Brenford Environmental Systems, L.P. v. Pipeliners of Puerto Rico, Inc. et al, No. 3:2009cv01036 - Document 45 (D.P.R. 2010)
Court Description: OPINION AND ORDER denying re 43 MOTION to Compel against Endurance Reinsurance Corporation of America filed by Brenford Environmental Systems, L.P., granting 41 MOTION to Compel filed by Brenford Environmental Systems, L.P. Signed by Chief Mag. Judge Justo Arenas on 8/2/2010.(nydi)
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Brenford Environmental Systems, L.P. v. Pipeliners of Puerto Rico, Inc. et al 1 Doc. 45 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 5 BRENFORD ENVIRONMENTAL SYSTEM, L.P., 6 7 Plaintiff, 8 v. 9 PIPELINERS OF PUERTO RICO, INC., A/K/A THE OIL & GREASE COMPANY, INC.; ENDURANCE REINSURANCE CORPORATION OF AMERICA; JOHN DOE; ABC CORP.; AND XYZ INSURANCE COMPANY, 10 11 12 CIVIL 09-01036 (JA) 13 14 Defendants 15 16 OPINION AND ORDER 17 18 19 This matter is before the court on two motions to compel production of documents filed by plaintiff, Brenford Environmental Systems, L.P., against the 20 21 defendants Pipeliners of Puerto Rico, Inc. ( Pipeliners ), filed on May 24, 2010 and 22 against Endurance Reinsurance Corporation of America ( ERCA ), filed on June 1, 23 2010. (Docket Nos. 41 and 43.) Pipeliners did not file an opposition to the 24 25 motion to compel. ERCA filed an opposition to plaintiff s motion on June 16, 2010. 26 (Docket No. 44.) 27 production against Pipeliners is GRANTED and plaintiff s motion to compel 28 For the reasons stated below, plaintiff s motion to compel production against ERCA is DENIED. 29 Dockets.Justia.com 1 CIVIL 09-1036 (JA) 2 2 3 BACKGROUND 4 5 Pipeliners was awarded the bid for a sewer rehabilitation contract by the 6 Puerto Rico Aqueduct and Sewer Authority ( PRASA ) for the cleaning and 7 inspection of the Miramar Sanitary Sewer Main (the Project ). Plaintiff and 8 9 Pipeliners entered into an agreement where plaintiff leased to Pipeliners the 10 equipment and consultants required to complete the Project. (Docket No. 1, at 11 5, ¶ 9.) According to plaintiff, Pipeliners was contractually obligated to make 12 13 lease payments for the rented equipment, consultant fees and miscellaneous 14 expenses associated with the cleaning and inspection of the sewer main. (Id. at 15 7, ¶ 15.) 16 Pipeliners obtained a Surety Bond from ERCA to guarantee payment to all 17 18 subcontractors. According to plaintiff, the Surety Bond enables plaintiff to collect 19 payment from Pipeliners or ERCA. Plaintiff filed this action against Pipeliners and 20 ERCA on January 13, 2009, alleging that they are jointly and severally liable for 21 22 the amount of the invoices and damages due to Pipeliners alleged breach of 23 contract. Pipeliners counterclaimed alleging breach of contract against plaintiff 24 and to recoup the amount already paid to plaintiff in the form of rental payments 25 and the deposit. 26 27 28 29 The parties filed a Joint Discovery Conference Report with this court on August 26, 2009. According to the report, document requests and interrogatories 1 CIVIL 09-1036 (JA) 3 2 3 4 were to be served by October 1, 2009 and answers were to be served within 45 5 days or by November 16, 2009. (Docket No. 31, at 2.) On a joint motion, on 6 May 27, 2010, this court extended the discovery deadline to September 15, 2010. 7 (Docket No. 42.) 8 9 10 11 1. Motion to Compel Production Against Pipeliners Plaintiff sent a document request to Pipeliners on October 20, 2009. Pipeliners had 45 days to respond, but plaintiff received no response. On 12 13 December 7, 2009, plaintiff sent a letter to Pipeliners requesting a response to the 14 discovery request; again plaintiff received no response. 15 conference call on January 21, 2010, during which Pipelines assured plaintiff that 16 The parties had a it would receive a response to its document request by the beginning of the 17 18 following week. When plaintiff received no response, it sent yet another letter to 19 Pipeliners on February 2, 2010, again seeking a response. Pipeliners responded 20 on February 3, objecting to many of the requests, and not providing plaintiff with 21 22 any documents until February 9, when counsel conferred to discuss the objections. 23 On February 11, 2010, after reviewing the documents received on February 9, 24 plaintiff confirmed that the response was incomplete and requested the remaining 25 documents. 26 27 28 29 On February 26, 2010, plaintiff sent a letter to Pipeliners outlining its opposition to Pipeliners objections to the document request. First, plaintiff argued 1 CIVIL 09-1036 (JA) 4 2 3 4 that the objections were waived due to Pipeliners delay in responding to the 5 document request. 6 without merit because they are conclusory and do not explain the basis of the 7 objection. Second, even if the objections are not waived, they are Lastly, plaintiff requested that the parties meet to discuss the 8 9 discovery issues. 10 Pipeliners agreed to meet and after plaintiff made several attempts to 11 schedule a conference to resolve the discovery dispute, Pipeliners responded and 12 13 a meeting was held on April 14. On April 16, 2010, plaintiff sent a letter to 14 Pipeliners confirming the agreement reached at the April 14 meeting. Pipeliners 15 agreed to provide additional documents by May 14, 2010. On May 13, 2010, 16 plaintiff provided Pipeliners with an extension until May 21. As of May 24, 2010, 17 18 the date of this motion, plaintiff has not received the agreed upon documentation 19 from Pipeliners. 20 2. Motion to Compel Production Against ERCA 21 22 Plaintiff sent a document request to ERCA on October 28, 2009. ERCA 23 responded on December 18, 2009. Several discovery issues were subsequently 24 raised by both parties. In ERCA s response to plaintiff s request for production of 25 documents, ERCA objected to many requests based on relevance. On January 5, 26 27 28 29 2010, plaintiff sent a letter to ERCA objecting to the response to plaintiff s document request. On March 30, ERCA reaffirmed its objections and notified 1 CIVIL 09-1036 (JA) 5 2 3 4 plaintiff that it objected to several of plaintiff s responses to ERCA s interrogatory 5 requests. 6 disputes. The next day, plaintiff agreed and a conference was held on April 5, 7 ERCA suggested that the parties meet to discuss the discovery 2010. 8 9 On April 6, plaintiff sent a letter to ERCA summarizing the resolution. ERCA 10 agreed to provide additional documents, while plaintiff agreed to amend its 11 responses to ERCA s interrogatory requests; no deadline was imposed. On 12 13 May 21, 2010, plaintiff provided ERCA with its amended responses and requested 14 the additional documents from ERCA. On May 27, 2010, the court approved a 15 joint motion to extend the discovery deadline to September 15, 2010. Plaintiff 16 then filed the instant motion on June 1, 2010. ERCA opposed the motion on 17 18 19 20 June 16, 2010. DISCUSSION Pursuant to Federal Rule of Civil Procedure 34(a)(1), [a] party may serve 21 22 on any other party a request within the scope of Rule 26(b): (1) to produce and 23 permit the requesting party . . . to inspect, copy . . . any designated documents 24 . . . . Fed. R. Civ. P. 34(a)(1)(A). Subsection (b)(2)(A) of Rule 34 requires that 25 [t]he party to whom the request is directed must respond in writing within 30 26 27 28 29 days after being served. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. Fed. R. Civ. P. 34(b)(2)(A). In this case, the 1 CIVIL 09-1036 (JA) 6 2 3 4 Joint Discovery Report allowed the parties to respond within 45 days. (Docket No. 5 31, at 2.) Subsection (b)(2)(B) further requires that [f]or each item or category, 6 the response must either state that inspection and related activities will be 7 permitted as requested or state an objection to the request, including the 8 9 reasons. Fed. R. Civ. P. 34(b)(2)(B). 10 Rule 37(a)(3)(B) of the Federal Rules of Civil Procedure allows [a] party 11 seeking discovery [to] move for an order compelling . . . production . . . . This 12 13 motion may be made if . . . (iv) a party fails to respond that inspection will be 14 permitted . . . as requested under Rule 34. Fed. R. Civ. P. 37(a)(3)(B)(iv). 15 Plaintiff filed two motions requesting that this court order the defendants, 16 Pipeliners and ERCA, to produce documents responsive to plaintiff s request for 17 18 documents. 19 A. Motion to Compel Against Pipeliners 20 Pursuant to Local Rule 7(b), [u]nless within fourteen (14) days after the 21 22 service of a motion the opposing party files a written objection to the motion, . . . 23 the opposing party shall be deemed to have waived objection. Local Rules of the 24 U.S. Dist. Court for the Dist. of P.R. Rule 7(b). The defendant did not file an 25 opposition, therefore any objection is waived. 26 27 28 29 Plaintiff s motion to compel requires the determination of several issues. First, plaintiff argues that Pipeliners objections to the request for production of 1 CIVIL 09-1036 (JA) 7 2 3 4 documents are waived as they were untimely. Next, plaintiff argues that even if 5 the failure to timely object is excused, Pipeliners has not sufficiently explained its 6 justification for the objections. Pipeliners objections are based on the ground that 7 the request is vague, overly broad and unduly burdensome. (Docket No. 41-4, 8 9 10 11 at 1.) Finally, plaintiff requests that this court order Pipeliners to produce the requested documents as Pipeliners has agreed. Again, under Rule 34(b)(2)(B) a party is required to state that the 12 13 documents will be produced or state the objection to the request, including the 14 reasons. 15 determine that [i]f the responding party fails to timely object or state the reason 16 Fed. R. Civ. P. 34(b)(2)(B). It is within the court s discretion to for the objection, he or she may be held to have waived any objections. Rivera 17 18 v. Kmart Corp., 190 F.R.D. 298, 300 (D.P.R. 2000) (citing Marx v. Kelly, Hart & 19 Hallman, P.C., 929 F.2d 8, 12 (1st Cir. 1991)); see also Krewson v. City of 20 Quincy, 120 F.R.D. 6, 7 (D. Mass. 1988) (quoting Slauenwhite v. Bekum 21 22 Maschinenfabriken, GMBH, 35 Fed. R. Serv. 2d 975 (D. Mass. 1983)) ( If a party 23 fails to file timely objections to document requests, such a failure constitutes a 24 waiver of any objections which a party might have to the requests. Any other 25 result would ... completely frustrate the time limits contained in the Federal Rules 26 27 28 29 and give a license to litigants to ignore the time limits for discovery without any adverse consequences. ) (citations omitted). 1 CIVIL 09-1036 (JA) 8 2 3 4 It is clear that failure to comply with Rule 34(b) does not automatically 5 result in waiver of an objection; it is within the court s discretion to decline to 6 compel the production of requested documents even if a timely objection is not 7 made. Rivera v. Kmart Corp., 190 F.R.D. at 300. ( A party s slip . . . will not 8 9 necessarily short-circuit his or her efforts to preserve a privileged document 10 confidential. ) Although it may be possible for the court to find good cause and 11 excuse the failure to timely object, such as on privilege grounds, an objection that 12 13 a request is vague, overly broad and unduly burdensome is the type of objection 14 that is waived by a party s failure to timely object to the document request. 15 Krewson v. City of Quincy, 120 F.R.D. at 7. 16 Pipeliners was served with a document request on October 20, 2009. 17 18 Pursuant to the Joint Discovery Conference Report, a response should have been 19 sent to plaintiff within 45 days. Pipeliners did not communicate with plaintiff 20 regarding a response until January 21, 2010, where at such time, Pipeliners 21 22 assured plaintiff that a response was forthcoming. After plaintiff sent another 23 inquiry to Pipeliners on February 2, it finally responded to plaintiff s document 24 request on February 3, 2010, 61 days late. It is clear that Pipeliners waived its 25 26 27 28 29 objections by not objecting in a timely manner, as required by Rule 34(b)(2). 1 CIVIL 09-1036 (JA) 9 2 3 4 Alternatively, even if Pipeliners was able to persuade the court that its 5 failure to timely object should be excused1, its objections are insufficient. Rule 6 34(b)(2)(C), requires that [a]n objection to part of a request must specify the 7 part and permit inspection of the rest. Fed. R. Civ. Proc. 34(b)(2)(C). As plaintiff 8 9 10 11 argues, objections based on the ground that the request is vague, overly broad and unduly burdensome are without merit. Asserting a general objection to a request for production of documents 12 13 does not comply with Rule 34(b) of the Federal Rules of Civil Procedure. Rivera 14 v. Kmart Corp., 190 F.R.D. at 301; see also Bank of Mongolia v. M&P Global Fin. 15 Servs., Inc., 258 F.R.D. 514, 519 (S.D. Fla. 2009), reconsideration denied, 2009 16 WL 3294810 (S.D. Fla. Oct. 13, 2009) ( Objections that state that a discovery 17 18 request is vague, overly broad, or unduly burdensome are, standing alone, 19 meaningless and fail to comply with . . . Rule 34's requirement that objections 20 contain a statement of reasons. ) It is well settled that: 21 [t]he party resisting production bears the burden of establishing lack of relevancy or undue burden . . . . [T]he mere statement by a party that the interrogatory [or request for production] was overly broad, burdensome, oppressive and irrelevant is not adequate to voice a successful objection. . . . On the contrary, the party resisting discovery must show specifically how . . . each interrogatory [or request for production] is not 22 23 24 25 26 27 28 29 1 Pipeliners has not proferred any reason for its delay in responding to plaintiff s discovery requests, nor did it file an objection to this motion. 1 CIVIL 09-1036 (JA) 10 2 3 relevant or how each question burdensome or oppressive. 4 is overly broad, 5 6 Aponte-Navedo v. NALCO Chem. Co., F.R.D. , 2010 WL 2000317, at *5 7 (D.P.R. May 20, 2010) (quoting Sánchez-Medina v. UNICCO Serv. Co., 265 F.R.D. 8 24, 27 (D.P.R. 2009) (quoting St. Paul Reinsurance Co. v. Commercial Fin. Corp., 9 198 F.R.D. 508, 511-12 (N.D. Iowa 2000) (citations omitted)). 10 11 In light of Pipliners failure to timely object to plaintiff s document requests 12 or to provide specific reasons for its objections, the court holds that Pipeliners 13 objections to the requests are waived. 14 15 Furthermore, Pipeliners has not provided any excuse for its failure to 16 produce the requested documents. 17 Pipeliners has not complied with any deadline; not the 45 days allowed by the 18 Since the document request was filed, Federal Rules, nor deadlines that were mutually agreed-upon, and not even self- 19 20 imposed deadlines. The court expects that self-imposed deadlines and mutually 21 agreed upon dates will be met. See Cintrón-Lorenzo v. Departamento de Asuntos 22 del Consumidor, 312 F.3d 522, 526 (1st Cir. 2002) (quoting Tower Ventures, Inc. 23 v. City of Westfield, 296 F.3d 43, 47 (1st Cir. 2002)) ( [w]hen a litigant . . . 24 25 proposes a compliance date, the court is entitled to expect that the litigant will 26 meet its self-imposed deadline. ). 27 Plaintiff s motion to compel production of documents as to Pipeliners is 28 29 GRANTED. 1 CIVIL 09-1036 (JA) 11 2 3 4 B. Motion to Compel Against ERCA 5 Plaintiff requests that this court order ERCA to produce all documents it 6 failed to provide in its initial response and those that the parties agreed upon at 7 the April 5 meeting. Plaintiff concludes that due to the continuing delay tactics 8 9 and non-compliance, [plaintiff] has no other alternative but to seek assistance 10 from this Honorable Court . . . . (Docket No. 43, at 3, ¶ 9.) Plaintiff does not 11 allege that ERCA failed to comply with a specific deadline or was non-responsive 12 13 to its requests. 14 Alternatively, ERCA argues that the motion should be denied because 15 plaintiff has not complied with Local Rule 26, which requires that a moving party 16 make a reasonable and good-faith effort to reach an agreement with opposing 17 18 counsel on the matters set forth in the motion. Local Rules of the U.S. Dist. 19 Court for the Dist. of P.R. Rule 26(b). Local Rule 26(b) and Federal Rule of Civil 20 Procedure 37(a)(1) requires that before filing a motion to compel, the moving 21 22 party has to certify that it has made a reasonable and good-faith effort to [try 23 and solve the discovery dispute] with opposing counsel without the court s 24 intervention. Aponte-Navedo v. NALCO Chem. Co., 25 28 29 , 2010 WL 2000317, at *10 (quoting Local Rules of the U.S. Dist. Court for the Dist. of P.R. 26 27 F.R.D. Rule 26(b)). 1 CIVIL 09-1036 (JA) 12 2 3 4 To date, ERCA has produced over 1,000 pages of documents, has shown a 5 good faith effort in resolving the discovery disputes evidenced by its consistent 6 communication with plaintiff and has agreed to produce additional documents. 7 Although plaintiff certifies that it has made reasonable and good faith efforts to 8 9 reach an agreement with opposing counsel . . . in compliance with Local Rule 26, 10 (Docket No. 43, at 3, ¶ 9), I find that they did not. 11 evidence to substantiate its certification, nor the claim that ERCA has engaged in Plaintiff does not offer 12 13 continuing delay tactics. Morever, in ERCA s opposition to the motion, it asserts 14 that it is working on its amended responses and they are forthcoming. Therefore, 15 plaintiff s motion to compel production of documents against ERCA is DENIED. 16 CONCLUSION 17 18 In view of the above, plaintiff s motion to compel production against 19 Pipeliners is GRANTED and plaintiff s motion to compel production against ERCA 20 is DENIED. 21 22 23 24 25 26 27 28 29 SO ORDERED. At San Juan, Puerto Rico, this 2d day of August, 2010. S/ JUSTO ARENAS Chief United States Magistrate Judge
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