Southern Concrete Products, Inc. v. The Euclid Chemical Company et al

Filing 42

ORDER granting in part and denying in part 24 Motion to Compel. Signed by Magistrate Judge David Keesler on 2/28/2013. (tmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:12-CV-257-MOC-DCK
SOUTHERN CONCRETE PRODUCTS, INC.,
Plaintiff,
v.
THE EUCLID CHEMICAL COMPANY and
GIANT CEMENT COMPANY,
Defendants.

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ORDER

THIS MATTER IS BEFORE THE COURT on “Plaintiff Southern Concrete Products,
Inc.’s Motion To Compel Responses To Certain Written Discovery Requests Propounded On
Defendant Euclid Chemical Company And For Sanctions” (Document No. 24). This motion has
been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and
immediate review is appropriate. Having carefully considered the motion, the record, and
applicable authority, the undersigned will grant the motion in part, and deny the motion in part.
I. BACKGROUND
Southern Concrete Products, Inc. (“Plaintiff”) initiated this action against The Euclid
Company and Giant Cement Company (“Defendants”) with the filing of its “Complaint”
(Document No. 1-1) in the Superior Court of Mecklenburg County, North Carolina, on March
22, 2012. Plaintiff asserts claims for breach of contract and warranty, indemnification, and
declaratory judgment regarding venue. (Document No. 1-1). On April 25, 2012, Defendants’
“Joint Notice Of Removal” (Document No. 1) was filed with this Court. The Court’s “Pretrial
Order And Case Management Plan” (Document No. 10) was issued on June 6, 2012; however,
most of the dates therein have since been revised.

“Plaintiff Southern Concrete Products, Inc.’s Motion To Compel Responses To Certain
Written Discovery Requests Propounded On Defendant Euclid Chemical Company And For
Sanctions” (Document No. 24) was filed on January 8, 2013. “Defendant Euclid Chemical
Company’s Response To Plaintiff’s Motion To Compel” (Document No. 28) was filed January
25, 2013, and “Plaintiff’s Reply To Euclid Chemical Company’s Response To Motion To
Compel” (Document No. 30) was filed January 31, 2013.
On February 8, 2013, “Plaintiff’s Supplement To Reply To Motion To Compel”
(Document No. 32) reported that “the parties have worked together to resolve many of the
discovery issues in dispute between them” and specifically addressed the narrowed issues. Also
on February 8, 2013, the Court issued an “Order” (Document No. 33) which in most pertinent
part instructed Defendants to file a sur-reply brief. “Defendant The Euclid Chemical Company’s
Sur-Reply To Plaintiff’s Reply . . . And Plaintiff’s Supplement To Reply To Motion To Compel”
(Document No. 41) was timely filed on February 20, 2013. As such, the pending motion to
compel is now ripe for disposition.
II. STANDARD OF REVIEW
Rule 26 of the Federal Rules of Civil Procedure provides that:
Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense--including the
existence, description, nature, custody, condition, and location of
any documents or other tangible things and the identity and
location of persons who know of any discoverable matter. For
good cause, the court may order discovery of any matter relevant
to the subject matter involved in the action. Relevant information
need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible
evidence.
Fed.R.Civ.P. 26(b)(1). The rules of discovery are to be accorded broad and liberal construction.
See Herbert v. Lando, 441 U.S. 153, 177 (1979); and Hickman v. Taylor, 329 U.S. 495, 507
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(1947). However, a court may “issue an order to protect a party or person from annoyance,
embarrassment, oppression or undue burden or expense.” Fed.R.Civ.P. 26(c)(1).
Whether to grant or deny a motion to compel is generally left within a district court’s
broad discretion. See, Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922,
929 (4th Cir. 1995) (denial of motions to compel reviewed on appeal for abuse of discretion);
Erdmann v. Preferred Research Inc., 852 F.2d 788, 792 (4th Cir. 1988) (noting District Court’s
substantial discretion in resolving motions to compel); and LaRouche v. National Broadcasting
Co., 780 F.2d 1134, 1139 (4th Cir. 1986) (same).
III. DISCUSSION
This lawsuit arises from alleged defects at a construction project. (Document No. 1-1).
Plaintiff was retained by Industrial Concrete Construction, Inc. (“ICC”) on or about August 16,
2010, “to provide the mix design and to mix the concrete needed for” “the construction of a
672,000 square foot new manufacturing facility and warehouse in Shelby, North Carolina (the
“Project”).” (Document No. 1-1, p.2). Plaintiff “mixed, tested, and provided the concrete for the
two pours of the slab that occurred at the Project between October 7 and 9, 2010.” Id. In
providing concrete, Plaintiff allegedly (1) used cement provided by Defendant Giant Cement
Company (“Giant”), and (2) “obtained the admixture for the concrete mix used on the Project
from Euclid.” (Document No. 1-1, pp.2-3). On April 13, 2011, Plaintiff was notified for the first
time that the concrete mix purchased from Plaintiff “for the Project may be defective.”
(Document No. 1-1, p.3). In 2011, claims were asserted by ICC and the Owner/Contractor of the
Project against Plaintiff in federal court, state court, and/or arbitration, alleging the concrete mix
was defective. (Document No. 1-1, p.4).

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On March 22, 2012, Plaintiff filed the instant action against Defendants Giant and Euclid,
under the theory that one or both Defendants were liable, “to the extent” they provided defective
cement and/or admixture, or otherwise contributed to any defects or problems with the concrete
at the Project. (Document No. 1-1, pp.5-6). On February 13, 2013, the claims against Giant
were dismissed; therefore, the only remaining claims are against Defendant The Euclid Chemical
Company (“Defendant” or “Euclid”). (Document No. 36). Also on February 13, 2013, the Court
granted the parties “Joint Motion For Protective Order” (Document No. 34), which may have
resolved some portion of the parties’ current discovery dispute. (Document Nos. 35 and 40).
After review of the parties’ briefs, it appears that the remaining information sought by
Plaintiff’s pending “…Motion To Compel…” (Document No. 24) relates to the following:
Interrogatory Nos. 6 and 11; Euclid admixtures other than Plastol 341S and Eucon WR 91; and
matching invoices to process orders and missing process orders. See (Document Nos. 32, 41).
These remaining disputed issues will be discussed in turn below.
A. Interrogatory Nos. 6 and 11.
These interrogatories seek information about Defendant Euclid’s affirmative defenses
that Plaintiff modified or altered Euclid’s admixture, and that Plaintiff’s claims are barred by an
applicable statute of limitations. (Document No. 32, p.1). In addition, in its reply brief and
supplement to the reply, Plaintiff requests that the Court strike these affirmative defenses
pursuant to Rule 12(f).
In its most recent response, Defendant re-states that it “had no involvement with the
Project other than providing certain admixtures to Southern” and argues that to date it has not
had “access to the factual information which is responsive to this Interrogatory.” (Document No.
41, p.2). Defendant predicts that relevant information will be developed through additional

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discovery, including depositions, and asserts that it will supplement its responses as appropriate.
Id.
The undersigned notes that to the extent Plaintiff is attempting to make a motion to strike
certain affirmative defenses pursuant to Rule 12(f) in its reply brief and/or supplement, such
motion is prohibited. Local Rule 7.1(C)(2) provides that “[m]otions shall not be included in
responsive briefs” and that “[e]ach motion shall be set forth as a separately filed pleading.
Based on the foregoing, the undersigned will deny without prejudice Plaintiff’s motion to
compel as to Interrogatory Nos. 6 and 11, and decline to consider a “motion” to strike under
these circumstances.
B. Other Euclid Products.
The next issue in the pending motion to compel is whether Defendant must provide
“[i]nformation and documents about Euclid’s admixtures other than Plastol 341S and Eucon WR
91” as requested in Interrogatory Nos. 12, 13, and 14 and Document Request Nos. 10, 11, 12,
and 13, “particularly regarding Euclid’s other polycarboxylate admixtures and ‘products of the
same or similar chemical composition, product purpose, or product line.’” (Document No. 32,
p.2). Plaintiff argues that information on the “processes, deficiencies, and failures of those other
admixtures may shed light on processes, deficiencies, and failures, if any, that caused the high air
content in the concrete used on the construction project.” (Document No. 32, p.3).
Defendant asserts that Plaintiff’s requests are “not limited in any way by the products at
issue in this case, and are thus overly broad, unduly burdensome, and not reasonably calculated
to [lead] to the discovery of admissible evidence.” (Document No. 41, p.4). Defendant notes
that such requests include documents and information from January 1, 2007 to present, regarding
at least one hundred (100) different admixtures. Id. Defendant argues that Plaintiff’s statement

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that it seeks information “particularly regarding Euclid’s other polycarboxylate admixtures and
‘products of the same or similar chemical composition, product purpose, or product line’” is tacit
acknowledgement of the overbreadth of its discovery requests. Id.
The undersigned will grant Plaintiff’s motion to the extent it seeks the identification of
lawsuits and arbitrations between January 1, 2007 and the present, in which a third party asserted
a breach of contract and/or warranty claim, a defective product claim, or any other claim arising
from an allegation of defective admixture(s) against Defendant Euclid.

Defendant shall

supplement its responses on or before March 15, 2013, by providing case captions, the court in
which the matters were filed or the arbitration party administering the claim, and a description of
the allegations giving rise to the claims, the current status, and the resolution, if any, of such
matters. Plaintiff’s motion is otherwise denied as to this issue.
C. Matching Invoices to Process Orders and Missing Process Orders.
Finally, Plaintiff identifies two issues remaining regarding the responses to its second
discovery requests: (1) Plaintiff seeks to compel information that that will allow it “to match the
invoices with the Process Orders that Euclid provided”; and (2) Plaintiff asserts that Defendant
has “still failed to produce some Process Orders.” (Document No. 32, p.3).
1.

Matching Invoices To Process Orders

Plaintiff contends that the issue of matching invoices with Process Orders is important
because it has alleged problems in the production of specific batches used on the Project and
needs the Process Orders for admixture batches actually delivered to Plaintiff. Id. Plaintiff cites
examples of inconsistencies between Process Orders showing a certain amount of admixture
production that is different than the amount of admixture delivered to Plaintiff. (Document No.
32, p.4).

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Defendant asserts that it has “no way to tie specific invoices of deliveries to Southern
with specific Process Orders, other than by date of invoice and Process Order.” (Document No.
41, p.7). Defendant further explains that it generally produces the specific admixtures at issue at
or near the time of delivery. Id. The purported discrepancy in quantity of admixture between
invoice and Process Order is attributable to the fact that the amount of admixture manufactured
may be greater at times that that delivered, and the remainder of the Process Order remains in a
holding tank. Id. Defendant concludes that it can provide no further information.
2. Missing Process Orders
Plaintiff has also alleged that Defendant has failed to produce some Process Orders, and
identifies a couple of specific examples. (Document No. 32, p.4). Defendant’s Sur-Reply
addresses Plaintiff’s examples and appears to provide an adequate explanation for why they were
missing. (Document No. 41, p.8). Defendant now asserts that Plaintiff “is in possession of all
known Process Orders responsive to its Requests” and that “there remains nothing to compel
with respect to the Second Discovery Requests.” Id.
Based on the foregoing, the undersigned is not convinced there is responsive information
to be compelled regarding these two issues. As such, the Court will deny this request without
prejudice; Defendant is directed to supplement its response as appropriate.
IV. CONCLUSION
IT IS, THEREFORE, ORDERED that “Plaintiff Southern Concrete Products, Inc.’s
Motion To Compel Responses To Certain Written Discovery Requests Propounded On
Defendant Euclid Chemical Company And For Sanctions” (Document No. 24) is GRANTED in
part, and DENIED in part as more fully described herein.

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IT IS FURTHER ORDERED that Plaintiff’s Expert Report shall be provided within
ten (10) days of this Order, and Defendant’s Expert Report shall be provided within ten (10)
days of service of Plaintiff’s expert disclosure. See (Document Nos. 26 and 38).

Signed: February 28, 2013

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