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Hilbill Properties, LLC v. Jacobsen Companies

United States District Court, E.D. Missouri, Eastern Division

September 10, 2014

HILBILL PROPERTIES, LLC, Plaintiff,
v.
JACOBSEN COMPANIES, Defendant.

MEMORANDUM AND ORDER

E. RICHARD WEBBER, Senior District Judge.

This matter comes before the Court on "Plaintiff's Motion to Compel Responses to its First Request for Production of Documents from Defendant" [ECF No. 38].

On or around July 1, 2000, Hilbill Properties, LLC ("Hilbill"), a Missouri Limited Liability Company, entered into three lease agreements (collectively, "Leases") for portions of its property located at 7140 North Broadway, St. Louis, MO 63147 ("Property"). The lessees of the Property were related companies Arthur Wells, Inc. ("AWI"); National Logistics, Inc. ("NLI"); and Warehouse Specialists, Inc. ("WSI") (collectively, "Original Lessees"). Each of the Original Lessees individually signed one of the Leases. The Leases had substantially the same terms, with the exception that rental amounts and the square footage covered under each lease differed. The Leases required Original Lessees to maintain and repair their respective portions of the Property, and to present the Property to Hilbill in a condition similar to its condition when the Leases began. The Leases also required the Original Lessees to pay, in addition to rent, operating expenses, real estate taxes, and utilities for the Property for each month of the lease.

Subsequently, Jacobson Logistics Company, LC ("Jacobson"), an Iowa Corporation, allegedly came to own or control each of the Original Lessees. It is unclear when exactly this took place, but from 2006, Jacobson had taken over at least some portion of the Property.

On or about August 31, 2012, Prestige Brands terminated its sublease with WSI, and vacated the Property after providing more than thirty days' notice, consequently triggering termination of the Leases. After earlier attempts at communication apparently failed, Hilbill demanded, but did not receive, payment of the rent, operating expenses, real estate taxes, and utilities for the month of September, 2012, from Jacobson [ECF No. 2-6]. In its communication to Jacobson, Hilbill stated the Leases would terminate on September 30, 2012, based on the language of the second amendment to Leases, which provided the leases would end thirty (30) days after "Prestige Brands vacate[d] its space prior to the end of its contract." Jacobson, in its reply to Hilbill's demand letter, stated that it considered the Leases to be terminated as of August 31, 2012, as the Leases were month-to-month because they had not actually been renewed in several years, and Jacobson had notified Hilbill thirty days in advance that it would be vacating the Property on August 31, 2012.

Hilbill also requested to meet with an authorized Jacobson representative for an inspection of the property to determine what repairs would be required, and formally demanded a list of contractors Jacobson had already engaged to make repairs to the Property. Jacobson replied that it had made a number of repairs to the Property and was in the process of completing others, that it had been in contact with Hilbill regarding the repairs to be made, and that it considered these actions to fulfill its obligations under the Leases. Although it is unclear exactly how events unfolded from this point, Jacobson, to date, has not paid Hilbill the rent and other expenses for the month of September 2012. Hilbill ultimately paid for several repairs to the Property, totaling approximately $120, 000, and has not received compensation for these repairs from Jacobson.

On July 31, 2013, Hilbill filed suit against Jacobsen for breach of lease, requesting an award of rent and other expenses for the month of September, 2012, as well as an award for the cost of repairs which Hilbill made to the Property. On August 23, 2013, Jacobson removed the matter to federal court, based on diversity jurisdiction. The current Case Management Order ("CMO") required the parties to disclose information and exchange documents, pursuant to Federal Rule of Civil Procedure 26(a)(1), no later than March 10, 2014 [ECF No. 29]. The CMO further states discovery shall be completed no later than October 20, 2014.

On May 20, 2014, Hilbill made its First Request for Production of Documents Directed to Defendant [ECF No. 38 at 4-12]. Among other things, Hilbill requested every document relied on by Jacobsen in answering Plaintiff's First Set of Interrogatories; every written communication by or between Jacobsen and Hilbill concerning the three leases and their amendments; every document relating to or constituting evidence of the "millions of dollars in repairs" Jacobsen claimed it made to the Property, in a letter dated September 20, 2012; every document relating to or constituting evidence of "repairs" Jacobsen claimed it made, in a letter dated September 28, 2012; documents concerning repairs for various fixtures, systems, equipment, and structures; documents Jacobsen believes support its contention that Jacobsen is not the successor in interest to the Original Lessees; documents Jacobsen believes support its Second and Third Affirmative Defenses to Hilbill's First Amended Complaint; documents relating to the allocations of costs, expense, and taxes in accordance with the Leases; and every document by or between Hilbill and the Original Lessees, regarding the Property or Leases.

Jacobsen responded with Defendant's Objections to Plaintiff's First Request for Production of Documents on June 23, 2014 [ECF No. 38 at 17-22]. Jacobsen objected to every request on the basis of relevance and overbreadth. Jacobsen further objected that, as to some of the requests, the terms "Lease" and "Property" were not defined, or the request was not limited in time.

In its "Motion to Compel Responses to its First Request for Production of Documents from Defendant, " Hilbill states it has attempted to address Jacobsen's failure to respond, and to coordinate mediation in accordance with the Court's CMO. Hilbill reports making numerous efforts, via email, regular mail, telephone calls, and voice mail messages, in attempt to confer with Jacobsen regarding discovery and mediation, but receiving no response to these communications from Jacobsen [ECF No. 38]. In support of its Motion to Compel, Hilbill submits copies of various communications it sent to Jacobsen in efforts to address Jacobsen's lack of response to its production requests, and to coordinate mediation. Hilbill contends Jacobsen has made no effort to find responsive documents, and has not invited Hilbill to search Jacobsen documents at Jacobsen's place of business, to identify documents that would be responsive to Hilbill's requests.

Hilbill asserts its production requests are narrowly tailored and targeted to the documents relevant to the specific claims and defenses asserted by Jacobsen [ECF No. 39]. Hilbill argues these documents are related to Jacobsen's positions and defenses, and says Jacobsen has refused to produce a single document, even though the documents called for are clearly relevant and discoverable. Hilbill asks the Court to compel Jacobsen to respond without objection, and to award Hilbill the costs and fees incurred in attempting to secure Jacobsen's productions.

In its Response, Jacobsen claims Hilbill's requests seek to impose on Jacobsen an enormous burden to search for large quantities of irrelevant documents [ECF No. 40]. Jacobsen claims Hilbill did not serve it with any interrogatories, and Jacobsen contends what repairs it made during the term of the lease is irrelevant to the matter at hand. According to Jacobsen, the only relevant repairs are those identified in the Repair Exhibits. Jacobsen argues documents related to repairs discussed in letters it sent to Hilbill's attorney are irrelevant, as those repairs are not in the Repair Exhibits. Jacobsen, however, withdraws its objections regarding the requests, contained in paragraphs 8 through 10, for documents concerning its status as "successor in interest" to the Original Lessees; and regarding documents supporting its Second and Third Affirmative Defenses to Plaintiff's First Amended Complaint.

Hilbill has filed a Reply [ECF No. 41], arguing the requested documents are relevant, because they speak to Jacobsen's affirmative defense in which it claims it is not a successor in interest to the Original Lessees. Hilbill contends Jacobsen, by stating it has reams of documents regarding the matter, has placed the successor-of-interest matter in issue, and Hilbill argues that no documents would exist for discovery, unless Jacobsen is the successor of interest. Hilbill states it is entitled to the requested documents, to demonstrate the veracity of its allegations against Jacobsen and the absence of Jacobsen's defenses, and to show the Jacobsen's defenses are not well-founded.

On September 9, 2014, the Court conducted a hearing on Hilbill's Motion to Compel [ECF No. 43]. During the proceedings, Hilbill conceded that the document request contained in paragraph 1 of "Plaintiff's First Request for Production of Documents" is moot, as Hilbill has not served Jacobsen with the referenced interrogatories. Hilbill contends, however, it is entitled to production of the documents it has requested in paragraphs 2 through 4, due to Jacobsen's litigation position that it is not a successor-in-interest to the terms of two (hereinafter referred to as "Lease 1" with AWI, and "Lease 3" with WSI) of the three Leases between Hilbill and the Original Lessees. Hilbill argues it is entitled to any relevant evidence that would lead to discovery of admissible evidence. Hilbill further contends its document requests contained in paragraphs 5 through 7 are targeted specifically to statements made by Jacobsen's legal counsel in the September 2012 letters. As to its eleventh production request (due to a typographical error, mislabeled as a second paragraph "10"), Hilbill argues it is entitled to internal documents and communications showing how Jacobsen allocated expenses regarding the Property, because such information supports Hilbill's Complaint ...


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