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Naz, LLC v. United National Insurance Co.

United States District Court, E.D. Louisiana

June 21, 2018


         SECTION: “H” (4)



         Before the Court is the Defendant, United National Insurance Company's (“UNIC”), Motion to Compel (R. Doc. 49). The motion is opposed. R. Doc. 51. The motion was heard on the briefs.

         I. Background

         This litigation was originally filed by the Plaintiff, NAZ, LLC (“NAZ”), in state court on April 20, 2017. The Defendant removed the action to federal court on June 9, 2017. In its petition the plaintiff states that it is the owner of a medical center that was insured by UNIC. It contends that it began expanding its medical facility, which included the installation of an Ingenia 3.0T Omega MRI. Plaintiff contends in late December of 2014 the MRI, purchased from Philips Healthcare, was installed in the facility and deemed safe for patient use. NAZ alleges on January 13, 2015, several Philips engineers discovered the MRI machine had moved several inches from the original installation point and ordered a de-energizing and quench of the machine involving a release of helium through a vent in the roof. On January 15, 2015, it was discovered that rainwater entered an opening in the roof at the helium pipe vent causing damage to the medical center and Plaintiff contends it incurred substantial costs in repairing the facility.

         Plaintiff alleges that communications and visits with claims adjustors occurred in late 2015 and throughout 2016 and Dr. Shamsnia, the principal of NAZ, gathered and produced documents for the investigation. Plaintiff states on September 23, 2016, it received a reservation of rights letter from UNIC, a sworn proof of loss form to be completed, and a communication that the investigation was still on-going. Plaintiff argues it complied but never received any indication as to what steps of the investigation were ongoing, nor was it informed that any time limitation for suit under the policy was approaching. Plaintiff alleges a second reservation of rights letter was received in December of 2016 once again not notifying NAZ of the steps of the investigation or that a limitation provision of the policy was approaching. Plaintiff contends that UNIC's course of conduct was meant to allow UNIC to not take any affirmative duties, while it allowed the claim to expire.

         Plaintiff alleges that: (1) UNIC breached the insurance contract by failing to reasonably and promptly investigate the loss and failed to acknowledge liability for the claim despite proof of loss; (2) UNIC has made repeated misrepresentations regarding the coverage, omissions with respect to the two-year time limitation of the policy, failing to provide any documentation with respect to the investigation, giving no basis for rejecting the proof of loss, and misrepresenting the investigation was on-going while it was waiting for the claim to expire; and (3) breach of the duty of good faith and fair dealing.

         The instant motion was filed by UNIC seeking an order compelling NAZ to provide adequate supplemental responses to its Interrogatory Nos. 6, 7, 13, and 14 and Request for Production No. 7. R. Doc. 49. UNIC argues the discovery requests were propounded on January 9, 2018 and NAZ answered on April 3, 2018. UNIC states it sent a detailed letter to NAZ on April 18, 2018 outlining the deficiencies in the responses and requested a discovery conference on April 27, 2018. Due to counsel for NAZ's unavailability on the proposed date, the telephone conference was held on May 3, 2018 at which time NAZ's counsel stated supplementation would occur on May 11, 2018. UNIC states no supplementation was provided and the instant motion was filed on May 16, 2018.

         The motion is opposed. R. Doc. 51. NAZ admits that it has had difficulty in gathering responsive documents to the request. However, NAZ states that after the motion was filed it produced another 300 pages of documents responsive to Interrogatory Nos. 13 and 14 and RFP No. 7. Further, Plaintiff states it has provided the approximate date that NAZ contacted the attorney listed in a UNIC's claim adjustor's notes, which is responsive to Interrogatory Nos. 6 and 7. NAZ argues that based on this supplementation the motion is now moot. Further, it argues that to the extent the information is still deemed insufficient two depositions will be occurring such that any additional responsive information can be obtained from those depositions.

         II. Law and Analysis

         This Court has held multiple times that it is axiomatic that the, “[c]ompletion of discovery means that ... any related discovery disputes must be resolved by the deadline as well.” Parkcrest Builders, LLC v. Housing Auth. New Orleans, No. 15-1533, 2017 WL 4156499 (E.D. La. Sept. 19, 2017) (citing Fairley v. Wal-Mart Stores, Inc., No. 14-0462, 2016 WL 2992534, at *1 (E.D. La. May 24, 2016)); See also Global Int'l Marine, Inc. v. HLC Tugs, LLC, No. 09-1375, 2010 WL 11538478, at *1 (E.D. La. July 19, 2010); Front-Line Promotions & Mktg., Inc. v. Mayweather Promotions, LLC, No. 08-3208, 2009 WL 928568, at *4 (E.D. La. Apr. 2, 2009). This means that a motion to compel discovery must be resolved, not just filed, by the discovery deadline.

         The Scheduling Order states that “[d]epositions for trial use shall be taken and all discovery shall be completed no later than May 4, 2018.” R. Doc. 42. The instant motion to compel was filed on May 16, 2018 and was set for hearing June 6, 2018. Both the date of the filing of the motion as well as the hearing date are outside of the of the discovery deadline established by the District Court and the motion cannot be resolved within that deadline. R. Doc. 49. Because the motion to compel is unable be resolved within the Scheduling Order's deadline, UNIC is required to provide good cause why it should be permitted to seek discovery after the deadline.

         In determining whether a party has provided good cause to seek discovery beyond the deadline set in the Scheduling Order, Courts may examine four factors: “(1) the explanation for the untimely conduct; (2) the importance of the requested untimely action; (3) potential prejudice in allowing the untimely conduct; and (4) the availability of a continuance to cure such prejudice.” Huey v. Super Fresh/Sav-A-Center, Inc., No. 07-1169, 2008 WL 2633767, at *1 (E.D. La. June 25, 2008) (citing S & W Enters., LLC v. S. Trust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir. 2003)). “The good cause standard requires the party seeking relief to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension.” S & W Enters., LLC, 315 F.3d at 535 (internal quotations and citations omitted).

         In the motion UNIC states that it propounded the discovery in dispute to NAZ on January 9, 2018. At the time these discovery requests were propounded the discovery deadline in the case was February 6, 2018 and on February 2, 2018 the District Court granted a continuance. NAZ proceeded to answer the discovery requests on April 3, 2018. On April 18, 2018, UNIC then sent a letter to NAZ detailing the deficiencies in the discovery responses, requested a discovery conference on April 27, 2018, and ultimately a discovery conference was held on May 3, 2018. This all occurred prior to the discovery deadline in the instant matter. During the May 3, ...

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