Higgins et al v. NMI Enterprises,Inc. et al

Filing 110

ORDER & REASONS re plas Dale Higgins, Roger Smith, Melanie Wallace and Wright Avenue, L.L.C.'s 100 Motion for New Trial re claims dismissed against dft Laurie Felton, plas' 85 Motion for New Trial re claims dismissed against dfts Nitzan Mendelbaum and DROR International and pla Melanie Wallace, dft Tracy W. Begnaud's 83 Motion for Summary Judgment - Wiretap Act, 84 Motion for Summary Judgment - Computer Fraud and Abuse Act and 88 Motion to Dismiss Party: for the reasons stated, IT IS HEREBY ORDERED that Plaintiffs' 100 Motion for New Trial is GRANTED, in so far as this Court will reconsider the dismissal of Felton based on prescription and the expiration of the statute of limitations periods, after the partie s have had an opportunity to respond to this order; IT IS FURTHER ORDERED that Plaintiffs' response regarding the facts and legal issues implicated by the Citizen's Complaint is due by the end of the day on July 24, 2013; IT IS FURTHER ORDE RED that all defendants' responses are due by the end of the day on August 7, 2013; IT IS FURTHER ORDERED that all other pending motions are DENIED WITHOUT PREJUDICE and the parties are granted leave to refile these motions, if necessary, after the Court has issued a ruling on the issues concerning the Citizen's Complaint. Signed by Judge Nannette Jolivette Brown on 6/25/2013. (rll, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DALE HIGGINS, et al.

CIVIL ACTION

VERSUS

NO. 09-6594

NMI ENTERPRISES, INC, et al.

SECTION: “G”(4)

ORDER AND REASONS
Before the Court is Plaintiffs Dale Higgins, Roger Smith, Melanie Wallace, and Wright
Avenue, L.L.C.’s (collectively “Plaintiffs”) Motion for New Trial,1 wherein they request that this
Court amend its prior order dismissing the claims against Defendant Laurie Felton ("Felton") on the
grounds of prescription and expiration of the statute of limitations periods.2 Also before the Court
is another Motion for New Trial3 submitted by Plaintiffs, wherein they request that this Court amend
its prior order dismissing the claims against Defendants Nitzan Mendelbaum ("Mendelbaum") and
DROR International, L.P. ("DROR") on the grounds of res judicata, and also dismissing the claims
of Plaintiff Melanie Wallace ("Wallace") for failure to meet her pleading requirement and provide
a plain statement demonstrating her entitlement to relief.4 In addition, pending before this Court are
Defendant Tracy W. Begnaud's ("Begnaud") Motion for Summary Judgment - Wiretap Act,5 Motion
for Summary Judgment - Computer Fraud and Abuse Act,6 and Motion to Dismiss Party,7 wherein
1

Rec. Doc. 100.

2

See Rec. Doc. 86.

3

Rec. Doc. 85.

4

See Rec. Doc. 80.

5

Rec. Doc. 83.

6

Rec. Doc. 84.

7

Rec. Doc. 88.

Begnaud also seeks her dismissal from this action based on the Court's Order and Reasons
dismissing the claims against Laurie Felton on the grounds of prescription and expiration of the
statute of limitations periods.
In the Court's prior Order and Reasons ruling on Laurie Felton's Motion to Dismiss, the
Court rejected her arguments regarding res judicata, collateral estoppel, and lack of service, but
found merit in her arguments relating to prescription and expiration of the statute of limitation
periods.8 Central to Felton's arguments and the Court's analysis regarding when Plaintiffs had
knowledge of their potential claims, was a Citizen's Complaint filed by Plaintiff Roger Smith with
the Louisiana Office of the Attorney General.9 While Plaintiffs did not dispute that Roger Smith
submitted the Citizens Complaint, or object to its consideration upon a motion to dismiss, upon
reviewing the record, the Court is concerned that Felton's motion to dismiss may not be the proper
procedural mechanism for this Court to address the implications of the undisputed Citizen's
Complaint, as it is a matter outside of the pleadings.10 Therefore, the Court will reconsider its order
on this issue.
Pursuant to Federal Rule of Civil Procedure 56(f)(3), a Court may grant summary judgment
independent of a motion after identifying for the parties material facts that may not be genuinely in
dispute, so long as the Court gives notice and a reasonable time to respond. While the Citizen's
Complaint is a matter outside of the pleadings, in Plaintiffs' opposition to Felton's motion to dismiss

8

Rec. Doc. 86.

9

See id. at pp. 15-22.

10

See Fee v. Herndon, 900 F.2d 804, 807 (5th Cir. 1990) ("[Upon a motion to dismiss] [w]e may not go outside
the pleadings."); see also Partridge v. Two Unknown Police Officers of City of Houston, Tex., 791 F.2d 1182, 1185 (5th
Cir. 1986) ("The district court styled its action as a dismissal under Fed.R.Civ.P. 12(b)(6). In reviewing such a dismissal,
we may not go outside the pleadings.").

2

and in Plaintiffs' own motion to reconsider the Court's order dismissing the claims against Felton,
Plaintiffs did not appear to dispute the existence of the Citizen's Complaint, the date it was
submitted, or its contents.11 Therefore, this Court believes that it has identified "material facts that
may not be genuinely in dispute" with regard to the Citizen's Complaint, which may bear on the
issues of prescription of Plaintiffs' state law claims and the statute of limitations periods for
Plaintiffs' federal claims; accordingly, the Court hereby provides the parties notice and a reasonable
time to respond to this issue before it renders judgment.12
Additionally, the issues and possible defenses raised by Felton regarding the Citizen's
Complaint are relevant for all defendants in this matter. Therefore, the Court finds that it would be
in the interest of judicial economy and most efficient to address this issue first. Moreover, if Felton's
allegations made relative to the Citizen's Complaint are not in dispute and she is entitled to summary
judgment in her favor, Plaintiffs' motion to reconsider this Court's dismissal of all claims against
Defendants Mendelbaum and DROR, and dismissal of all of Plaintiff Wallace's claims for failure
to demonstrate her entitlement to relief with a short plain statement, would be moot. The Court will
address this issues if necessary after it resolves the issues surrounding the Citizen's Complaint.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs' Motion for New Trial13 is GRANTED, in so
far as this Court will reconsider the dismissal of Felton based on prescription and the expiration of
the statute of limitations periods, after the parties have had an opportunity to respond to this order;

11

See Rec. Doc. 73 at pp. 16-17; Rec. Doc. 100-1.

12

See Fed. R. Civ. P. 56(f)(3).

13

Rec. Doc. 100.

3

IT IS FURTHER ORDERED that Plaintiffs' response regarding the facts and legal issues
implicated by the Citizen's Complaint is due by the end of the day on July 24, 2013;
IT IS FURTHER ORDERED that all defendants' responses are due by the end of the day
on August 7, 2013;
IT IS FURTHER ORDERED that all other pending motions14 are DENIED WITHOUT
PREJUDICE and the parties are granted leave to refile these motions, if necessary, after the Court
has issued a ruling on the issues concerning the Citizen's Complaint.
NEW ORLEANS, LOUISIANA, this ____ day of June, 2013.
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

14

Rec. Doc. Nos. 83, 84, 85, 88.

4