Bradford v. Gauthier, Houghtaling & Williams, LLP et al

Filing 33

ORDERED that 25 Motion for Leave to File Second Amended Complaint is GRANTED IN PART and DENIED IN PART as stated herein. FURTHER ORDERED that Plaintiff has no later than fifteen days from the issuance of this Order to file its proposed amended complaint into the record, so as to comply with the findings of this Order. Signed by Magistrate Judge Karen Wells Roby on 12/3/2013. (clm, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NARISSA DAWN BRADFORD

CIVIL ACTION

VERSUS

NO:

THE LAW FIRM OF GAUTHIER, HOUGHTALING &
WILLIAMS, LLP, ET AL.
ORDER

SECTION: "H" (4)

13-2407

Before the Court is Plaintiff’s Motion for Leave to File Second Amended Complaint (R.
Doc. 25), seeking leave of court to file a second amended complaint due to the alleged “significant
factual and procedural developments that have occurred since the [filing of her first amended]
complaint” on July 29, 2013. See R. Doc. 25, p. 1. The motion is unopposed. The underlying motion
was heard on the briefs on November 13, 2013.
I.

Background
Plaintiff, Narissa Dawn Bradford (“Bradford”), a resident of Mississippi, filed this action on

April 22, 2013, pursuant to 28 U.S.C. §1332, against the Law Firm of Gauthier, Houghtaling &
Williams, LLP., James Williams, Esq., and Earl G. Perry, Esq. (collectively “Defendants”). See R.
Doc. 1. In her initial and first amended complaint, Bradford alleged that the Defendants breached their
fiduciary duties and violated Louisiana Rules of Professional Conduct. Id. She also alleged breach of
contract against Defendants, for which she allegedly suffered general damages in excess of

$30,000,000, punitive damages, and “all other general and equitable relief.” Id. at 7.1
This Court issued a Scheduling Order on June 25, 2013, providing that all amendments to
pleadings were to be filed no later than July 26, 2013. See R. Doc. 11, p. 2. However, on July 30, 2013,
the presiding District Judge vacated all the previously ordered deadlines. See R. Doc. 16. As of yet,
no new deadlines have been set.
As to the instant motion, Bradford seeks leave of Court to file a second amended complaint on
the grounds that there has been significant procedural and factual developments that have occurred
since the filing of her first amended complaint, on July 26, 2013. See R. Doc. 25. Specifically Bradford
alleges that the “GHW Defendants Production of Documents” she received from Defendants on
August 21, 2013, indicate “(1)fraudulent acts (2) perjury (3) concealing of documents (4) scrambling
of documents and (5) non-fulfillment on behalf of the GHW Defendants.” Id. She now seeks to amend
her first amended complaint to add the above referenced claims.
II.

Standard of Review
Federal Rules of Civil Procedure (“Rule”) 15(a), which governs the amendment of pleadings,

provides that leave to amend pleadings “shall be freely given when justice so requires.” Rule
15(a)(2). This, and other federal rules, “reject the approach that pleading is a game of skill in which
one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of
pleading is to facilitate a proper decision on the merits.” Conley v. Gibson, 355 U.S. 41, 48
(1957). Thus, Rule 15(a) evinces a liberal amendment policy and a motion to amend should not be
denied absent a substantial reason to do so. See Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir.
1998). Furthermore, “this ‘policy’ is strongest when the motion challenged is the first motion to
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Bradford filed an amended complaint on July 29, 2013, which allege largely the same allegations as the
initial complaint, but includes a 76 page attachment of exhibits, as well as more specific factual allegations in each
of the numbered paragraphs. See R. Doc. 15.

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amend.” Thompson v. New York Life Ins. Co., 644 F.2d 439, 444 (5th Cir. 1981). Permission may be
granted even though the original pleading is defective in its statement of a claim for relief or defense.
Id.
Leave to amend is by no means automatic, but is within the sound discretion of the trial court.
Addington v. Farmer's Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir. 1981). In exercising its
discretion, the trial court must determine that there is a "substantial reason" for the delay. Mayeaux v.
Louisiana Health Service and Indemnity Co., 376 F.3d 420, 425 (5th Cir. 2004). The Court may
consider such factors as (1) undue delay, bad faith, or dilatory motive on the part of the movant; (2)
repeated failure to cure deficiencies by amendments previously allowed; (3) undue prejudice to the
opposing party by virtue of allowance of the amendment; and (4) futility of the amendment. Gregory
v Mitchell, 634 F.2d 199, 203 (5th Cir. 1981).
III.

Analysis
In determining whether or not granting leave to amend is proper, the Court analyzes the

Gregory v. Mitchell factors. The factors are: (1) undue delay, bad faith, or dilatory motive on the part
of the movant; (2) repeated failure to cure deficiencies by amendments previously allowed; (3) undue
prejudice to the opposing party by virtue of allowance of the amendment; and (4) futility of the
amendment. Id.
A.

Undue Delay, Bad Faith, Dilatory Motive of Movant

The first factor the court considers when determining whether or not to grant leave to amend
pursuant to 15(a) is whether the amendment will cause an undue delay, is in bad faith, or that the
movant has some dilatory motive in filing the motion.
The Fifth Circuit has indicated that “[a] litigant’s failure to assert a claim as soon as he could
have is properly a factor to be considered in deciding whether to grant leave to amend. Merely

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because a claim was not presented as promptly as possible, however, does not vest the district court
with authority to punish the litigant.” Carson v. Polley, 698 F.2d 562, 584 (5th Cir. 1982) (finding that
delay of four months between time pro se attorneys were assigned to case and time second amended
complaint was filed did not warrant denial of motion to amend).
On the other hand, the bare fact that an amendment is filed within the confines of the Court’s
Scheduling Order does not alone make a claim timely. See Mayeaux, 376 F.3d at 427. Instead, the
Court must look to the “procedural posture” of the case to determine whether the delay actually
prejudices the nonmovant. See id. at 426-27 (“The delay must be undue, i.e., it must prejudice the
nonmoving party or impose unwarranted burdens on the court.”) (emphasis in original). The Fifth
Circuit has held that when leave to amend would cause severe prejudice to defendants, it should be
denied. Mayeaux, at 427; Smith v. RMC Corp., 393 F.3d at 595-97 (5th. Cir. 2004).
At the time of Bradford’s filing of the instant motion, no new deadlines have been set, as the
Court vacated all previous deadlines on July 30, 2013. See R. Doc. 16. As such, Bradford’s motion is
timely filed. Although Bradford’s underlying motion for leave indicates that some discovery has
begun, because no deadlines are set, there is not likely any undue delay or bad faith on Bradford’s part
in filing her second amended complaint. Lastly, Defendants’ have failed to oppose the motion and
provide reasons why permitting Bradford’s filing would cause an undue delay or that she has a dilatory
motive or strategy behind her filing. Therefore, the Court finds that this factor weighs in favor of
permitting leave to amend.
B.

Repeated failure to cure deficiencies by amendments previously allowed

The second factor the court considers when determining whether or not to grant leave to amend
pursuant to 15(a) is whether the party has previously filed repeated amendments before filing the
instant motion.

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Courts in the Fifth Circuit have found that where a party has been given multiple opportunities
to cure a defect, denial of a 15(a) motion is proper. See, e.g., Price v. Pinnacle Brands, Inc., 138 F.3d
602, 607-08 (5th Cir. 1998) (upholding district court’s denial of 15(a) motion where plaintiffs had three
prior opportunities to amend their complaint).
This is only Bradford’s second attempt to amend her complaint, for which she argues is due
to the recent “factual and procedural” developments she discovered upon Defendants’ responses to her
discovery requests. See R. Doc. 25, pp. 1-2. As such, the Court finds that there has not been “repeated”
failures by Bradford to amend or “cure” alleged defects in her pleading; therefore, this factor weighs
in favor of granting the proposed amendments.
C.

Undue prejudice to the opposing party by virtue of allowance of the amendment

The third factor the court considers when determining whether or not to grant leave to amend
pursuant to 15(a) is whether the amendment will cause an undue prejudice to the opposing party.
The Fifth Circuit has cautioned that amendments should not be permitted where they would
“fundamentally alter the nature of the case.” Hebert v. Specialized Environmental Resources, LLC,
2013 WL 1288219, at *4 (E.D. La. Mar. 23, 2013); In re American International Refinery, Inc., 676
F.3d 455, 467 (5th Cir.2012) (noting that new allegations of fraud in bankruptcy proceeding would
have “fundamentally altered” the nature of a case which had previously been limited to determination
of whether one party possessed a conflict of interest warranting disgorgement of monies paid);
Mayeaux, 376 F.3d at 427–28 (finding that complaint would be “fundamentally altered” where
proposed amendment would destroy jurisdiction and “effectively reconstruc[ed] the case anew.”).
Here, Bradford’s initial and first amended complaint allege breach of contract, violations of
Louisiana’s rules on professional conduct, amongst allegations of gross negligence and that the GHW
Defendants breached the fiduciary duties they owed to Bradford in providing her legal reputation. See

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e.g., R. Docs. 1, 15. In her second amended complaint, Bradford presents these same allegations, but
provides more factual details than she provided in the first two complaints due to what she claims is
“recently discovered evidence” upon receipt of Defendants responses to her interrogatories and
requests for production of documents. See R. Doc. 25-3.2
Bradford’s new allegations include “(1) fraudulent acts (2) perjury (3) concealing of documents
(4) scrambling of documents . . . (5) non-fulfillment on behalf of the GHW Defendants, (6) violation
of privacy and (7) refusal to file an important opposition documents.” See R. Doc. 25, p. 1-3. These
allegations center around the documents that the GHW Defendants produced in response to Bradford’s
discovery requests, and do not fundamentally alter the nature of the action already filed against
Defendants. If anything, Bradford’s proposed pleading provides additional facts and documents which
may further support her allegations of the Defendants’ purported breach of their fiduciary duty, breach
of contract, and gross negligence. Furthermore, Defendants have failed to timely oppose Bradford’s
motion, therefore it has not presented evidence as to how the allowance of this amendment would be
unduly prejudicial to it. As such, the Court finds that this factor weighs in favor of granting leave to
amend the complaint.
D.

Futility of the amendment

The fourth factor the court considers when determining whether or not to grant leave to amend
pursuant to 15(a) is whether the amendment, and or potential new claims are futile. Here, Bradford
alleges several new claims that have not been raised in either of her prior complaints. Four of these
claims are “concealing of documents, non-fulfillment on behalf of GHW Defendants, refusal to file

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For example, Bradford added nearly six pages of references to bate-stamped email documents that she
attached to her motion in disc format, which were not included in such detail in her first two pleadings with the
Court regarding Defendants’ alleged failure to officially provide her with information of the pending criminal and
civil legal proceedings in Italy. See R. Doc. 25-3, p. 12-18.

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an important opposition document [and] scrambling of documents.” See R. Doc. 25, p. 1. The Court
finds that these claims are not “new” but instead clarify factual allegations regarding Bradford’s legal
malpractice claim against the GHW Defendants for their alleged failure to return her complete client
file and produce all relevant documents. As such, the Court finds to be more akin to a more definite
statement of how Defendants may have breached their fiduciary duties or acted grossly negligent,
versus entirely new claims of relief.
Bradford also alleges “fraudulent acts” as a part of her second amended complaint. Fraud is
a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust
advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from
silence or inaction. Williams v. WMX Technologies, Inc., 112 F.3d 175, 177 (5th Cir. 1997). The
elements of fraud include: “1) a misstatement or omission; 2) of material fact; 3) made with the intent
to defraud; 4) on which the plaintiff relied; and 5) which proximately caused the plaintiff's injury.”
Williams, 112 F.3d at 177; see also Cyrak v. Lemon, 919 F.2d 320 (5th Cir.1990).
Rule 9(b) of the Federal Rules of Civil Procedure require the circumstances constituting fraud
to be pled with “particularity.” Fed. R. Civ. Pro. 9(b). Under Rule 9's particularity requirement, the
party asserting the fraud claim must allege “the existence of acts and circumstances sufficient to
warrant the pleaded conclusion that fraud ha[s] occurred.” In re Haber Oil Co., 12 F.3d 426, 439 (5th
Cir.1994) (citing Askanase v. Fatjo, 148 F.R.D. 570, 574 (S.D.Tex.1993); see also Plotkin v. IP Axess
Inc., 407 F.3d 690, 696 (“the Rule 9(b) standards require specificity as to the statements (or omissions)
considered to be fraudulent, the speaker, when and why the statements were made, and an explanation
why they are fraudulent”). “At a minimum, Rule 9 requires that a plaintiff set forth the ‘who, what,
when, where, and how’ of the alleged fraud.” U.S. ex rel. Williams v. Bell Helicopter Textron Inc., 417
F.3d 450, 453 (5th Cir.2005).

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The Fifth Circuit has held that pleading fraud with particularity requires, “time, place and
contents of the false representations, as well as the identity of the person making the misrepresentation,
and what [that person] obtained thereby.” Williams, 112 F.3d at 177; Tuchman v. DSC
Communications Corp., 14 F.3d 1061, 1068 (5th Cir.1994); see also Melder v. Morris, 27 F.3d 1097,
1100 n. 5 (5th Cir.1994); Shushany v. Allwaste, 992 F.2d 517, 520 (5th Cir.1993). The defendant's
state of mind, such as “malice, intent, knowledge and other conditions of a person’s mind,” however,
may be generally averred. See e.g. Collmer v. U.S. Liquids, Inc., 268 F.Supp.2d 718, 723
(S.D.Tex.2003).
Here, the Court finds that Bradford, although a pro se Plaintiff, has alleged “fraudulent acts,”
her amended complaint fails to plead with specificity or particularity which of the allegations properly
constitutes fraud. As such, the Court finds that she has failed to properly allege a claim of fraud.
Williams,112 F.3d at 177.
As to Bradford’s claims of perjury, much like Bradford’s claims of fraud, the Court finds that
although she references the perjury charges pending in Italy, she fails to state how the GHW
Defendants committed perjury in the instant action. See R. Doc. 25-3, p. 6-7. Perjury in a civil action,
is defined as the “intentional making of a false written or oral argument in or for use in a judicial
proceeding, any proceeding before a board or official. . . under a sanction of oath or an equivalent
affirmation and must relate to matter material to the issue or question in controversy.” La. Rev. Stat.
§ 14:123. Here, there are no factual allegations which specify what Bradford believes constitutes her
claims of perjury as to the GHW Defendants. Therefore, to allow this amended claim would be futile
based on the pleading presented before the Court.
The remainder of Bradford’s motion presents factually similar claims in comparison to her
initial and first amended complaints. Therefore, the Court finds that the claims of “concealing of

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documents, non-fulfillment on behalf of GHW Defendants, refusal to file an important opposition
document [and] scrambling of documents” filed as part of her second amended complaint are not futile,
and weigh in favor of granting leave to amend.
In conclusion, the Court finds that all four factors weigh in favor of granting leave to amend
Bradford’s complaint as to the claims of “concealing of documents, non-fulfillment on behalf of GHW
Defendants, refusal to file an important opposition document [and] scrambling of documents.” As to
the claims of fraudulent acts and perjury, however, the Court finds that these claims are futile, as
Bradford has failed to state a claim for which relief may be granted.
IV.

Conclusion
Accordingly,
IT IS ORDERED that Plaintiff, Narrisa Bradford’s Motion for Leave to File Second

Amended Complaint (R. Doc. 25) is GRANTED IN PART and DENIED IN PART as set forth
above.

IT IS FURTHER ORDERED that Plaintiff has no later than fifteen days from the issuance
of this Order to file its amended complaint complaint into theas to comply withcomply with of
proposed amended into the record, so record, so as to the findings the
this Order. this Order.
findings of
New Orleans, Louisiana, this 3rd day of December 2013

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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