*1 Before the Court is Defendant's Motion to Compel Discovery Responses and Responsive Documents (Doc. 23), wherein AmGUARD Insurance Company (“AmGUARD”) moves the Court to order Plaintiff Bhrahmani 1 LLC d/b/a MORE 4 LE$$ #2, to respond to AmGUARD's discovery request and to produce its witnesses for in-person depositions. Plaintiff opposes the motion. Docs. 29, 31. AmGUARD has replied. Doc. 32.

This diversity action arises from insurance coverage dispute that stems from damages caused by Hurricane Laura to Plaintiff's property located at 1310 N Martin Luther King Hwy., Lake Charles, Louisiana 70601-2051 (“Property”) on August 27, 2020. Doc. 1., p. 2. AmGUARD provided a policy of insurance, number BHBP088505 (“Policy”), to Plaintiff, which covered the Property against perils including hurricanes and provided the following coverages: $2,500 for awnings coverage; $946,400 for building coverage; $230,000 for business personal property coverage; $10,000 for debris removal; $10,000 for ordinance and law. Id. Plaintiff reported the loss to AmGUARD, who assigned it claim number BHBP088505-001-001-001. Id. On September 8, 2020, AmGUARD retained Engle Martin & Associates, who inspected the Property. Id. at 3; doc. 14, p. 5. On November 11, 2020, Plaintiff retained Complete Adjusting Services, LLC (“CAS”), which inspected the Property. Doc. 1., p. 3. On November 20, 2020, Plaintiff sent a demand letter to AmGUARD to release unconditional tenders. Id. at 4; doc. 14, p. 6. On August 8, 2021, Plaintiff filed suit in this Court alleging claims for damages under breach of insurance contract, bad faith claims adjusting, and other bad acts, including penalties, under Louisiana Revised Statutes sections 22:1892 and 22:1973. Doc. 1., p 6–7. The motion to compel, Daubert motion, and motions in limine deadline is April 24, 2023. Doc. 16, p. 2. Trial is set for May 22, 2023, at 9 a.m. Id.

Federal Rule of Civil Procedure 26(b) defines the scope of discovery as follows:

Fed. R. Civ. P. 26(b)(1). Rule 37(a) governs motions to compel discovery responses and provides, as applies here, that a party may move to compel a discovery response if the opposing party fails to answer an interrogatory submitted under Rule 33 or fails to produce a document requested under Rule 34. Id. at 37(a)(3)(iii)–(iv). For purposes of this rule, “an evasive or incomplete disclosure, answer, or response must be treated as a failure to respond.” Id. at 37(a)(4). If the motion is granted or if the requested discovery is only provided after the motion is filed, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Id. at 37(a)(5)(A).

*2 On March 1, 2023, the parties conducted a Rule 37 Conference by phone and, nevertheless, cannot resolve discovery issues relating to this Motion. AmGUARD thus moves the Court to order Plaintiff to comply with its various requests. The Court addresses each in turn.

Here, AmGUARD requests the Court to compel Plaintiff to supplement its interrogatory response to identify pre-Hurricane Laura repairs, (Interrogatory No. 10) and its production to include documents evidencing pre-Hurricane Laura repairs, (Request for Production No. 9); and the condition of Plaintiff's property before Hurricane Laura, (Request for Production No. 8). Doc. 23-2, pp. 14–15.

Plaintiff responds to AmGUARD's argument by critiquing AmGUARD's Memorandum in Support as broadly disorganized and unclear, e.g., carping about the Table of Contents and certain Headings. Doc. 29, pp. 13–14. Further, Plaintiff contends that it has complied with every request made by Defendant in the time allowable by law and has provided all the documentation known to and available to the Plaintiff at the time the responses were made. Id. at 14–15. AmGUARD's Memorandum in Support states:

Doc. 23-2, p. 17. AmGUARD then alleges that subpoenaed documents and aerial imagery reveal multiple pre-storm repairs between 2015 and 2020 as well as Plaintiff's tax returns reported repairs or improvements to the property each year between 2015 and 2020. Id. at 17–18. The Court finds AmGUARD's request straightforward and that Plaintiff's arguments criticizing the structure of AmGUARD's Memorandum in Support's are futile; that is, a waste of the Court's time. Accordingly, this portion of the Motion to Compel is GRANTED, and Plaintiff is ORDERED to check all sources and to supplement its response to Interrogatory No. 10 within 7 days of this order.

AmGUARD's Memorandum in Support states:

Id. at 16–17. Plaintiff maintains the same objections, supra Part II.B.1.a. Thus, this portion of the Motion to Compel is GRANTED. Plaintiff is ORDERED to check all sources and to produce, within 7 days of this order, any and all documents evidencing any mitigation, repair, and/or reconstruction work performed on the Property before Hurricane Laura, including but not limited to any reports, estimates, receipts, and/or invoices.

*3 AmGUARD's Memorandum in Support states:

Doc. 23-2, pp. 14–15. Plaintiff asserts that there is nothing particular to Request for Production in its possession, or that it has already been produced. Therefore, this portion of the Motion to Compel is DENIED.

Here, AmGUARD moves the Court to compel Plaintiff to supplement its production to include email, text messages, and other communications sent or received by Dharmishthaben Patel, Pravin Patel, Andy Patel, and any other person on behalf of Plaintiff that relate or refer to any damage to or mitigation, repair and/or reconstruction of the property resulting from Hurricane Laura (Request for Production No. 42), including those communications with Plaintiff's roofer JVS Unlimited Construction LLC and its public adjuster Complete Adjusting Services, LLC, (Requests for Production Nos. 22, 34). Doc. 23-2, p. 19. Plaintiff contends that these requests are overbroad while AmGUARD alleges that Plaintiff's responses are boilerplate. Plaintiff's responses state:

Doc. 23-2, p. 21; doc. 29, p. 29. Moreover, Plaintiff claims that it has provided everything in response to Request for Production No. 22. AmGUARD, however, claims that it has obtained specific communications from Plaintiff's witnesses through subpoenas, and they specifically refute some of Plaintiff's very allegations in this case, and, therefore, Requests for Production 22, 34, and 42 are relevant and discoverable. Doc. 23-2, p. 19. The Court will GRANT AmGUARD's Motion as to Request for Production No. 34 and 42 as it has indicated the information sought is relevant and discoverable. Thus, Plaintiff is ORDERED to check all sources and produce, within 7 days of this order any email, text messages, and/or other communications sent or received by Dharmishthaben Patel, Pravin Patel, Andy Patel, and any other person on behalf of Plaintiff that relate or refer to any damage to or mitigation, repair and/or reconstruction of the property resulting from Hurricane Laura. On the other hand, AmGUARD's Motion as to Request for Production No. 22 is DENIED because Plaintiff asserts that it has either turned that information over or it is not available.

Here, AmGUARD moves the Court to order Plaintiff to supplement its production to include documents that evidence post-Hurricane Laura repairs, including final invoices, proof of payment, and photographs of completed work, (Requests for Production Nos. 5 and 11) and its interrogatory response to identify the amounts Plaintiff alleges were lost in business income as a result of Hurricane Laura, (Interrogatory No. 25). Doc. 23-2, p. 22–25. Plaintiff maintains that it has produced all relevant materials regarding Business Income Losses, and AmGUARD has enough information to calculate losses with these materials. Doc. 29, p. 25.

Doc. 23-2, p. 24; doc. 23-14, p. 12; doc. 23-7, p. 19. AmGUARD argues that Nos. 5 and 11 request discoverable information that go to the core of Plaintiff's claim and, because Plaintiff is withholding final invoices, proof of payment, and photographs of completed work, Plaintiff's disclosures remain incomplete. Plaintiff does not specifically respond to the substance of AmGUARD's claims in its Memorandum in Opposition. Doc. 23-2, pp. 23-24. Thus, the Court GRANTS this part of the Motion and ORDERS Plaintiff to double check all sources and produce, within 7 days of this order, any documents that evidence post-Hurricane Laura repairs, including final invoices, proof of payment, and photographs of completed work.

Interrogatory No. 25 asks Plaintiff to “[i]dentify—by providing a detailed, itemized list—of all alleged amounts you claim were lost in business income as a result of Hurricane Laura, and the reason(s) such losses were caused by Hurricane Laura.” Doc. 23-2, p. 22. Plaintiff argues that Defendant has sufficient information to calculate Plaintiff's losses using the daily sales documents provided from July, August, and September of 2020, where the undisputed closure dates of the convenience store were August 26, 2020, through September 17, 2020. Doc. 29, p. 28. AmGUARD responds that “Daily Sales” are insufficient to determine alleged lost business income. Doc. 23-2, p. 22. Business income and sales are different. Sales, or revenues, is income from any and all sources, i.e., gross income or gross receipts. Black's Law Dictionary 1577 (11th ed. 2019). Business income is any income realized as a result of commercial activity. Id. at 913. Operating income is income from the normal operations or activities of a business and is computed by subtracting operating costs from revenues. Id. Plaintiff's argument here is that it should recover lost revenues due to closure while at the same time since it had no costs relative to those missed revenues, the insurer should be compelled to bestow on it a windfall profit. The Court GRANTS this portion of the Motion and ORDERS Plaintiff to supplement its response to Interrogatory No. 25.

Here, AmGUARD claims that Plaintiff asserted boilerplate objections to its Second Set of Requests for Production of Documents and Requests for Admissions. Doc. 23-2, 25–26. The Court agrees with Plaintiff that this part of the Motion is unclear and overbroad; consequently, it is DENEID.

Plaintiff informs the Court that the in-person depositions have been scheduled. Thus, this part of the Motion is DENIED as MOOT.

For the aforesaid reasons,

IT IS ORDERED that Defendant's Motion to Compel Discovery Responses and Responsive Documents (Doc. 23) be GRANTED IN PART and DENIED IN PART.

*6 IT IS FURTHER ORDERED that requests for attorney's fees and costs are DENIED.

THUS DONE AND SIGNED in Chambers on this 30th day of March 2023.