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In re Crosby Marine Transportation, LLC

United States District Court, E.D. Louisiana

August 17, 2018

IN THE MATTER OF CROSBY MARINE TRANSPORTATION, LLC, ET AL.

         SECTION: “E” (4)

          ORDER

          KAREN WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.

         Before the Court is a Motion to Compel and for Sanctions and Contempt (R. Doc. 28) filed by Claimants Kathy Randle and Anna Clark. These Claimants seek an order compelling Non-Party Gulf Coast Marine, LLC (“GCM”) to produce subpoenaed documents as well as sanctions in the form of costs, attorney's fees, and a finding of contempt. The motion is opposed. R. Doc. 34. A reply was filed as well. R. Doc. 37. Claimants then sought leave to file a supplemental reply, which was granted. R. Doc. 46. Oral argument was heard on May 16, 2018.

         I. Background

         The instant litigation was originally filed by Crosby Marine Transportation, LLC, Crosby Tugs, LLC, and Bertucci Contracting Company, LLC, as a limitation of liability action pursuant to Rule 9(h) of the Federal Rules of Civil Procedure. R. Doc. 1. On November 19, 2017, the M/V DELTA DUCK and Barge BBL 708 were moored against the bank of Bayou Segnette when a collision occurred between a recreational fishing vessel and the barge, resulting in a fatality. Id. Claimants contend that they were traveling to a camp located on Tar Paper Canal on Bayou Segnette when an allission occurred and which was caused by the Petitioners operation of the M/V DELTA DUCK and Barge BBL 708 without adequate lighting and adequate mooring such that navigation was impeded and a dangerous condition was created for approaching watercraft. R. Docs. 7, 8, 11. It is further alleged that the operator of the recreational fishing boat was under the influence of alcohol and operating that vessel negligently. R. Docs. 8, 24, 27. Petitioners also allege that the recreational fishing vessel was not kept in a safe and seaworthy condition. R. Docs. 24, 25, 26, 27.

         The instant motion was filed by Claimants Randle and Clark seeking an order compelling non-party Gulf Coast Marine, LLC (“GCM”) to produce subpoenaed documents as well as for sanctions and a finding of contempt. R. Doc. 28. In opposition, GCM contends that the information sought has been provided and the subpoena is premature. R. Doc. 34. In reply, the Claimants contend that in response to any argument regarding prematurity, the Rule 26(f) conference requirement was waived by because GCM's counsel is the same as the Petitioners' counsel who had also previously served subpoenas. R. Docs. 35. 46.

         II. Standard of Review

         Federal Rule of Civil Procedure (“Rule”) 45 governs subpoenas. Rule 45(g) states that “the court for the district where compliance is required...may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.” Fed.R.Civ.P. 45(g).

         Rule 26 governs the general provisions of discovery. Under Rule 26(d) a party may not seek discovery “from any source before the parties have conferred as required by Rule 26(f), except in proceedings exempted from initial disclosures under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.” Fed.R.Civ.P. 26(d)(1).

         Rule 26(f) requires that the parties must “confer as soon as practicable-and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).” Fed.R.Civ.P. 26(f)(1)

         III. Analysis

         In order to best analyze and provide a basis for its decision, the Court lays out the factual background that gave rise to the instant motion. The Court notes the lack of straightforward communication between attorneys in this matter led to entirely unnecessary motion practice that could have been easily avoided with a phone call.

         Claimants indicate that they sought to bring in the insurers directly in the matter. Claimants counsel indicated that he asked for the names of the insurers and Petitioners' counsel asked for an interrogatory request. Claimants, thereafter, sent the interrogatory and Petitioners responded. Petitioners state that they received the interrogatory request, but at no point did they stipulate or that they waived their rights under Rule 26 regarding discovery. Petitioners also state that this information was also sent without objection and prior to the thirty days allowed to respond under Rule 33. However, Claimants state that the response was missing information because it did not break down Lloyd's of London's percentage of coverage by each of the syndicates. Claimants counsel stated that he then sent a follow-up communication asking for the remainder of the information, which was who the remaining insurers were with respect to the policies. However, Claimants counsel states that he received no follow-up.

         Claimants' counsel then states he sent a subpoena to non-party Gulf Coast Marine on the belief that it was either the agent or the broker for the Petitioners. Claimants' counsel states that pursuant to the Federal Rules, he provided a notice and copy of the subpoena to the parties prior to service on GCM and once again heard nothing from the Petitioners or GCM. Further, Claimants argue that they heard no objection to the subpoena being premature. Claimants ...


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