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Noranda Alumina, LLC v. Associated Terminals, LLC

United States District Court, E.D. Louisiana

January 2, 2018

NORANDA ALUMINA, LLC
v.
ASSOCIATED TERMINALS, LLC

         SECTION: "J"(5)

          REPORT AND RECOMMENDATION

          MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE

         Before 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).

         After 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.

         A. Relevant Procedural History

         This 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.

         Less 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.[1] 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.

         On 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).

         When the bankruptcy proceeding was closed, on November 23, 2016, Noranda transferred the competing claims to this Court. (Rec. doc. 1).

         The 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 and dates:

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 overdue.
• 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.[2] (Rec. doc. 17-8).
• On September 15, 2017, two days after this Court ordered full and complete responses, Noranda provided partial, incomplete responses[3] 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. 17-13).
• 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 ...

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