Hill et al v. New Orleans City et al

Filing 174

ORDER AND REASONS: IT IS ORDERED that Plaintiffs' "Motion for Sanctions and to Strike Defendant Cathey Carter's Motion for Reconsideration" Rec. Doc. 136 is DENIED and Defendants' "Motion for Leave to Supplement the Re cord" Rec. Doc. 165 is GRANTED, subject to the parties' ability to conduct further discovery on the contested issue; and IT IS FURTHER ORDERED that Defendant Carter's "Motion for Reconsideration" Rec. Doc. 135 is DENIED and all pending motions regarding continuing the submission of this motion Rec. Docs. 170 , 172 are DISMISSED AS MOOT. Signed by Judge Ivan L.R. Lemelle on 8/8/2016. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DARRIN HILL, ET AL.

CIVIL ACTION

VERSUS

NO. 13-2463

NEW ORLEANS CITY, ET AL.

SECTION “B”(3)
ORDER AND REASONS

I.

NATURE OF MOTION AND RELIEF SOUGHT
Before the Court are Defendant’s, Detective Cathey Carter,

“Motion for Reconsideration” (Rec. Doc. 135); Plaintiffs’, Darrin
Hill and Marie Hill, “Motion for Sanctions and to Strike Defendant
Cathey

Carter’s

Defendants’

Motion

opposition

for

Reconsideration”

thereto

(Rec.

Doc.

(Rec.
141)1;

Doc.
as

136);

well

as

Plaintiffs’ reply (Rec. Doc. 142). Also before the Court are
Defendants’, New Orleans Police Department (“NOPD”) Criminologist
Daniel

Waguespack,

Detective

Allen

Gressett,

Sergeant

Joseph

Hebert, and Carter, “Motion for Leave to Supplement the Record”
(Rec. Doc. 165) and Plaintiffs’ corresponding response (Rec. Doc.
167).
Defendants seek to provide new evidence that was allegedly
discovered after entry of this Court’s January 13, 2015 Order and

1

Though Plaintiffs’ motion has been “triggered” by Defendant Carter’s “Motion
for Reconsideration” (Rec. Doc. 135), counsel for Defendant Carter likewise
represent the other remaining Defendants in this case. Accordingly, this Court
assumes (and counsel imply) that all Defendants have an interest in opposing
Plaintiffs’ Motion so as to admit the “newly discovered” evidence, especially
in light of remaining Defendants’ presently pending supplemental motions for
summary judgment. (Rec. Docs.143-45).
1

Reasons denying in part Defendants’ motion for summary judgment
based on qualified immunity. Specifically, Defendants argue that
such evidence warrants reconsideration of the Court’s denial of
qualified

immunity

considered
motions

when

for

to

Defendant

reviewing

summary

Carter

remaining

judgment

based

and

should

Defendants’
on

also

be

supplemental

qualified

immunity.

Plaintiffs seek to have this Court exclude newly provided evidence
from consideration at present and at trial,2 to strike Defendant
Carter’s Motion for Reconsideration prior to requiring a response
from Plaintiffs, and, alternatively, to permit Plaintiffs to take
discovery regarding the allegedly new evidence prior to requiring
a response.
For the reasons as stated more fully herein, IT IS ORDERED
that Plaintiffs’ “Motion for Sanctions and to Strike Defendant
Cathey Carter’s Motion for Reconsideration” (Rec. Doc. 136) is
DENIED; Defendants’ “Motion for Leave to Supplement the Record”
(Rec. Doc. 165) is GRANTED; and Defendant Carter’s “Motion for
Reconsideration” (Rec. Doc. 135) is DENIED.
II.

FACTS AND PROCEDURAL HISTORY
This case arises out of the incarceration of Plaintiff, Darrin

Hill, for nearly two decades for an aggravated rape, kidnapping,
and attempted burglary of which he was eventually exonerated via

2

Though Plaintiffs wholly object to any admission of the evidence supplied in
Defendant Carter’s motion, Plaintiffs only object to consideration of the more
recently supplied evidence for the purposes of Defendants’ pending motions.
2

DNA evidence. A more detailed factual background can be found in
this Court’s January 13, 2015 Order,3 and in the Fifth Circuit’s
Judgment issued as the mandate on April 6, 2016. See Hill v. New
Orleans City, No. 15-30062, 2016 WL 1055736, at *1-3 (5th Cir.
Mar. 15, 2016); (see also Rec. Doc. 126 at 5-9). More important
for the instant motion, however, is a review of the procedural
background.
On April 25, 2013, Hill and his mother filed the instant suit
pursuant to 42 U.S.C. § 1983, naming as Defendants the City of New
Orleans and multiple NOPD employees. (Rec. Doc. 1 at 1). Hill
claimed that the Defendants violated his rights under the First,
Fourth,

and

Constitution,

Fourteenth
as

well

Amendments
as

Title

II

of

the

of

the

United
Americans

States
with

Disabilities Act (“ADA”). (Rec. Doc. 1 at 28-42). Plaintiffs also
brought several Louisiana state law claims. (Rec. Doc. 1 at 4247). On November 21, 2014, the NOPD Defendants moved for summary
judgment on the basis of qualified immunity, arguing that Hill’s
Fourth and Fourteenth Amendment claims failed because there had
been probable cause to arrest him. (Rec. Doc. 105). On January 13,
2015, this Court granted summary judgment in favor of Defendants
on Hill’s Fourth Amendment and ADA claims, but denied summary
judgment on Hill’s Fourteenth Amendment claims and Plaintiffs’

3

Hill v. New Orleans City, No. CV-13-2463, 2015 WL 222185, at *1-3 (E.D. La.
Jan. 13, 2015), dismissed in part, remanded in part, No. 15-30062, 2016 WL
1055736 (5th Cir. Mar. 15, 2016); (see also Rec. Doc. 117 at 1-9).
3

state law claims. Hill, 2015 WL 222185, at *18; (see also Rec.
Doc. 117 at 52).
Regarding Hill’s Fourteenth Amendment claims, this Court held
that Hill offered sufficient evidence to create genuine disputes
of material fact as to whether (1) Defendants employed an unduly
suggestive lineup procedure to obtain a false identification of
Hill; (2) Defendants suppressed evidence calling into question the
credibility

of

the

victim’s

identification

of

Hill;

(3)

the

victim’s boyfriend was shown a photographic lineup and, if so,
Defendants suppressed evidence that he identified someone other
than

Hill;

potentially

(4)

Defendant

exculpatory

Carter

evidence

deliberately

relating

to

the

suppressed
lack

of

connection between Hill and the address listed on the checkbook
recovered from the victim’s boyfriend’s car; and (5) Defendant
Carter and/or other Defendants deliberately suppressed the DNA
evidence that ultimately led to Hill’s exoneration. Hill, 2015 WL
222185, at *6-9; (see also Rec. Doc. 117 at 17-28). Defendants
appealed, seeking interlocutory review of the denial of summary
judgment on qualified immunity as to Hill’s Fourteenth Amendment
claims. (Rec. Doc. 119).
In the Judgment issued as the Mandate on April 4, 2016, the
United States Fifth Circuit Court of Appeals dismissed the appeal
as to Defendant Carter and remanded it with regard to the other
Defendants, finding that this Court only set forth disputed facts
4

specific to Defendant Carter and the defense of qualified immunity
required an analysis for each individual defendant. Hill, 2016 WL
1055736, at *5-6; (see also Rec. Doc. 126 at 13-14). On April 29,
2016,

this

Court

adopted

the

parties’

proposed

schedule

for

supplemental summary judgment briefing on this limited issue.
(Rec. Doc. 134). Defendants’ supplemental motions for summary
judgment have been filed and are presently pending before this
Court (Rec. Docs. 143-45), though consideration has been delayed
significantly in light of various complications as imposed by the
parties, as detailed below.
On May 4, 2016, Defendant Carter filed the instant Motion for
Reconsideration of this Court’s January 13, 2015 Order and Reasons,
attaching evidence that was not supplied in conjunction with
Defendants’ original motion for summary judgment. (Rec. Doc. 135).
Specifically, Defendant Carter attached a copy of John R. Dildy’s
Trial Report for Darrin Hill, dated February 11, 1999. (Rec. Doc.
135-4). The Trial Report states that there was “[a] consent to
adjudication N.G.B.R.I. per C. Cr. Proc. Art. 558.1 was entered
and the defendant was remanded to F.F.F.” (Rec. Doc. 135-4).4 In
addition

to

the

Trial

Report,

Defendant

Carter

attached

the

affidavit of Dildy, who stated that he was the Senior Assistant

4

See La. Code Crim. Proc. art. 558.1 (“The court may adjudicate a defendant
not guilty by reason of insanity without trial, when the district attorney
consents and the court makes a finding based upon expert testimony that there
is a factual basis for the plea.”).
5

District

Attorney

for

the

Orleans

Parish

District

Attorney’s

Office in Section D during the time period when Darrin Hill’s case
was pending in that section. (Rec. Doc. 135-3 at 1). In his
affidavit, Dildy stated that “on February 11, 1999, the prosecution
and the defense consented to adjudication of Not Guilty By Reason
of Insanity without a trial pursuant to Louisiana Code of Criminal
Procedure article 558.1.” (Rec. Doc. 135-3 at 2). Dildy concluded
that, “[i]nsofar as [he was] aware, the criminal court judge
entered the adjudication of Not Guilty By Reason of Insanity
without reviewing any evidence and making findings of fact as to
whether Darrin Hill committed any of the acts of which he was
accused.” (Rec. Doc. 135-3 at 2).
Relying
Defendant

on

Dildy’s

Carter

argues

reconsideration

of

the

Declaration

and

that

this

new

Court’s

prior

the

Trial

evidence

decision

on

Report,
warrants

Defendant’s

qualified immunity as to Hill’s Fourteenth Amendment claims. (Rec.
Doc. 135 at 1). Particularly, Defendant Carter argues that this
new evidence proves that Darrin Hill never had a trial, so as to
preclude any claim based on due process. (Rec. Doc. 135 at 1). In
response, Plaintiffs filed their Motion, seeking to exclude the
new

evidence,

to

strike

Defendant

Carter’s

motion,

and,

alternatively, leave to allow Plaintiffs to take discovery on the
new evidence prior to requiring a response. (Rec. Doc. 136).

6

Subsequently, Defendants filed their “Motion for Leave to
Supplement

the

Record”

(Rec.

Doc.

165),

seeking

to

provide

additional evidence that has allegedly been discovered since the
filing

of

Defendant

Carter’s

Motion

for

Reconsideration.

Defendants argue that the evidence – which includes a transcript
from the February 11, 1999 proceeding – further supports their
arguments

presented

in

Defendant

Carter’s

Motion

for

Reconsideration, and should likewise be considered with regard to
Plaintiffs’ motion as well as Defendants’ supplemental motions for
summary judgment. Plaintiffs oppose such an application of this
evidence, but consent to its use at trial of the above-captioned
matter.
III. LAW AND ANALYSIS
As detailed below, this Court concludes that Plaintiffs’
Motion should be denied, so as to warrant review of Defendant
Carter’s

Motion.

Additionally,

as

Defendants

requested

consideration of their Motion for Leave to Supplement the Record
prior to deliberation on other motions, it is also before this
Court.

In

contentious

light

of

matter,

the
this

numerous
Court

filings

will

in

this

individually

extremely

assess

each

pending motion, with the exception of the supplemental motions for
summary judgment. In doing so, Defendants’ procedural presentation
of important issues documents questionable tactics that will no
longer be tolerated.
7

A. Plaintiffs’ Motion for Sanctions and to Strike Defendant
Cathey Carter’s Motion for Reconsideration
As previously stated, Plaintiffs seek to have this Court
exclude Dildy’s declaration and Trial Report from consideration at
present and at trial and to strike Defendant Carter’s Motion for
Reconsideration prior to requiring a response from Plaintiffs.
(Rec. Doc. 136 at 1). Plaintiffs aver that the aforementioned
sanctions are warranted based on Defendants’ violation of the
Court’s

scheduling

orders.

Specifically,

Plaintiffs

point

to

Defendants’ failure to disclose this evidence until long after the
close of discovery and after the Court’s June 2015 summary judgment
decision

and

Defendant

Carter’s

untimely

Motion

for

Reconsideration on that decision, based exclusively on the lateproffered evidence. Alternatively, Plaintiffs seek permission to
depose Dildy, prior to requiring a response to Defendant Carter’s
Motion. (Rec. Doc. 136-2 at 24). This Court will discuss each
requested remedy, but ultimately concludes that an alternative
solution is appropriate.
1. Standard for Sanctions
Federal Rule of Civil Procedure 16(f) allows the court to
impose sanctions for various conduct relative to pretrial matters,
including the failure to adhere to scheduling orders. It provides,
“On motion or on its own, the court may issue any just orders . .
. including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a

8

party or its attorney . . . fails to obey a scheduling or other
pretrial

order.”

Fed.

R.

Civ.

P.

16(f)(1)(C).

Those

orders

authorized under the referenced Rule 37 include:
(ii)

(iii)
(iv)
(v)
(vi)
(vii)

prohibiting
the
disobedient
party
from
supporting or opposing designated claims or
defenses, or from introducing designated
matters in evidence;
striking pleadings in whole or in part;
staying further proceedings until the order is
obeyed;
dismissing the action or proceeding in whole
or in part;
rendering a default judgment against the
disobedient party; or
treating as contempt of court the failure to
obey any order except an order to submit to a
physical or mental examination.

Fed. R. Civ. P. 37(b)(2)(A)(ii)-(vii). This list is not exhaustive
and “Rule 16(f) gives the trial court wide authority to impose
effective sanctions[.]” John v. State of La., 899 F.2d 1441, 1448
(5th Cir. 1990).
Rule 16(f) serves the purpose of “encourage[ing] forceful
judicial management” throughout litigation and “improv[ing] the
quality of the trial through more thorough preparation[.]” Id.
(citation and internal quotation marks omitted). Accordingly,
“prejudice resulting from a party's noncompliance with the rules
need

not

be

shown[.]”

Id.

However,

“[o]ne

of

the

sanctions

authorized by Rule 16(f), by reference to Rule 37, is dismissal of
the case.” Callip v. Harris Cty. Child Welfare Dep't, 757 F.2d
1513, 1518 (5th Cir. 1985). In the case of such an extreme

9

sanction, there are typically one or more of three “aggravating
factors” present. Id. at 1519.
2. Discussion
As will be discussed, exclusion of the evidence is too harsh
a sanction, such that striking Defendant Carter’s Motion on this
basis is not warranted at this time. Still, Plaintiffs should be
afforded some relief in the form of an opportunity to conduct
additional discovery prior to trial, if they so desire. Finally,
this Court holds that the procedural facts of this case do not
justify striking Defendant Carter’s Motion based on untimeliness.
a. Exclusion of Evidence
Under Rule 16(f) and Rule 37, the Court may sanction a party
for violation of a discovery order by “prohibiting the disobedient
party . . . from introducing designated matters in evidence.” Fed.
R. Civ. P. 37(b)(2)(A)(ii). The courts have employed a four-part
test when deciding whether to exclude evidence as a sanction for
violating a discovery order. See Barrett v. Atl. Richfield Co., 95
F.3d 375, 380 (5th Cir. 1996). Though initially applied in the
context of expert testimony, see id., the test is not exclusive to
that type of evidence. See Paz v. Brush Engineered Materials, Inc.,
555 F.3d 383, 390 (5th Cir. 2009) (citing Barrett, 95 F.3d at 380).
The relevant factors include: “(1) the explanation, if any, for
the party's failure to comply with the discovery order; (2) the
prejudice to the opposing party of allowing the [evidence to be
10

admitted]; (3) the possibility of curing such prejudice by granting
a continuance; and (4) the importance of the [evidence].” Id.
Here, there is no doubt that the evidence sought to be
admitted is “late” in accordance with the Court’s Scheduling
Order.5 As stated in this Court’s Order entered on November 25,
2014, “the deadline for completion of discovery of factual matter
is hereby continued to January 15, 2015.” (Rec. Doc. 108 at 1).
This continuance provided Defendants – whether they choose to use
it or not – an additional two months to acquire relevant evidence
on a suit filed nearly two years prior. (See Rec. Doc. 51) (“[A]ll
discovery shall be completed no later than November 18, 2014.”);
(see also Rec. Doc. 1). Nonetheless, Defendants did not bring the
evidence to the Court’s attention until May 4, 2016, almost fifteen
months later, when Defendant Carter’s Motion for Reconsideration
was filed. (Rec. Doc. 135).
Defendants

provide

no

legitimate

explanation

for

their

failure to comply. Instead, Defendants seem to allege that it was
Plaintiffs’ burden to obtain this evidence, which they failed to
do. (See Rec. Doc. 141 at 12) (“Plaintiffs conducted almost no
discovery on Darrin Hill’s criminal proceedings, outside their
failed attempts to obtain complete records of the proceedings from
the

criminal

court

and

DA’s

Office.”).

5

Due

to

Plaintiffs’

“The Court will not permit . . . any exhibits to be used unless there has been
compliance with this Minute Entry as it pertains to . . . exhibits, without an
order to do so issued on motion for good cause shown.” (Rec. Doc. 51 at 2).
11

“failure,” Defendants claim that they assumed Plaintiffs were no
longer pursuing their Fourteenth Amendment claims,6 despite those
claims appearing multiple times in Plaintiffs’ Complaint. (See
Rec. Doc. 1 at 28-39). In light of their unjustifiable (and
questionable) beliefs, Defendants necessarily admit that they did
not conduct discovery on this issue prior to filing their Motion
for Summary Judgment on November 17, 2014, which focused on other
factual evidence. (Rec. Docs. 100, 104, 105).
As such, it appears Defendants’ failure to comply with the
Scheduling Order was the result of their own tactical decision to
pursue

summary

qualified
Defendants’

judgment

immunity.
summary

It

based
was

on

not

judgment

other
until

arguments

arguments
this
as

regarding

Court
to

rejected

Plaintiffs’

Fourteenth Amendment claims on January 13, 2015 that Defendants
acquired this allegedly new evidence. Following this, Defendants
did not seek to introduce the new evidence (and their new argument)
until the Fifth Circuit likewise rejected their original qualified
immunity arguments as they pertained to Hill’s claims against
Defendant Carter under the Fourteenth Amendment.
Nevertheless, Defendants have provided e-mail correspondence
that suggests the new evidence was obtained in pursuit of their
appeal, and certainly during the pendency of their appeal, just

6

(See Rec. Doc. 141 at 12) (“For these reasons, Defendants reasonably concluded
that Plaintiffs had abandoned their 14th Amendment claims.”).
12

four months after the close of discovery. (See Rec. Doc. 141-4 at
2) (May 21, 2015 e-mail from defense counsel to opposing counsel
states, “In supplemental response to your discovery requests,
please

find

attached

a

document

we

received

yesterday.”).

Additionally, the e-mail correspondence highlights that Defendants
disclosed this new evidence to Plaintiffs almost one year prior to
it coming to the attention of this Court and, at that time,
Plaintiffs acknowledged that additional discovery might be needed
as a result. (Rec. Docs. 141-4, 141-5).7 Further, this Court points
out that its Order and Reasons, which prompted the parties to move
to stay the matter until Defendants’ interlocutory appeal was
resolved, was filed prior to the deadline for discovery. (See Rec.
Docs. 117-20).
Second, and as was just noted, allowing Defendants to offer
this evidence would not prejudice Plaintiffs, who have known of
its existence for more than one year and well in advance of trial.
See United States v. Archbold-Manner, 581 F. Supp. 2d 22 (D.D.C.
2008) (holding that the exclusion of evidence was not warranted
based on the government's failure to provide discovery to the
defendants until it was long overdue, to meet court ordered
discovery deadlines, and to act with urgency while the defendants
were in jail awaiting trial because the government's conduct was

7

(See also Rec. Doc. 141-6) (May 22, 2015 email from Plaintiffs’ counsel
stating, “Once we are back in the district court preparing for trial we can see
what, if any, additional discovery is needed.”).
13

not in bad faith and the defendants still had time to use discovery
materials that the government provided in advance of trial). Any
prejudice at this juncture is due to Plaintiffs’ own failure to
look

into

the

disclosed

materials.

This

Court

observes

the

peculiarity of Plaintiffs’ motion to strike the same evidence that
Plaintiffs formerly recognized might require additional discovery.
Because Defendants’ violation of the Scheduling Order is not the
reason for any resulting prejudice to Plaintiffs, curing that
prejudice with a continuance is not necessary.
Finally, the Court recognizes some value of the evidence,
though it makes no conclusion as to its weight at this time.
Plaintiffs’ remaining claims are based on due process under the
Fourteenth

Amendment.

Therefore,

any

evidence

of

the

process

afforded to Darrin Hill – or the lack thereof – is of the utmost
import in this matter. The evidence sought to be offered relates
to what occurred on February 11, 1999, the day Darrin Hill was
adjudicated “not guilty by reason of insanity” and consequently
incarcerated. For these reasons, excluding the evidence in its
entirety would offend the interests of justice.
b. Permitting Additional Discovery
Under Rule 16(f), the Court “may issue any just orders” when
a party violates “a scheduling or other pretrial order.” Fed. R.
Civ.

P.

16(f)(1)(C).

Though

this

Court

has

decided

to

deny

Plaintiffs’ motion inasmuch as it seeks to exclude the evidence,
14

it does not follow that Plaintiffs should be deprived of all
relief. Rather, in light of the foregoing discussion and decision,
this

Court

concludes

that

Plaintiffs

should

be

given

the

opportunity to conduct additional discovery. After all, it appears
that

this

is

what

the

parties

initially

contemplated

upon

Defendants’ disclosure of the evidence when it was discovered.
(See Rec. Doc. 141-6) (May 22, 2015 email from Plaintiffs’ counsel
stating, “Once we are back in the district court preparing for
trial we can see what, if any, additional discovery is needed.”).
Thus, the parties are not prohibited from conducting additional
discovery.8
c. Striking Defendant’s Motion
Under Rule 16(f) and Rule 37, the Court may sanction a party
for violation of a Scheduling Order by “striking pleadings in whole
or in part.” Fed. R. Civ. P. 37(b)(2)(A)(iii).9 A motion is not a
pleading, as it is not a complaint, an answer, a reply to a
counterclaim, an answer to a cross-claim, a third-party complaint,
or a third-party answer. See Fed. R. Civ. P. 7(a) (defining
pleadings); see also Chaverri v. Dole Food Co., No. CV-11-1289,

8

This opportunity need not be afforded prior to requiring a response to
Defendant Carter’s Motion, because this Motion must likewise be denied as
discussed, infra.
9 Plaintiffs argue that Defendant Carter’s Motion should be stricken because it
is based exclusively on the new evidence previously discussed and because it
was likewise filed in violation of the Scheduling Order. Because this Court has
already determined that the evidence need not be excluded, Defendant Carter’s
Motion should not be stricken based on this argument and we do not discuss
remedies available under Fed. R. Civ. P. 37(b)(2)(A)(ii).
15

2012 WL 2087409, at *2 (E.D. La. June 8, 2012) (“Pleadings do not
include motions[.]”); Jackson v. State Farm Fire & Cas. Co., No.
CV-06–7202, 2010 WL 724108, at *10 (E.D. La. Feb. 22, 2010)
(“[M]otions are not ‘pleadings’ . . . .”). Nevertheless, the
district court may issue any just order in its discretion if a
party fails to obey a scheduling order. See Fed. R. Civ. P.
16(f)(1)(C); see also Equal Rights Cent. v. Post Props., Inc., 246
F.R.D. 29, 32 (D.D.C. 2007) (noting that district court has
discretion to dismiss a motion for failure to comply with the meet
and confer requirement). Moreover, this Court’s Scheduling Order
provides that “[a]ny motions filed in violation of this order shall
be deemed waived unless good cause is shown.” (Rec. Doc. 51 at 1).
Again, it is undisputed that Defendant Carter’s Motion for
Reconsideration (Rec. Doc. 135) is “late” in accordance with the
Court’s Scheduling Order and therefore filed in violation of that
Order. As stated in this Court’s Order entered on October 15, 2014,
the deadline for submitting case-dispositive pretrial motions was
December 3, 2014. (Rec. Doc. 82). Defendant Carter’s Motion for
Reconsideration was filed on May 4, 2016. (Rec. Doc. 135). Still,
this

Court

notes

that

Defendant

Carter’s

Motion

seeks

reconsideration of this Court’s January 13, 2015 Order and Reasons.
Consequently, Defendant Carter’s Motion could not have been filed
in accordance with the Scheduling Order, as it was only prompted

16

by an Order entered after the expiration of the deadline for casedispositive motions.
Additionally, when Defendants sought interlocutory review of
that Order and Reasons, the parties jointly moved to stay the
proceedings pending the Fifth Circuit’s resolution of the appeal
after a full acknowledgement that the “appeal [would] divest the
Court of jurisdiction over those aspects of the case that [were]
under review[,]” but that the Court could “still proceed with
matters not involved in the appeal[.]” (Rec. Doc. 118 at 1)
(quoting Alice L. v. Dusek, 492 F.3d 563, 564-65 (5th Cir. 2007))
(internal quotations omitted).10 The Court granted this Motion on
January 23, 2015 (Rec. Doc. 120) and the Fifth Circuit’s Judgment
was not issued as the mandate until April 6, 2016. (Rec. Doc. 126).
Defendant Carter’s Motion for Reconsideration was filed less than
one month later. In light of this, striking Defendant Carter’s
Motion is too harsh a penalty.
Accordingly,

IT

IS

ORDERED

that

Plaintiffs’

Motion

for

Sanctions and to Strike Defendant Cathey Carter’s Motion for
Reconsideration is DENIED, subject to the parties’ opportunity to
conduct additional discovery.
B. Defendants’ Motion for Leave to Supplement the Record

10

As will be discussed, evidentiary questions regarding factual disputes like
the ones at issue here are matters retained by the district court for review,
as they are not immediately appealable. Thus, the parties could have agreed to
resolve the instant dispute at a sooner date, but instead selected to stay the
proceedings.
17

Defendants likewise move for leave to supplement the record,
arguing that consideration of the attached trial transcripts is
necessary prior to a review of any of the parties’ pending motions.
Plaintiffs do not object to the admission of this evidence, but
argue that it should not be presented in contemplation of the
pending motions. In light of the foregoing discussion regarding
Dildy’s declaration and Trial Report, it follows that this evidence
should also be admissible, subject to the parties’ ability to
conduct further exploration as to Darrin Hill’s adjudication of
not guilty by reason of insanity. Because this Court has already
determined that denial of Plaintiffs’ motion is appropriate under
the circumstances, it is unnecessary to apply this evidence to
that motion.
For the foregoing reasons, IT IS ORDERED that Defendants’
Motion for Leave to Supplement the Record is

GRANTED, again

conditional on the parties’ rights to conduct further discovery,
and leaving open the availability of financial sanctions.
C. Defendant Cathey Carter’s Motion for Reconsideration
Defendant

Carter’s

Motion

for

Reconsideration

seeks

reconsideration pursuant to Rule 54(b) of this Court’s January 13,
2015 Order and Reasons, which granted in part and denied in part
Defendants’

motion

for

summary

judgment.

(Rec.

Doc.

117).

Defendant argues that the new evidence acquired from Dildy warrants
reconsideration

of

the

Court’s
18

prior

decision

on

Defendant’s

qualified

immunity

as

to

Darrin

Hill’s

Fourteenth

Amendment

claims. (Rec. Doc. 135 at 1). Specifically, Defendant Carter argues
that this new evidence proves that Darrin Hill never had a trial,
so as to preclude any claim based on due process. (Rec. Doc. 135
at 1). For the reasons to follow, Defendant Carter’s motion cannot
prevail.
1. Standard for Reconsideration Pursuant to Rule 54(b)
Federal Rule of Civil Procedure 54(b) allows the Court to
revise certain interlocutory orders prior to entry of judgment
that terminates the action. It states, “[A]ny order or other
decision, however designated, that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties
does not end the action as to any of the claims or parties and may
be revised at any time before the entry of a judgment adjudicating
all the claims and all the parties' rights and liabilities.” Fed.
R. Civ. P. 54(b). “Rule 54(b) authorizes a district court to
reconsider and reverse its prior rulings on any interlocutory order
‘for any reason it deems sufficient.’” United States v. Renda, 709
F.3d 472, 479 (5th Cir. 2013) (quoting Saqui v. Pride Cent. Am.,
LLC, 595 F.3d 206, 210–11 (5th Cir. 2010)). This broad procedural
power, reviewed only for abuse of discretion, must be exercised
sparingly in order to forestall the perpetual reexamination of
orders and the resulting burdens and delays. See Calpetco 1981 v.
Marshall Expl., Inc., 989 F.2d 1408, 1414 (5th Cir. 1993); see
19

also 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure § 4478.1 (2d ed. 2016).
“The general practice of courts in this district has been to
evaluate Rule 54(b) motions to reconsider interlocutory orders
under the same standards that govern Rule 59(e) motions to alter
or amend a final judgment.” Lightfoot v. Hartford Fire Ins. Co.,
No. CV- 07-4833, 2012 WL 711842, at *2 (E.D. La. Mar. 5, 2012)
(citations

omitted).

Accordingly,

“[c]ourts

in

the

Eastern

District of Louisiana have generally considered four factors in
deciding a motion under the Rule 59(e) standard[.]” Id. These
factors include determining whether:
(1)

(2)
(3)
(4)

the motion is necessary to correct a
manifest error of law or fact upon which
the judgment is based;
the movant presents newly discovered or
previously unavailable evidence;
the motion is necessary in order to
prevent manifest injustice; or
the motion is justified by an intervening
change in controlling law.

Id. (citations omitted). As with Rule 59(e), Rule 54(b) “serve[s]
the narrow purpose of allowing a party to correct manifest errors
of law or fact or to present newly discovered evidence.” Id. at *3
(quoting Waltman v. Int'l Paper Co., 875 F.2d 468, 473 (5th Cir.
1989)).
2. Discussion
Here, it is undisputed that Defendants have come forward with
what is an abundance of “newly discovered” evidence, as Didly’s
20

declaration,

Dildy’s

Trial

Report,

and

the

transcripts

from

February 11, 1999 were not obtained until after this Court’s
January 13, 2015 Order and Reasons. In their motion to strike,
Plaintiffs argue that Defendant’s Motion for Reconsideration is
not warranted because, in addition to numerous other reasons, it
is not based on evidence that was “previously unavailable.” This
Court agrees that the evidence was previously available, as it was
generated by an event in 1999 and obviously did not magically
resurface

in

the

absence

of

some

pursuit

by

the

parties.

Nevertheless, the Court need not address whether such an argument
merits denial.
a. Scope of Rule 54(b) and Qualified Immunity
First,
procedurally

this
proper

Court
to

briefly

consider

addresses
a

motion

for

whether

it

is

reconsideration

pursuant to Rule 54(b) when it is based on an order that was
previously appealed. Typically, a denial of summary judgment is an
interlocutory

order

under

Rule

54(b),

which

the

Court

“may

reconsider and reverse any time before entering final judgment.”
Millar v. Houghton, 115 F.3d 348, 350 (5th Cir. 1997). However,
the Fifth Circuit has recognized an exception to Rule 54(b) under
the collateral order doctrine allowing for the immediate appeal of
some denials of summary judgment based upon qualified immunity.
Cantu v. Rocha, 77 F.3d 795, 802 (5th Cir. 1996) (emphasis added).
Specifically,

“[a]ppeals

from

district
21

court

orders

denying

summary judgment on the basis of qualified immunity are immediately
appealable under the collateral order doctrine, when based on an
issue of law.” Id. As the parties are aware, Defendants previously
sought this relief.
Consequently, the Court must ask whether it is now possible
for a party to challenge an order – already deemed appealable and
on remand from such action – under a mechanism reserved for review
of interlocutory orders. As previously alluded, the Fifth Circuit
has concluded that a district court's denial of qualified immunity
based

upon

evidentiary

sufficiency

is

not

within

the

narrow

exception of the collateral order doctrine, and is considered
interlocutory rather than final. Id. (citing Johnson v. Jones, 515
U.S. 304, 313 (1995)). Thus, in cases such as the instant one where
Defendant Carter’s Motion for Reconsideration is based on the
sufficiency

of

the

evidence

to

support

denial

of

qualified

immunity, Rule 54(b) allows this Court to reconsider its prior
ruling “for any reason it deems sufficient, even in the absence of
new evidence or an intervening change in or clarification of the
substantive law.” Saqui, 595 F.3d at 210–11) (quoting Lavespere v.
Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir.
1990), abrogated on other grounds by Little v. Liquid Air Corp.,
37 F.3d 1069 (5th Cir. 1994)).
Though the procedural history in this case is admittedly
peculiar, this Court is unaware of any basis to defer exercising
22

its authority under Rule 54(b) in the present circumstances. As
pointed out by the Fifth Circuit, Defendants’ instant argument was
not properly appealable, as it concerned an issue of fact that
this Court had already entered a finding on. The Fifth Circuit
correctly reminded that it did “not have jurisdiction on an
interlocutory appeal from a denial of summary judgment to determine
‘whether or not the pretrial record sets forth a ‘genuine’ issue
of fact for trial.’” Hill, No. 15-30062, 2016 WL 1055736, at *4
(quoting Johnson, 515 U.S. at 319). Therefore, it did not reach
the issue of whether Darrin Hill went to trial. Id. at *2 n.5 (“The
defendants place a great deal of stress on the lack of evidence in
the record regarding the details of the judicial proceeding that
resulted in Hill being found not guilty by reason of insanity.
They argue that the record does not definitively establish whether
Hill went to trial. The district court found, however, that Hill
was tried.”). This Court accordingly concludes that it is within
its broad discretion to reconsider its January 13, 2015 Order and
Reasons, as long as that reconsideration is limited to evidentiary
issues of fact.
b. Application of Rule 54(b) to Relevant Facts
Though Rule 54(b) allows the Court to revise interlocutory
orders “at any time before entry of a judgment adjudicating all
the claims and all the parties’ rights and liabilities[,]” as with
Rule 59(e), grant of such an “extraordinary remedy . . . should be
23

used sparingly.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th
Cir. 2004). Notably, reconsideration under Rule 54(b) of qualified
immunity would essentially provide Defendants three opportunities
to advance their arguments – first by summary judgment, second by
appeal, and third in this instance. While granting a motion
pursuant to Rule 54(b) is considered “extraordinary” on its own,
to do so in light of the procedural background of the instant case
would exceed such extraordinariness.
“The

court

must

strike

the

proper

balance

between

two

competing imperatives: (1) finality, and (2) the need to render
just decisions on the basis of all the facts.” Edward H. Bohlin
Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993) (citation
omitted). Thus, Rule 54(b) motions should not be used to relitigate
old matters, raise new arguments, or submit evidence that could
have

been

presented

earlier

in

the

proceedings.

Crawford

v.

Louisiana, No. CV-14-1190, 2015 WL 2037915, at *3 (E.D. La. Apr.
30, 2015) (citations omitted). Though a motion under Rule 54(b)
“must clearly establish either a manifest error of law or fact or
must present newly discovered evidence[,]” it “cannot be used to
raise arguments which could, and should, have been made before the
judgment issued.” Rosenblatt v. United Way of Greater Houston, 607
F.3d 413, 419 (5th Cir. 2010) (citations omitted).
Though Defendants seem to aver that they could not possibly
have been aware of this argument in the absence of this “new”
24

evidence,11 this Court remarks that Defendants had over eighteen
months between the initiation of this suit and the filing of their
motion for summary judgment to construct their legal theories and
conduct discovery accordingly. It is not the case – as in many
instances where qualified immunity is at issue – that Defendants
filed

their

first

motion

for

summary

judgment

prior

to

any

discovery. See, e.g., Enlow v. Tishomingo Cty., Miss., 962 F.2d
501, 507 (5th Cir. 1992) (stating that it was within the district
court’s

discretion

to

allow

a

successive

motion

for

summary

judgment on the basis of qualified immunity, when the first motion
was

filed

Defendants’

prior

to

apparent

discovery

at

unawareness

the
of

outset
this

of

legal

the

case).12

theory

and

accusations against Plaintiffs for causing the same do not excuse
Defendants for failing to pursue this argument until this late
juncture. Even with new available evidence, Defendants should not
be permitted to craft yet another legal argument in the wake of
the perceived failure of their previous arguments. To allow such

11

“In light of the fact that the Court—and admittedly, the parties—did not
fully understand the process of Darrin Hill’s prosecution and adjudication, the
Court should also reexamine its remaining findings.” (Rec. Doc. 135-1 at 17).
12
The district court . . . opted to allow a successive
motion for summary judgment. Such a determination,
particularly regarding questions of the timing and
sequence of motions in the district court, best lies at
the district court's discretion. At the outset of the
litigation, prior to discovery, [defendant] moved for
summary judgment on the basis of qualified immunity. At
that juncture, the district court found that questions
of material fact remained. [The] second summary
judgment motion then followed discovery and amendment
of the pleadings.
Id. (internal citations omitted).
25

action would offend this Court’s interest in finality, especially
when Defendants are not deprived the benefit of a just decision
rendered on the basis of all the facts in the context of a trial.
Further, though this Court rejects Defendant Carter’s Motion
for Reconsideration so as to obviate the need for a discussion of
the newly provided evidence, it notes that such evidence does not
appear dispositive. Rather, the conflicting evidence suggests in
some instances that Darrin Hill entered a plea, while in others
that

an

adjudication

by

means

of

trial-like

procedures

was

employed.13 As Defendants somewhat concede, “Darrin Hill’s trial
and conviction ha[s] been, at the very least, called into question
by this new evidence.” (Rec. Doc. 141 at 11). Such a minimal
showing is insufficient for purposes of summary judgment relief
and amending this Court’s prior Order and Reasons to reflect this
novel ambiguity would not benefit Defendants. Nevertheless, to the
extent this Court affirmatively stated in its prior Order and
Reasons

that

Darrin

Hill

was

tried

13

–

based

solely

on

the

In the transcript from February 11, 1999, the court remarked that the case
“is set for trial today[,]” that the court and parties “are here for trial
today[,]” and that the parties are “submitting on the evidence that has
previously been introduced in the pretrial hearings . . . [a]nd[] making that
a part of the trial today[.]” (Rec. Doc. 165-1 at 3-4). Rather confusingly, in
the Criminal District Court Docket, the minute entry from that day states that
“Defendant appeared in Court attended by Counsel,” who “entered a plea of not
guilty[.]” (Rec. Doc. 136-4 at 2). This apparent contradiction is clarified in
the March 2, 1999 transcript, where the court discussed the error in the prior
minute entry. (Rec. Doc. 165-1 at 11-12) (“So, on February 11th, the Minute
Entry is incorrect. . . . It should [sic] indicate that he was found not guilty,
because this is incorrect. He pled not guilty by reason of insanity, and he was
found not guilty by reason of insanity.”). Correspondingly, the minute entry
from this date states that “on 2/11/99 Defendant was found not guilty by reason
of insanity[.]” (Rec. Doc. 136-4 at 2).
26

representations of the parties and this fact being undisputed at
that time – it acknowledges that this fact is now in dispute and
will need to be resolved by the factfinder at trial.
Accordingly, IT IS ORDERED that Defendant Carter’s Motion for
Reconsideration is DENIED.
IV.

CONCLUSION
For the reasons as stated herein,
IT IS ORDERED that Plaintiffs’ “Motion for Sanctions and to

Strike Defendant Cathey Carter’s Motion for Reconsideration” (Rec.
Doc. 136) is DENIED and Defendants’ “Motion for Leave to Supplement
the Record” (Rec. Doc. 165) is GRANTED, subject to the parties’
ability to conduct further discovery on the contested issue; and
IT IS FURTHER ORDERED that Defendant Carter’s “Motion for
Reconsideration” (Rec. Doc. 135) is DENIED and all pending motions
regarding continuing the submission of this motion (Rec. Docs.
170, 172) are DISMISSED AS MOOT.
New Orleans, Louisiana, this 8th day of August, 2016.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

27