United States District Court, E.D. Louisiana
IN THE MATTER OF CROSBY MARINE TRANSPORTATION, LLC, ET AL.
WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
Standard of Review
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.”
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).
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)
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.
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
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 ...