United States District Court, E.D. Louisiana
MR. MUDBUG, INC.
BLOOMIN' BRANDS, INC.
ORDER AND REASONS
WELLS ROBY UNITED STATES MAGISTRATE JUDGE.
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
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.
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.
Standard of Review
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).
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.”
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.
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.
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).
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