# Belfor USA Group, Inc v. Democracy Prep Louisiana Charter School

> District Court, M.D. Louisiana · October 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10191589

## Case

- **Court:** District Court, M.D. Louisiana
- **Decided:** October 28, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

MIDDLE DISTRICT OF LOUISIANA

BELFOR USA GROUP, INC. CIVIL ACTION

VERSUS NO. 20-96-BAJ-RLB

DEMOCRACY PREP LOUISIANA
CHARTER SCHOOL, ET AL.

ORDER

Before the Court is Plaintiff’s Motion to Compel. (R. Doc. 52). The motion is opposed.
(R. Docs. 54, 56). Plaintiff filed a reply. (R. Doc. 60).
Also before the Court is the East Baton Rouge Parish School Board’s (“EBR School
Board”) Motion for Stay of Discovery. (R. Doc. 55). The motion is opposed. (R. Doc. 62).
Also before the Court is Democracy Prep of Louisiana Charter School’s (“Democracy
Prep”) Motion to Stay Discovery. (R. Doc. 57). The motion is opposed. (R. Doc. 63).
Also before the Court is a Joint Motion to Extend Discovery Deadlines (R. Doc. 64).
I. Background
On February 19, 2020, Belfor USA Group, Inc., d/b/a Belfor Property Restoration
(“Plaintiff” or “Belfor”) filed this action stemming from an alleged contract regarding
construction services provided at the Prescott Campus, a facility with multiple school-related
buildings located in East Baton Rouge Parish, following the August 2016 flood in the Baton
Rouge area. (R. Doc. 1). Belfor alleges that the State of Emergency issued by the Louisiana
Governor with respect to the flood dispensed with the legal requirements of advertising public
projects for bid and awarding them to the lowest bidder. (R. Doc. 37 at 4). Belfor alleges that the
Louisiana Department of Education Recovery School District (“RSD”) and Democracy Prep
were authorized to act as the EBR School Board’s agent concerning capital expenses at the
Prescott Campus, including emergency repairs required after the flood. (R. Doc. 37 at 4). Belfor
written and oral authorizations. (R. Doc. 37 at 5-13). Belfor further alleges that it submitted

invoices to be paid by Democracy Prep and/or the EBR School Board totaling $1,107,106.87, but
those invoices were not paid by either defendant. (R. Doc. 37 at 13-16). Belfor is seeking
recovery of damages for breach of contract, detrimental reliance, and unjust enrichment. (R. Doc.
37 at 16-22).
On July 20, 2020, the EBR School Board and Democracy Prep moved to dismiss Belfor’s
claims as alleged in the Second Amended and Restated Complaint. (R. Docs. 40, 41; see R. Doc.
8). These motions remain pending before the district judge. Among other things, the EBR
School Board argues that Belfor’s claim for unjust enrichment fails as a matter of law because
“the waiver of sovereign immunity set forth in Article X Section 12 of the Louisiana
Constitution of 1974 does not extend to quasi-contractual claims like that for quantum meruit

based upon work done outside the scope of an enforceable contract.” (R. Doc. 40 at 2).
On August 13, 2020, Belfor provided the defendants with draft unsigned copies of Rule
30(b)(6) depositions. (R. Doc. 52-2). The parties discussed the timing and scheduling of the
foregoing depositions at a discovery conference on August 25, 2020. (R. Doc. 52-1 at 2-3; R.
Doc. 54 at 1-2). The defendants informed Belfor that they would need time to review
electronically stored information (“ESI”) to be produced on September 4, 2020 to identify and
prepare witnesses for the depositions. (R. Doc. 54 at 1-2; see R. Doc. 52-6 at 1-2).
Belfor filed its Motion to Compel on September 1, 2020. (R. Doc. 52). According to
Belfor, in addition to the individual ESI to be produced on September 4, 2020, “[t]he parties

have largely exchanged discovery documents in this case, including the project file maintained
by CSRS (the School Board’s project manager), CSRS electronically stored information (ESI),
Belfor’s project files, as well as other written responses.” (R. Doc. 52-1 at 2). Belfor argues that
documents to identify and prepare witnesses. (R. Doc. 52-1 at 2-4). Belfor seeks an order

requiring each of the defendants “to designate one or more witnesses for the requested 30(b)(6)
depositions, and to coordinate with counsel for plaintiff regarding the availability of those
witnesses and defense counsel.” (R. Doc. 52-8).
In addition to asserting that it needs additional time to review documents to identify and
prepare witnesses, EBR School Board opposes Belfor’s Motion to Compel because Belfor did
not serve actual deposition notices in compliance with Rule 30(b)(1). (R. Doc. 54). The EBR
School Board seeks an award of reasonable expenses incurred in opposing the motion. (R. Doc.
54 at 7). In its own opposition, Democracy Prep adopts by reference the arguments and
authorities presented the EBR School Board’s opposition. (R. Doc. 56). In reply, Belfor submits
signed Rule 30(b)(6) deposition notices served on September 21, 2020, which set the depositions

to occur on October 6-7, 2020. (R. Doc. 60-1). Belfor argues that the service of these deposition
notices renders the defendants’ arguments moot and that there is no basis for imposing any
reasonable expenses in opposing the motion. (R. Doc. 60).
The EBR School Board and Democracy Prep both filed Motions to Stay Discovery. (R.
Docs. 55, 57). The EBR School Board seeks a stay of discovery on the basis that it raised in its
motion to dismiss the issue of sovereign immunity with respect to the unjust enrichment claim.
(R. Doc. 55). The EBR School Board concedes, however, that Belfor’s contract claims fall
within Louisiana’s waiver of its sovereign immunity. (R. Doc. 55-1 at 3). Democracy Prep more
generally seeks a stay of discovery because “(1) Democracy Prep will incur undue hardship and

inequity if discovery continues prior to the Court’s ruling on its motion to dismiss; (2) the stay of
discovery will not prejudice the Plaintiff as substantial discovery has already been exchanged by
the parties; and (3) it is most convenient for the Court to stay further discovery until it is clear the
proceed with the Rule 30(b)(6) depositions since each defendant argues that the other defendant

was responsible for payment, the motions do not otherwise establish good cause for a stay of
discovery, and the depositions must occur prior to its approaching expert report deadline. (R.
Docs. 62, 63). With respect to the EBR School Board’s arguments, Belfor notes that the
sovereign immunity defense, even if merited, would not resolve the litigation with respect to the
breach of contract claim. (R. Doc. 62 at 3-4).
II. Law and Analysis
A. Plaintiff’s Motion to Compel
Belfor’s Motion to Compel seeks an order requiring the EBR School Board and
Democracy Prep to designate representatives and dates for Rule 30(b)(6) depositions. (R. Doc.
52).

Rule 30(b)(6) governs deposition notices directed to organizations. In the deposition
notice, the party “must describe with reasonable particularity the matters for examination.” Fed.
R. Civ. P. 30(b)(6). In response, the organization must designate an agent or other person to
testify on its behalf “about information known or reasonably available to the organization.” Id.
“The duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally
known to that designee or to matters in which that designee was personally involved. The
deponent must prepare the designee to the extent matters are reasonably available, whether from
documents, past employees, or other sources.” Brazos River Auth. v. GE Ionics, Inc., 469 F.3d
416, 433 (5th Cir. 2006). The court may limit a Rule 30(b)(6) deposition notice to the extent it

requests the organization to designate an agent to testify on topics of information that are overly
broad, vague, or ambiguous. See, e.g., Scioneaux v. Elevating Boats, LLC, No. 10-0133, 2010
WL 4366417, at *3 (E.D. La. Oct. 20, 2010) (quashing deposition notice where the plaintiff
Canal Breaches Consolidates Litigation, No. 05-4182, 2008 WL 4833023 (E.D. La. July 2,

2008) (granting motion for protective order to the extent topics listed in a 30(b)(6) notice were
overly broad, vague and ambiguous); Padana Assicurazioni–Societa Azioni v. M/V Caribbean
Exp., No. 97-3855, 1999 WL 30966 (E.D. La. Jan. 21, 1999) (denying motion to compel Rule
30(b)(6) deposition where the notice was insufficiently particularized).
The draft Rule 30(b)(6) deposition notices provided to the defendants prior to the filing of
the instant Motion to Compel do not meet the basic requirements of Rule 30(b)(1) by setting a
time for the deposition. The Court will not order the defendants to attend and/or provide dates of
availability for depositions in the absence of properly issued deposition notices as detailed by
Rule 30(b)(1). See Byrd v. Castlepoint Fla. Ins. Co., No. 15-634, 2016 WL 1559584, at *2 (M.D.
La. Apr. 18, 2016) (collecting cases).

After the filing of the instant motion, Belfor signed and served Rule 30(b)(6) deposition
notices on the defendants setting the depositions on October 6-7, 2020. (R. Doc. 60-1). The
Court will not compel compliance with deposition notices served after the filing of a motion to
compel. The parties must confer in good faith as required by Rule 37 and Rule 26 prior to the
filing of any motions regarding these deposition notices.
While the Court will deny the instant motion to compel in its entirety, the Court must not
award an award of reasonable expenses if the motion was substantially justified or other
circumstances make an award of expenses unjust. See Fed. R. Civ. P. 37(a)(5)(B). In addition to
seeking an order compelling the defendants to designate corporate representatives and to

coordinate deposition dates, Belfor is effectively seeking an order allowing the Rule 30(b)(6)
depositions to occur prior to the defendants’ review of all documents produced in this action.
This request, though obliquely presented, seeks a court order with respect to the sequence of
or the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of

justice: (A) methods of discovery may be used in any sequence; and (B) discovery by one party
does not require any other party to delay its discovery.”). Accordingly, the Court will not order
recovery of expenses.
B. Defendants’ Motions to Stay Discovery
Defendants’ Motions to Stay Discovery seek orders staying discovery under resolution of
their pending motions to dismiss. (R. Doc. 55, 57).
Rule 26(c) of the Federal Rules of Civil Procedure allows the court to issue a protective
order after a showing of good cause “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). Rule 26(c)’s
“good cause” requirement indicates that the party seeking a protective order has the burden “to

show the necessity of its issuance, which contemplates a particular and specific demonstration of
fact as distinguished from stereotyped and conclusory statements.” In re Terra Int'l, Inc., 134
F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th
Cir. 1978)).
“Trial courts possess broad discretion to supervise discovery.” Landry v. Air Line Pilots
Ass’n Int’l AFL-CIO, 901 F.2d 404, 436 n.114 (5th Cir. 1990) (citation omitted). “A trial court
has broad discretion and inherent power to stay discovery until preliminary questions that may
dispose of the case are determined.” Petrus v. Bowen, 833 F.2d 581, 583 (5th Cir. 1987). Courts
also consider “(1) hardship and inequity on the moving party without a stay; (2) prejudice the

non-moving party will suffer if a stay is granted; and (3) judicial economy.” See Strong ex rel.
Tidewater, Inc. v. Taylor, No. 11-392, 2013 WL 818893, at * 2 (E.D. La. Mar. 5, 2013).
issue a blanket stay of discovery in light of the pending motions to dismiss. The defendants do

not provide any particular and specific facts demonstrating that continuing discovery in this
action while their motions to dismiss are pending would result in annoyance, embarrassment,
oppression, or undue burden or expense. It appears that written discovery has been largely
conducted in this action. The instant motions to stay were filed in response to Belfor’s motion to
compel Rule 30(b)(6) depositions. The record indicates that the defendants did not originally
object to the Rule 30(b)(6) depositions moving forward so long as they had sufficient time to
review written discovery to identify and prepare corporate representatives. (R. Doc. 54 at 1-2).
The defendants have obtained the time sought in light of the instant discovery dispute. Allowing
the depositions to move forward will not result in any particular hardship or inequity to the
defendants.

The defendants provide no explanation why they did not seek a stay of discovery when
seeking to dismiss the original complaint (R. Docs. 8, 15) and otherwise agreed to the discovery
deadlines in the Court’s Scheduling Order. The defendants only sought a stay of discovery when
faced with the prospect of attending depositions. Having considered the record as a whole, the
Court’s general interests in control of its docket and the fair and speedy administration of justice,
as well as the current practice in this district, the Court concludes that the defendants have not
met their burden of establishing that a stay of discovery in this action is merited pending the
resolution of the pending motions to dismiss.
The Court will, however, issue a limited protective order staying discovery with respect

to Belfor’s unjust enrichment claim in light of the EBR School Board’s defense of sovereign
immunity. “It is well settled that governmental immunity is not only a defense against the
burdens of liability, but also a defense to the burdens of litigation.” Davis v. United States Army
Nov. 5, 2019) (quoting Rivera v. United States, No. 15-21, 2015 WL 13650012, at * 2 (W.D.

Tex. May 18, 2015) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A stay of
discovery may be merited where the defendant raises the defense of sovereign immunity, which
is a threshold issue that could be dispositive of the action. See Davis, 2019 WL 5777387, at *2.
Here, the EBR School Board argues that the alleged quasi-contractual claim of unjust enrichment
does not fall within the scope of Louisiana’s waiver of sovereign immunity in light of
Canal/Claiborne, Ltd. v. Stonehedge Dev., LLC, 156 So. 3d 627 (La. 2014). While the Court
makes no decision in this order with respect to whether the EBR School Board is entitled to
sovereign immunity on that claim, it finds it appropriate to stay any further discovery to the
extent it pertains solely1 to Belfor’s unjust enrichment claim brought against the EBR School
Board.

III. Conclusion
Based on the foregoing,
IT IS ORDERED that Plaintiff’s Motion to Compel (R. Doc. 52) is DENIED. The
parties shall bear their own costs.
IT IS FURTHER ORDERED that Democracy Prep of Louisiana Charter School’s
Motion to Stay Discovery (R. Doc. 57) is DENIED.
IT IS FURTHER ORDERED that the East Baton Rouge Parish School Board’s Motion
for Stay of Discovery (R. Doc. 55) is GRANTED IN PART and DENIED IN PART.
Discovery with respect to Belfor’s unjust enrichment claim brought against the EBR School

Board is STAYED until resolution of the East Baton Rouge Parish School Board’s Motion to
Dismiss (R. Doc. 40).

1 The Court anticipates that discovery falling within this category may be quite narrow.
Doc. 64) is GRANTED. The deadlines set forth in the Scheduling Order (R. Doc. 29) are

amended as follows:
Plaintiff’s submission of expert reports: January 15, 2021
Defendant’s submission of expert reports: February 17, 2021
Filing all discovery related motions and
completing all discovery except experts: March 1, 2021

Completing all expert discovery: March 8, 2021

Filing dispositive and Daubert motions: April 1, 2021

All other pretrial and trial deadlines remain as scheduled.

Signed in Baton Rouge, Louisiana, on October 28, 2020.
S
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10191589. Public record. Not legal advice.