United States District Court, E.D. Louisiana
ORDER & REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE
OF MOTION AND RELIEF REQUESTED
the Court is the Report and Recommendation issued by the
United States Magistrate Judge assigned to this case.
(Rec. Doc. 34.) On November 8, 2017,
Associated Terminals, LLC (“Associated”) filed a
Motion to Dismiss With Prejudice for Failure to Comply
with a Court Order and Abuse of Discovery. (Rec. Doc. 17.)
The Court referred the motion to the Magistrate Judge for a
Report and Recommendation. After a hearing, the Magistrate
Judge issued his Report on January 4, 2018, with the
recommendation that the motion be granted and that the claims
of Noranda Alumina, LLC (“Noranda”) be dismissed
with prejudice. (Rec. Doc. 34.) Noranda filed an objection to
the Report (Rec. Doc. 36) and Associated filed a response
(Rec. Doc. 39). Having considered the motion, the Magistrate
Judge's Report and Recommendation, the legal memoranda,
the record, and the applicable law, the Court finds that the
motion should be GRANTED.
Facts and Procedural Background
case concerns cross-claims for property damage arising out of
stevedoring operations at Noranda's Gramercy, Louisiana
facility. Specifically, Noranda has asserted a claim for
damages against Associated arising out of the March 2016
partial collapse of Noranda's dock fendering system.
Associated filed a counterclaim for damage to the hull of its
vessel, the M/V MISS TARA, allegedly caused by the
deteriorated condition of the dock.
October 2015, Associated began stevedoring operations for
Noranda at the Gramercy facility. Associated was tasked with
unloading bauxite from oceangoing vessels with the help of
Associated's crane barges. Associated alleges that it was
hesitant to commence operations on the dock due to the
dock's deteriorated condition but proceeded after
receiving various assurances from Noranda that improvements
would be forthcoming. On February 8, 2016, Noranda filed for
Voluntary Chapter 11 Bankruptcy. Associated alleges that at
that time, Noranda owed Associated over $1.3 million for
services rendered, however it continued its operations for
Noranda. Associated claims that it has not recovered any of
those accounts receivable to date.
March 16, 2016, part of Noranda's dock face and fender
system collapsed into the river. On May 9, 2016, Associated
discovered significant damage to its crane barge, the M/V
MISS TARA, which was allegedly caused by submerged portions
of the collapsed dock structure. After discovering the
damage, Associated immediately placed Noranda on notice that
it held Noranda responsible for the damages.
any prior notice of a claim, on June 6, 2016, Noranda filed
an Adversary Complaint against Associated in Noranda's
Chapter 11 Bankruptcy proceeding in the United States
Bankruptcy Court for the Eastern District of Missouri. In the
complaint, Noranda alleges that Associated caused the
Gramercy dock collapse by damaging the dock during its
stevedoring operations. Noranda seeks $1.5 million from
Associated for a new dock fender system.
August 4, 2016, Associated filed an answer and counterclaim
for the damage caused to the M/V MISS TARA. On August 10,
2016, Associated issued to Noranda the written discovery that
is the subject of the instant motion, responses to which were
due on September 28, 2016. Noranda did not respond to the
November 23, 2016, the bankruptcy proceeding was closed and
Noranda transferred the claims to this Court. The following
is a summary of the relevant procedural history pertinent to
the present motion:
- On March 23, 2017, the Court issued a Scheduling Order
(Rec. Doc. 6), setting forth the following deadlines:
o Plaintiff's expert reports due August 9, 2017
o Pretrial motion deadline September 26, 2017
o Discovery deadline October 6, 2017
o Pretrial conference November 11, 2017
o Non-jury Trial December 4, 2017
Beginning on May 3, 2017, counsel for Associated began
inquiring about Noranda's overdue responses to
Associated's written discovery requests (issued August
10, 2016, responses due September 28, 2016). Associated
formally inquired about the responses again on June 12, 2017
and July 13, 2017. Associated warned Noranda that it would
file a motion to compel if Noranda failed to timely provide
responses. (Rec. Doc. 7-3.)
August 3, 2017, Associated arranged a Rule 37 discovery
conference and a second conference on August 10, 2017. (Rec.
Doc. 7.) Despite the two conferences, Noranda still did not
provide responses to Associated's discovery requests.
August 11, 2017, Associated requested dates for corporate
depositions and the depositions of four fact witnesses.
Noranda did not provide any available dates. (Rec. Doc.
August 14, 2017, Associated filed a 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 the
discovery delay was his fault because he had been busy
attending to another case, but was “endeavoring to
provide Noranda's responses to Associated's discovery
prior to the motion hearing on August 30, 2017.” (Rec.
Doc. 9 at 2.)
August 23, 2017 and August 28, 2017, Associated again sought
dates from Noranda for the depositions of Noranda's fact
witnesses. Noranda again provided no dates. (Rec. Doc.
August 30, 2017, after the hearing on the motion to compel,
the Magistrate Judge ordered Noranda to fully and formally
respond to the outstanding discovery within 14 days, without
objection. (Rec. Doc. 10.) The Magistrate Judge held
Associated's request for reasonable expenses, including
attorneys' fees, in abeyance pending compliance with the
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.
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.
September 13, 2017, the deadline ordered by the Magistrate
Judge for Noranda to provide full and complete responses to
written discovery without objection, 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 the Magistrate
same day (when responses were due per the Magistrate
Judge's order) Noranda's counsel requested certain
material, responsive information from his client. (Rec. Doc.
September 15, 2017, two days after the Magistrate Judge
ordered full and complete responses, Noranda provided
Associated with partial, incomplete responses. (Rec. Doc.
October 10, 2017, due to Noranda 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 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 document exist.” (Rec. Doc. 17-9.)
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 the Magistrate Judge, during which Noranda
stated for the first time that it did not “own”
the claim that it was asserting as the nominal plaintiff in
this matter. The Magistrate Judge gave Noranda 48 hours to
notify him and Associated of the identity of the real party
in interest that owns the claim being asserted by Noranda.
October 25, counsel for Noranda informed the Magistrate Judge
by letter that the true owner of the claim is non-party,
Gramercy Holdings I, LLC (“Gramercy Holdings”),
and that there were no funds remaining in the estate of the
bankrupt debtor (Noranda) to satisfy any judgment against it
in this case. (Rec. Doc. 30.)
November 1, 2017, the Magistrate Judge held a Court-ordered
settlement conference with the parties, which was
unsuccessful. (Rec. Doc. 15.)
November 7, 2017, due to a conflict in the Court's
calendar, the Court issued an order continuing the November
9, 2017 pretrial conference and December 4, 2017 trial. (Rec.
Doc. 16.) The Court also ordered that the parties ...