United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE
the Court for a Report and Recommendation to the presiding
District Judge is Defendant's, Associated Terminals,
LLC's (“Associated's), motion to dismiss with
prejudice for failure to comply with a court order and abuse
of discovery. (Rec. doc. 17). The motion is opposed by
Plaintiff, Noranda Alumina LLC (“Noranda”). (Rec.
doc. 23). Associated filed a reply memorandum (rec. doc. 24)
and the Court held a hearing on the motion, the transcript of
which is also in the record. (Rec. docs. 29, 31).
carefully considering the pleadings and arguments of counsel
and taking into account its multiple and ongoing interactions
with the parties and their counsel throughout the discovery
process in this case, the Court recommends that the motion be
granted and that the claims of Noranda in this lawsuit be
dismissed with prejudice.
Relevant Procedural History
matter involves competing property damage claims asserted by
each party against the other relating to the partial collapse
of Noranda's “Gramercy Dock” structure. That
collapse occurred on March 16, 2016. (Rec. doc. 17-1 at p.
3). Shortly thereafter, on May 9, 2016, Associated alleges
that it discovered significant damage to its vessel, the MISS
TARA, which had continued to service the Gramercy Dock, even
after the partial collapse. (Rec. doc. 1-2 at p. 79).
Associated claims that the damage was caused by submerged
portions of the collapsed dock structure. (Id.).
After discovering the damage, Associated invited Noranda to
participate in a joint survey of the damage and sent invoices
to Noranda requesting reimbursement and payment for repairs.
(Id.). Up to that point, Noranda had not notified
Associated that it believed the latter was responsible for
the dock structure collapse in any way.
than a month later, on June 6, 2016, Noranda made its initial
claim against Associated for the dock structure collapse, in
the form of an adversarial proceeding filed by Noranda in its
Voluntary Chapter 11 Bankruptcy proceeding in the United
States Bankruptcy Court for the Eastern District of Missouri,
which it had instituted on February 8, 2016. At the time that
Noranda filed its Bankruptcy petition, Associated alleges it
was owed over $1, 300, 000 by Noranda. (Rec. doc. 1-2 at p.
77). As an unsecured creditor, Associated states it has
recovered none of those accounts receivable.
August 4, 2016, Associated filed an answer and counterclaim
in the adversarial proceeding, seeking to recover against
Noranda for the damage caused to its vessel that was
discovered on May 9, 2016. (Rec. doc. 1-1 at p. 6). On August
10, 2016, Associated issued to Noranda the written discovery
that is subject of the present motion, responses to which
were due on September 28, 2016. Noranda did not respond.
(Rec. doc. 7).
the bankruptcy proceeding was closed, on November 23, 2016,
Noranda transferred the competing claims to this Court. (Rec.
post-transfer procedural history germane to this Court's
determination of the present motion is set forth below:
On March 23, 2017, the District Judge issued a Scheduling
Order in this case, setting the following notable deadlines
o Plaintiff's expert reports due August 9, 2017
o Pretrial motion deadline September 26, 2017
o Discovery deadline October 6, 2017
o Trial December 4, 2017
• Beginning on May 3, 2017 and then again on June 12,
2017 and July 13, 2017, Associated's counsel inquired
regarding Noranda's by then long-overdue responses, and
warned that Associated would file a motion to compel if
Noranda failed to timely provide responses. (Rec. doc. 7-3).
• Associated's counsel convened a Rule 37 discovery
conference on August 3, 2017 and a second conference on
August 10, 2017. (Rec. doc. 7). Despite the two discovery
conferences, Noranda still did not provide responses to
Associated's discovery requests - now more than a year
• On August 11, 2017, Associated requested dates for
corporate depositions and the depositions of fact witnesses
Pat Harrington, Lezlie Jones, Todd Bland and Gary Caro. Dates
were not provided by Noranda. (Rec. doc. 17-11).
• On August 14, 2017, Associated filed its Motion to
Compel. (Rec. doc. 7).
• On August 22, 2017, counsel for Noranda filed a
two-and-a-half page opposition memorandum to Associated's
motion to compel, suggesting that “from Noranda's
side, the slow response to Associated's discovery must
lay at my feet” because he had been busy attending to
another case and further stating that he was
“endeavoring to provide Noranda's responses to
Associated's discovery prior to the motion hearing on
August 30, 2017.” (Rec. doc. 9 at p. 2).
• On August 23, 2017 and August 28, 2017, Associated
again sent correspondence to Noranda, seeking dates for the
depositions of Noranda's fact witnesses. Again, no dates
were forthcoming. (Rec. doc. 17-11).
• On August 30, 2017, after the hearing on the motion to
compel, the Court ordered Noranda to fully and formally
respond to the outstanding discovery within 14 days, without
objection. (Rec. doc. 10). The Court held Associated's
request for reasonable expenses, including attorneys'
fees, in abeyance pending compliance with the Order.
• On August 28, 2017 and September 1, 2017, Associated
issued a subpoena and Notice of 30(B)(6) corporate deposition
to Noranda and Noranda's apparent successor entity, New
Day Aluminum, LLC (“New Day”). Noranda and New
Day's responses would have been due on September 27 and
October 2, 2017, respectively. (Rec. doc. 17-11). No.
responses were provided. (Id.).
• On September 1, 2017, Associated's counsel, for
the third time, requested deposition dates for fact witnesses
by the close of business on September 6, 2017.
• On September 13, 2017, the deadline ordered by this
Court for Noranda to provide full and complete responses to
written discovery, counsel for Noranda asked Associated's
counsel for an additional “day or two” to
respond. (Rec. doc. 17-5). Counsel for Noranda did not
request an extension from this Court.
• That same day (when responses were due as per this
Court's order) Noranda's counsel requested certain
material, responsive information from his
client. (Rec. doc. 17-8).
• On September 15, 2017, two days after this Court
ordered full and complete responses, Noranda provided
partial, incomplete responses to Associated. (Rec. doc. 17-7).
• On October 10, 2017, due to Noranda's and New
Day's failure to respond to Associated's Notice of
30(B)(6) corporate deposition, Associated unilaterally
noticed the corporate depositions for October 25 and 26, and
again notified Noranda of its overdue responses to the
Corporate Deposition Notices. (Rec. doc. 17-12).
• Following up on Noranda's incomplete October 10
responses, on October 12, 2017, Associated requested that
Noranda “produce all responsive documents within seven
days or issue supplemental discovery responses certifying
that no such documents exist.” (Rec. doc. 17-9).
• One week before the noticed depositions, on October
18, 2017, Associated's counsel yet again requested
complete responses to its written discovery. (Rec. doc.
• Noranda's ongoing failure to respond to these
requests caused Associated's counsel to request a
telephone conference with this Court, during which the Court
was first informed that Noranda did not “own” the
claim that it was asserting as the nominal plaintiff in this
matter. The Court directed counsel for Noranda to inform it
and Associated within 48 hours of the ...