 F.2d at 791.
The parties argue that their discovery dispute regarding the excavation of the electrical
line has necessitated extensions of the case deadlines. According to the parties, “experts will be
essential to this litigation once the discovery dispute is resolved.” In light of the Court’s
determination regarding the excavation and the importance of such discovery, the Court finds
that there is good cause to extend the expert designation, discovery, and motions deadlines.
These extensions, however, will necessitate the continuance of the current trial setting as moving
the motions deadline leaves insufficient time for motions to be briefed and ruled on before the
pretrial conference.
IT IS, THEREFORE, ORDERED that:
1.
Defendant USIC Locating Services, Inc.’s Motion to Compel [29] [31] is
GRANTED.
2.
Georgia-Pacific shall make the area at issue available to USIC for inspection, and
the parties shall confer in good faith to schedule the inspection at a time that will
reduce the burden and expense of the inspection and to address any other details
of the inspection.
3.
The parties’ joint Motion to Extend Scheduling Deadlines [35] is GRANTED.
4.
Plaintiff’s Expert Designation Deadline is extended to September 30, 2015.
5.
Defendants’ Expert Designation Deadline is extended to October 31, 2015.
6.
The Discovery Deadline is extended to November 15, 2015.
7.
The Motions Deadline is extended to November 30, 2015.
8.
The Pretrial Conference is reset for April 14, 2016.
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9.
The Trial is reset for a term beginning May 2, 2016, and ending May 13, 2016.
10.
Except as set forth herein, all other deadlines and provisions of the original Case
Management Order [13] remain in place.
SO ORDERED this the 24th day of August, 2015.
s/ Michael T. Parker
United States Magistrate Judge
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