UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
VICTOR CRISTEA, ET AL. CIVIL ACTION
VERSUS NUMBER: 23-2768
ARBORPRO, INC., ET AL. SECTION “O” (5)
ORDER
Before the Court is the Motion to Reset Hearing and Reconsider Order on Plaintiffs’ First Motion to Compel Discovery Responses from Defendants ArborPro, Inc., and the City of New Orleans. (Rec. doc. 54). Defendants ArborPro, Inc. (“ArborPro”) and the City of New Orleans (“the City”) oppose the motion (rec. docs. 55, 56), and Plaintiffs have filed a reply. (Rec. doc. 58). Having reviewed the pleadings and the case law, the Court rules as Ifo. llowsR. econsideration
On January 19, 2024, Plaintiffs filed a Motion to Compel Discovery Responses from Defendants ArborPro, Inc., and the City of New Orleans. (Rec. doc. 49). This Court set the motion for oral hearing on February 21, 2024. (Rec. doc. 51). On February 9, 2024, ArborPro opposed the motion and included its responses to Plaintiffs’ discovery requests with its opposition. (Rec. doc. 52). The City failed to timely oppose the motion. Accordingly, on February 16, 2024, this Court issued the following Order on Plaintiffs’ first motion to compel: Before the Court is the Motion to Compel Discovery Responses from Defendants ArborPro, Inc. and the City of New Orleans (rec. doc. 49) filed by Plaintiffs. Defendant ArborPro, Inc. filed an opposition to the motion, attached to which are its discovery responses. (Rec. doc. 52). Defendant the City of New Orleans filed no opposition to the motion in accordance with the local rules of this Court. Having reviewed the pleadings, IT IS ORDERED DISMISSED WITHOUT t hPaRt EthJUe DMIoCtEio An St oM COomOTpe lI ND isPcAoRveTry Responses from Defendants ArborPro, Inc. and the City of New Orleans (rec. doc. 49) is as it pertains to ArborPro, Inc. This Order reserves the right to Plaintiffs to file the appropIrTia teIS m oFtUioRnT tHoE cRh alOleRnDgeE RthEeD sufficiency of ArborPro, IGnRc.A’sN dTisEcDov eArSy rUeNspOoPnPsOesS,E sDho IuNld P cAirRcTumstances so warrant. that the motion is no later than seven (7) days from th ea sd iatt ep eorft athiniss Otor dtheer City Of New Orleans, who shall respondIT i nIS f uFlUl aRnTdH iEnR w OriRtiDngE RtoE DPlaintiff’s discovery requests CANCELLED . that the oral hearing set on February 21, 2024 is . (Rec. doc. 53). Plaintiffs now ask the Court to reconsider that Order. Since the Federal Rules of Civil Procedure do not specifically recognize a motion for reconsideration, such motions are treaHteodt aarsd e vit. hAevro an dmaoleti oInnd tuos .c, hInalcl.enge a judgment or order under Rule 54(b), 59(e), or 60(b). reconsideration denied , No. CV 20-1877, 2023 WL 6448840, at *3 (E.D. La. Oct. 3, 2H0o2l3m)e, s v. Reddoch , No. CV 20-1877, 2023 WL 8237272 (E.D. La. Nov. 28, 2023); , 19-12749, 2022 WL 16712872 at *2 (E.D. La. Nov. 4, 2022). While Rules 59 and 60 apply to final judgments only, “if a party seeks reconsideration of an order that adjudicates fewer than all tHheo lcmlaeisms among all the parties prior to entry of final judgment, then Rule 54(b) controls.” , 2022 WL 16712872, at *2. Rule 54 provides that district courts “possess[ ] the inherent procedural power to Mreelcaonncsoidn evr. , Treexsaccino,d I,n oc.r modify an interlocutory order for cause seen by it to be sufficient.” , 659 F.2d 551, 552 (5th Cir. 1981). Additionally, the Fifth ZCairpcautiat vh.a Ms ehseloldn that discovery orders are interlocutory because such orders are nonfinal. , 750 F.3d 481, 484 (5th Cir. 2014). Under such a standard, district courts can be “more flexible, reflecting the inherent power of the rendering district court to afford such relief from interlocutory Austin v. Kroger Tex., L.P. judgments as justice requires.” , 864 F.3d 326, 336-37 (5th Cir. 2017). Though this standard is lower than the threshold used for reconsideration of
judgments under Rule 59, courts still “loEodkw taor sdism vil. aTra ckoen sFiod’e Rraetcioorndss ,a Isn tch.ose it considers when evaluating Rule 59(e) motions.” , Civ. A. No. 19- 12130, 2020 WL 3832606 at *11 & n.2 (E.D. La. July 8, 2020). These considerations include “(1) an intervening change in the controlling law, (2) the aHvaeinlaryb ivli. tNy eowf nOerlwea envsi dLean. Scaei nntost, pL.rLe.Cvi.ously available, or (3) a manifest error in law or fact.” , No. 15-5971, 2016 WL3524107, at *2 (E.D. La. June 28, 2016). PRlaoiqnutief fvs. hBarvoet hneort Ionftf'el rCeodr pth. is Court any reason why it should reconsider its earlier ruling. , No. Civ. A. 13-4778, 2013 WL 5839376, at *1 (E.D. La.
Oct. 29, 2013). Plaintiffs raise two arguments in favor of reconsideration that this Court will consider seriatim. Plaintiffs first argue that Defendants – even ArborPro – failed to timely oppose their motion to compel. While this is true with regard to the City – and this Court granted Plaintiffs’ motion to that effect – it is not true as to ArborPro. As noted above, this Court set the motion for oral hearing on February 21, 2024. Despite Plaintiffs setting the motion for submission on February 7, 2024, February 21, 2024 became the submission date when this Court set the motion for oral hearing on that date. This Court’s order made any opposition
due eight days before that date, which was February 13, 2024. E.D. La. Loc. R. 7.5. ArborPro timely filed its opposition with its responses on February 9, 2024. This argument 1 lacks merit. Second, Plaintiffs contend that simply because ArborPro produced “something,” its responses did not render their motion moot. Yes, they did. Plaintiffs’ motion was a simple motion to compel. Once ArborPro responded, the motion to compel had no further purpose. If a party is not satisfied with the production that it has received in response to a motion to compel, then that party must file the appropriate motion to challenge the sufficiency of the responses or a similar motion to that effect. This Court will not entertain a full motion to compel when some, if DnEoNt aIEllD, of the issues have been rendered moot by an IinI.i tial pArrobdourcPtiroon’.s RReecsopnosnidseersation is .
In the second part of their motion, Plaintiffs challenge certain deficiencies with regard to ArborPro’s and the City’s initial responses. Had motion practice proceeded properly, this is the substance of the motion that Plaintiffs should have filed after the Court dismissed their initial motion to compel as moot as it related to ArborPro. In this section of the motion, Plaintiffs maintain that ArborPro and the City have failed to provide certain documents. To clarify the Court’s following ruling on the proportionality of Plaintiffs’ discovery requests, some background is necessary. This matter arises as a result of tragic and critical
injuries sustained by a child when a large limb broke away from an oak tree (the “subject tree”) and fell, crushing him. On July 7, 2023, Plaintiffs and their two children, a Texas Schexnaydre v. Entergy Operations, Inc. 1 , CiIvd.. A. No. 13-279, 2016 WL 541439, at *2 (E.D. La. Feb. 11, 2016), family visiting New Orleans, were sitting on a bench under an oak tree in Jackson Square when the tree limb fell, striking the child, G.C. (Rec. doc. 2-1 at 1-2, 10). G.C. remains hospitalized in a coma and his future is uncertain. (Rec. doc. 11-1 at 3). Plaintiffs brought
this suit individually and as natural tutors of G.C., alleging that Defendants ArborPro, the City, and others are liable for G.C.’s injuries, as well as Plaintiffs’ emotional distress and loss of consortium. (Rec. doc. 2-1 at 11-12).
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
VICTOR CRISTEA, ET AL. CIVIL ACTION
VERSUS NUMBER: 23-2768
ARBORPRO, INC., ET AL. SECTION “O” (5)
ORDER
Before the Court is the Motion to Reset Hearing and Reconsider Order on Plaintiffs’ First Motion to Compel Discovery Responses from Defendants ArborPro, Inc., and the City of New Orleans. (Rec. doc. 54). Defendants ArborPro, Inc. (“ArborPro”) and the City of New Orleans (“the City”) oppose the motion (rec. docs. 55, 56), and Plaintiffs have filed a reply. (Rec. doc. 58). Having reviewed the pleadings and the case law, the Court rules as Ifo. llowsR. econsideration
On January 19, 2024, Plaintiffs filed a Motion to Compel Discovery Responses from Defendants ArborPro, Inc., and the City of New Orleans. (Rec. doc. 49). This Court set the motion for oral hearing on February 21, 2024. (Rec. doc. 51). On February 9, 2024, ArborPro opposed the motion and included its responses to Plaintiffs’ discovery requests with its opposition. (Rec. doc. 52). The City failed to timely oppose the motion. Accordingly, on February 16, 2024, this Court issued the following Order on Plaintiffs’ first motion to compel: Before the Court is the Motion to Compel Discovery Responses from Defendants ArborPro, Inc. and the City of New Orleans (rec. doc. 49) filed by Plaintiffs. Defendant ArborPro, Inc. filed an opposition to the motion, attached to which are its discovery responses. (Rec. doc. 52). Defendant the City of New Orleans filed no opposition to the motion in accordance with the local rules of this Court. Having reviewed the pleadings, IT IS ORDERED DISMISSED WITHOUT t hPaRt EthJUe DMIoCtEio An St oM COomOTpe lI ND isPcAoRveTry Responses from Defendants ArborPro, Inc. and the City of New Orleans (rec. doc. 49) is as it pertains to ArborPro, Inc. This Order reserves the right to Plaintiffs to file the appropIrTia teIS m oFtUioRnT tHoE cRh alOleRnDgeE RthEeD sufficiency of ArborPro, IGnRc.A’sN dTisEcDov eArSy rUeNspOoPnPsOesS,E sDho IuNld P cAirRcTumstances so warrant. that the motion is no later than seven (7) days from th ea sd iatt ep eorft athiniss Otor dtheer City Of New Orleans, who shall respondIT i nIS f uFlUl aRnTdH iEnR w OriRtiDngE RtoE DPlaintiff’s discovery requests CANCELLED . that the oral hearing set on February 21, 2024 is . (Rec. doc. 53). Plaintiffs now ask the Court to reconsider that Order. Since the Federal Rules of Civil Procedure do not specifically recognize a motion for reconsideration, such motions are treaHteodt aarsd e vit. hAevro an dmaoleti oInnd tuos .c, hInalcl.enge a judgment or order under Rule 54(b), 59(e), or 60(b). reconsideration denied , No. CV 20-1877, 2023 WL 6448840, at *3 (E.D. La. Oct. 3, 2H0o2l3m)e, s v. Reddoch , No. CV 20-1877, 2023 WL 8237272 (E.D. La. Nov. 28, 2023); , 19-12749, 2022 WL 16712872 at *2 (E.D. La. Nov. 4, 2022). While Rules 59 and 60 apply to final judgments only, “if a party seeks reconsideration of an order that adjudicates fewer than all tHheo lcmlaeisms among all the parties prior to entry of final judgment, then Rule 54(b) controls.” , 2022 WL 16712872, at *2. Rule 54 provides that district courts “possess[ ] the inherent procedural power to Mreelcaonncsoidn evr. , Treexsaccino,d I,n oc.r modify an interlocutory order for cause seen by it to be sufficient.” , 659 F.2d 551, 552 (5th Cir. 1981). Additionally, the Fifth ZCairpcautiat vh.a Ms ehseloldn that discovery orders are interlocutory because such orders are nonfinal. , 750 F.3d 481, 484 (5th Cir. 2014). Under such a standard, district courts can be “more flexible, reflecting the inherent power of the rendering district court to afford such relief from interlocutory Austin v. Kroger Tex., L.P. judgments as justice requires.” , 864 F.3d 326, 336-37 (5th Cir. 2017). Though this standard is lower than the threshold used for reconsideration of
judgments under Rule 59, courts still “loEodkw taor sdism vil. aTra ckoen sFiod’e Rraetcioorndss ,a Isn tch.ose it considers when evaluating Rule 59(e) motions.” , Civ. A. No. 19- 12130, 2020 WL 3832606 at *11 & n.2 (E.D. La. July 8, 2020). These considerations include “(1) an intervening change in the controlling law, (2) the aHvaeinlaryb ivli. tNy eowf nOerlwea envsi dLean. Scaei nntost, pL.rLe.Cvi.ously available, or (3) a manifest error in law or fact.” , No. 15-5971, 2016 WL3524107, at *2 (E.D. La. June 28, 2016). PRlaoiqnutief fvs. hBarvoet hneort Ionftf'el rCeodr pth. is Court any reason why it should reconsider its earlier ruling. , No. Civ. A. 13-4778, 2013 WL 5839376, at *1 (E.D. La.
Oct. 29, 2013). Plaintiffs raise two arguments in favor of reconsideration that this Court will consider seriatim. Plaintiffs first argue that Defendants – even ArborPro – failed to timely oppose their motion to compel. While this is true with regard to the City – and this Court granted Plaintiffs’ motion to that effect – it is not true as to ArborPro. As noted above, this Court set the motion for oral hearing on February 21, 2024. Despite Plaintiffs setting the motion for submission on February 7, 2024, February 21, 2024 became the submission date when this Court set the motion for oral hearing on that date. This Court’s order made any opposition
due eight days before that date, which was February 13, 2024. E.D. La. Loc. R. 7.5. ArborPro timely filed its opposition with its responses on February 9, 2024. This argument 1 lacks merit. Second, Plaintiffs contend that simply because ArborPro produced “something,” its responses did not render their motion moot. Yes, they did. Plaintiffs’ motion was a simple motion to compel. Once ArborPro responded, the motion to compel had no further purpose. If a party is not satisfied with the production that it has received in response to a motion to compel, then that party must file the appropriate motion to challenge the sufficiency of the responses or a similar motion to that effect. This Court will not entertain a full motion to compel when some, if DnEoNt aIEllD, of the issues have been rendered moot by an IinI.i tial pArrobdourcPtiroon’.s RReecsopnosnidseersation is .
In the second part of their motion, Plaintiffs challenge certain deficiencies with regard to ArborPro’s and the City’s initial responses. Had motion practice proceeded properly, this is the substance of the motion that Plaintiffs should have filed after the Court dismissed their initial motion to compel as moot as it related to ArborPro. In this section of the motion, Plaintiffs maintain that ArborPro and the City have failed to provide certain documents. To clarify the Court’s following ruling on the proportionality of Plaintiffs’ discovery requests, some background is necessary. This matter arises as a result of tragic and critical
injuries sustained by a child when a large limb broke away from an oak tree (the “subject tree”) and fell, crushing him. On July 7, 2023, Plaintiffs and their two children, a Texas Schexnaydre v. Entergy Operations, Inc. 1 , CiIvd.. A. No. 13-279, 2016 WL 541439, at *2 (E.D. La. Feb. 11, 2016), family visiting New Orleans, were sitting on a bench under an oak tree in Jackson Square when the tree limb fell, striking the child, G.C. (Rec. doc. 2-1 at 1-2, 10). G.C. remains hospitalized in a coma and his future is uncertain. (Rec. doc. 11-1 at 3). Plaintiffs brought
this suit individually and as natural tutors of G.C., alleging that Defendants ArborPro, the City, and others are liable for G.C.’s injuries, as well as Plaintiffs’ emotional distress and loss of consortium. (Rec. doc. 2-1 at 11-12). Having reviewed Plaintiffs’ current motion and the oppositions from both ArborPro and the City – in which both Defendants agree to continue to work to supplement and satisfy any deficiencies noted in Plaintiffs’ current motion – the Court rules as follows. To the extent that the information and/or documents are in the possession, custody, or control of A•r borPro and/or the City, they shall produce:
The Tree Inventory Report. If a summary of the report is the only document that • exists, ArborPro or the City shall affirmatively state so. • All documents related to the inspection and observation of the subject tree. • All materials referenced during the tree inspections in Jackson Square. The identity of all tree inspectors who inspected trees in Jackson Square. This includes the inspectors’ roles at ArborPro and/or the City, the dates that they inspected the subject tree, their qualifications, their training, their reporting to
ArborPro and the City on the trees in Jackson Square, and any documents from an • inspector related to the subject tree. Any documents used by ArborPro to instruct its inspectors regarding the • inspections conducted as part of its tree inventory of New Orleans. • Any email to, from, or copying any person affiliated with the Department of Parks and Parkways that includes the terms listed on page 14 of Plaintiffs’ motion. (Rec. doc. 54-2 at 14).
In addition, the City shall provide ArborPro with the consent that it needs to produce all responsive documents to Plaintiffs. As noted above, both ArborPro and the City have agreed to supplement their discovery responses and to work with Plaintiffs to satisfy their discovery obligations. General objections will not satisfy such obligations. Any responses to interrogatories shall be verified pursuant to the Federal Rules of Civil Procedure. Should ArborPro or the City withhold any document on the ground of privilege, it shall produce a dfeotuairlteede pnr (iv1i4le)g de aloygs sfrimomul ttahnee douastely o wf tithhi si tOs rpdreorduction. ArborPro and the City shall have
III. Conclusion to comply with these obligations.
FITo rI Sth OeR foDrEeRgoEiDng reasons, that the Motion to Reset hearing and Reconsider Order on Plaintiffs’ First Motion to Compel DiscoveGryR ARNesTpEoDn sIeNs PfrAoRmT DefenDdEaNnItEs DA rIbNo PrPArRoT, Inc., and the City of New Orleans (rec. doc. 54) is 3rd and April . New Orleans, Louisiana, this day of , 2024.
MICHAEL B. NORTH UNIT ED ST ATES M AGIST RATE JUDGE