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Mr. Mudbug, Inc. v. Bloomin' Brands, Inc.

United States District Court, E.D. Louisiana

February 1, 2017

MR. MUDBUG, INC.
v.
BLOOMIN' BRANDS, INC.

         SECTION: “H” (4)

          ORDER AND REASONS

          KAREN WELLS ROBY UNITED STATES MAGISTRATE JUDGE.

         Before the Court is a Motion to Compel Site Inspections (R. Doc. 67) filed by the Defendant, Bloomin' Brands, Inc. (“Defendant”), seeking an order from the Court to compel the Plaintiff, Mr. Mudbug, Inc. (“Plaintiff”) to allow the Defendant to conduct a site inspection of the Plaintiff's facility and the food product at issue as well as costs for the instant motion. The motion was submitted on February 1, 2017 and heard with oral argument that same day. For the following reasons, the motion is GRANTED.

         I. Background

         This action was removed from the 24th Judicial District Court on October 19, 2015. R. Doc. 1. The Plaintiff alleges that during late 2007 to early 2008 it entered into a contractual relationship with the Defendant under which the Defendant ordered food products and services from the Plaintiff. R. Doc. 6, p. 2. In 2008, the Plaintiff alleges that the Defendant required the Plaintiff to expand its facilities in order to handle the increased volume of food product and service requests. R. Doc. 6, p. 3. In 2011, after the Defendant allegedly awarded the Plaintiff another contract for salad dressing, which resulted in the Plaintiff embarking on another $16.8 million expansion. Id. In the following years, the Defendant began to allegedly divert business from the Plaintiff, eventually withdrawing from the salad dressing contract in its entirety by 2013. Id. at p. 4. By December of 2014, the business relationship between the parties had terminated in its entirety. Id. As a result in 2015, the Plaintiff filed a state court petition for an amount on an open account on the Plaintiff. The Defendant removed and asserted a counterclaim of breach of contract to supply quality products. The Plaintiff then amended its complaint to add claims for breach of contract and detrimental reliance. R. Doc. 6. The Plaintiff also asserted bad faith claims, but those claims have been dismissed. See R. Doc. 30.

         At this time, the Defendant has filed a motion to compel site inspection. R. Doc. 67. In particular, the Defendant seek an order from the Court compelling the Plaintiff to allow it to inspect the facility and food product at issue in the Plaintiff's claims. R. Doc. 67-1, p. 2. Alternatively, the Defendant seeks an order for the Plaintiff to disclose the current location of the food product and work towards allowing the Defendant to examine the food product at that location. R. Doc. 67. The Defendant also seeks an award of costs for having to file the instant motion to compel.

         II. Standard of Review

         Federal Rule of Civil Procedure 34 governs a party's request “to permit entry onto designated land or other property possessed or controlled by the responding party.” Fed.R.Civ.P. 34(a)(2). Rule 34 goes on to require that the request must describe with “reasonable particularity” the property to be inspected as well as specify the time, place and manner of the inspection. Fed.R.Civ.P. 34(b)(1)(A)-(B). After entering the property, the requesting party may “inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.” Fed.R.Civ.P. 34(a)(2). However, the request must be within the scope of Rule 26(b). Id.

         Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense ..... ” Rule 26(b)(1) specifies that “[i]nformation within the scope of discovery need not be admissible in evidence to be discovered.” Rule 26(b)(1) also specifies that discovery must be “proportional to the needs of the case, considering 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id.

         Under Rule 26(b)(2)(C), discovery may be limited if: (1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from another, more convenient, less burdensome, or less expensive source; (2) the party seeking discovery has had ample opportunity to obtain the discovery sought; or (3) the burden or expense of the proposed discovery outweighs its likely benefit.

         Federal Rule of Civil Procedure 37 provides sanctions for failure to cooperate in discovery. Rule 37(a) allows a party in certain circumstances to move for an order compelling discovery from another party. In particular, Rule 37(a)(3)(b)(iii)-(iv) allows a party seeking discovery to move for an order compelling an answer or production of documents where a party “fails to answer an interrogatory” or “fails to produce documents.” An “evasive or incomplete” answer or production is treated the same as a complete failure to answer or produce. Fed.R.Civ.P. 37(a)(4).

         In addition to alleging that the responding party has failed to properly cooperate with discovery, a motion to compel under Rule 37(a) must also “include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed.R.Civ.P. 31(a)(1).

         Note, if the motion is granted, the court “must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed.R.Civ.P. 37(a)(5)(A). However, the Court will not order payment if the opposing ...


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