Mitchell v. Hood
ORDER & REASONS that the 118 Motion to Dismiss; 121 Motion to Dismiss for Lack of Jurisdiction; 125 Motion to Dismiss for Lack of Jurisdiction; 128 Motion to Dismiss for Lack of Jurisdiction are DENIED. IT IS FURTHER ORDERED that the stay on discovery and discovery proceedings authorized by this Courts November 25, 2015, Order, R. Doc. 138, is hereby LIFTED. Signed by Judge Eldon E. Fallon on 12/2/15. (dno)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KIANA AARON MITCHELL
SECTION "L" (2)
ORDER & REASONS
Before the Court are four Motions to Dismiss for Lack of Jurisdiction filed by
subpoenaed non-parties to the case at bar. R. Docs. 118, 121, 125, and 128. The Court has
reviewed the briefs and the applicable law, and now issues this Order & Reasons.
This case involves a run-off election between Plaintiff Kiana Aaron Mitchell and Judge
Ernestine Teena Anderson-Trahan for Second City Court Judge for the City of New Orleans,
which took place Saturday, December 8, 2012. Specifically, this case pertains to a negative
campaign postcard mailed to Algiers residents before the run-off election, which accused the
Plaintiff of assaulting a pregnant woman. The campaign postcard indicated that it was “[p]aid for
by B. Hood,” and listed a Washington, D.C., address as the return address. An investigation
revealed that the named individual, Brett Hood, resided at the address referenced in the postcard.
On September 19, 2013, Plaintiff filed a complaint against Defendant Brett Hood
(“Hood”) seeking damages for “falsely attacking [Plaintiff’s] fitness for public service and
revealing personal information about [Plaintiff] in a manner that was injurious to [her] personal,
professional and political reputation . . .” R. Doc. 1. Mitchell also avows that she is entitled to
damages for invasion of privacy generally. R. Doc. 1 at 11. Hood filed an answer denying the
allegations and subsequently moved to amend his answer to add a third party complaint, naming
Kelvin P. McClinton (“McClinton”) and Judge Trahan, Plaintiff’s opponent in the Second City
Court judicial race, as third party defendants to the suit. In the third party complaint, Hood
asserts claims against McClinton and Judge Trahan of fraud, misrepresentation, abuse of right,
identity theft, and injuries to his personal and professional reputation for placing his name on the
mailer without his permission. In turn, on March 17, 2014 Plaintiff amended her complaint
naming McClinton as an additional defendant. R. Doc. 30.
On March 24, 2014, Judge Trahan filed a motion to strike Plaintiff’s complaint in
accordance with Louisiana Code of Civil Procedure article 971 and award attorney’s fees
because Plaintiff did not meet her burden of establishing a probability of success on the merits.
The Louisiana Code of Civil Procedure Article 971.2 provides that a cause of action relating to
the exercise of an individual’s right of free speech “in connection with a public issue shall be
subject to a special motion to strike, unless the court determines that the plaintiff has established
a probability of success on the claim.” Judge Trahan argued that this Court should strike the
Plaintiff’s complaint because Plaintiff failed to establish that a contractual or fiduciary
relationship exists with respect to her abuse of right claims. Alternatively, Judge Trahan argued
that this Court treat Plaintiff’s causes of action as defamation claims. As such, she argued that
this Court should strike the complaint because the information contained in the political postcard
The Court did not rule on the merits of the motion but found that more discovery was
necessary to resolve the motion. R. Doc. 60. The Court therefore ordered the parties to
conduct additional discovery on the issue of who made the statements on the postcard and who
authorized the postcard. R. Doc. 60 at 6. Judge Trahan filed a motion for interlocutory appeal
pursuant to 28 U.S.C. § 1292(b), which the Court granted on May 2, 2014. The Fifth Circuit
issued a per curiam opinion on June 4, 2015, finding that Judge Trahan could not be properly
impleaded into the case under Federal Rule of Procedure 14. Specifically, the Fifth Circuit held
that Hood’s claims against Judge Trahan are not contingent upon Mitchell’s claims against Hood
because whether Mitchell proves that Hood made defamatory statements in the postcard does not
govern Hood’s claims against Judge Trahan. The Fifth Circuit remanded the case back to this
Court and ordered the Court to dismiss Judge Trahan.
Over the course of the litigation, Mitchell has made statements regarding Hood’s
potential liability on the merits. Mitchell included a declaration by Hood as an exhibit in
Mitchell’s response to Judge Trahan’s 971 motion. R. Doc. 53-1. Mitchell then made
statements regarding Hood’s position that Hood did not author any of the statements contained in
the postcard. See, e.g., R. Doc. 53 at 10 (“Hood has never claimed that the statements contained
in the Postcard are his—in fact he has outright denied making them.”). Notably, Mitchell has
argued before this Court that “Hood Did Not Commit An Act in Furtherance of His Right to Free
Speech.” R. Doc. 53 at 9.
Upon remand, this Court dismissed the defendant’s impleader and proceeded with the
case. R. Doc. 90. The Plaintiff noticed depositions of various non-litigant witnesses and had
subpoenas issued for their attendance.
There are four separate motions to dismiss for lack of subject matter jurisdiction filed in
this case. R. Docs. 118, 121, 125, 128. Each of the motions is filed by one of the parties
currently subject to a subpoena: Jacques Morial, Ernestine Anderson-Trahan, Tamara GriffinMajor, and Lillian Dunn. The movants’ arguments are largely in accord. Each movant
contends that this Court lacks subject matter jurisdiction because there is no real case or
controversy between Mitchell and Hood. To support this position, movants argue that: 1)
parties subject to a subpoena have standing to attack subject matter jurisdiction; 2) Mitchell
extinguished any case or controversy when she judicially adopted Hood’s defenses; and 3)
Mitchell cannot meet the sufficient amount in controversy for diversity jurisdiction.
A. Movants’ Motions to Dismiss for Lack of Subject Matter Jurisdiction
Movants argue that they are entitled to attack this Court’s subject matter jurisdiction on
the grounds that a court without jurisdiction cannot issue a valid subpoena. See, e.g., R. Doc.
118-1 at 5. Movants cite Supreme Court and district court case law, both of which suggest that
“the subpoena power of a court cannot be more extensive than its jurisdiction.” United States
Catholic Conf. v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76 (1988); Billings v.
Aeropres Corp., 522 F. Supp. 2d 1121, 1130 (E.D. Ark. 2007) (“If a court does not have subjectmatter jurisdiction, it cannot issue subpoenas, even to non-party witnesses.”). Movants also
contend that a subpoenaed non-party has standing to assert a motion to dismiss for lack of
subject matter jurisdiction. R. Doc. 118-1 at 5.
Turning to this Court’s jurisdiction, movants rest their motions to dismiss on Article III’s
case or controversy requirement for a federal court proceeding. R. Doc. 118-1 at 6–7 (citing
Burke v. Barnes, 479 U.S. 361, 363 (1987). Movants argue that Plaintiff Mitchell judicially
admitted in proceedings before this Court and the Fifth Circuit that Hood is not liable to her in.
R. Doc. 118-1 at 6–7. Movants reference the five-prong test for a judicial admission, and cite
specific pleadings by Mitchell that allegedly qualify as judicial admissions. R. Doc. 118-1 at 6–
Movants quote Mitchell’s pleadings and suggest that Mitchell conceded that Hood was
not responsible for the campaign postcard. Movants further argue that Hood engaged in no
speech. R. Doc. 118-1 at 6. Movants then contend that if this Court finds that Mitchell
judicially admitted that Hood committed no injury to Mitchell, this Court must void its
subpoenas and dismiss the case for lack of subject matter jurisdiction. R. Doc. 118-1 at 7–9.
The motions of Major and Dunn largely repeat and adopt the preceding arguments.
Movant Trahan, however, presents one additional argument—Trahan contends that Mitchell
cannot present evidence that she meets the $75,000 jurisdictional minimum. R. Doc. 121-2 at 7.
Trahan notes that the loss of political office has never been recognized as a compensable
property right. R. Doc. 121-2 at 8. Trahan then asserts that Mitchell’s claims for “injury to
professional reputation,” “injury to personal reputation,” and “injury to political reputation”
cannot reach the $75,000 limit. Trahan claims that no precedent exists for the award of
reputational damages under the “abuse of rights” cause of action. Trahan does not address
Hood’s claims for invasion of privacy pursuant to the “abuse of rights” cause of action.
B. Mitchell’s Response
Mitchell timely responds. R. Doc. 140. Mitchell contests movants’ argument that the
statements at issue are judicial admissions. Mitchell notes that all of the statements cited by
movants were given in regards to Trahan’s Article 971 motion. R. Doc. 140 at 2–8. Mitchell
cites briefs provided by both parties, noting in particular that the Fifth Circuit was presented with
this argument. R. Doc. 140 at 3–5. Mitchell then characterizes her citations to Hood’s theory
of the case as evidentiary admissions, and argues that evidentiary admissions do not have the
same preclusive effect as judicial admissions. R. Doc. 140 at 6–8.
Mitchell denies movants’ assertion that no live case or controversy exists. Mitchell
contends that Hood “played a role,” in the attack on Mitchell, and that this position is sufficient
to create an adversarial conflict for purposes of Article III’s case or controversy requirement. R.
Doc. 140 at 8. Mitchell also argues that many of the movants’ cited examples of collusion are
truly adversarial in nature. R. Doc. 140 at 9–11.
Lastly, Mitchell asserts that the case at bar meets the $75,000 amount in controversy
requirement for subject matter jurisdiction. Mitchell cites defamation cases with verdicts in
excess of $75,000, and argues that they are analogous to the case at bar. R. Doc. 140 at 11–12.
Lastly, he argues that in essence this is a tort case seeking damages for personal injuries
sustained by the plaintiff.
LAW AND ANALYSIS
A. The Law of Article III Jurisdiction over Cases and Controversies
Article III of the Constitution limits the jurisdiction of the judiciary to “cases” or
“controversies.” U.S. Const. III, § 2. “No principle is more fundamental to the judiciary’s
proper role in our system of government than the constitutional limitation of federal-court
jurisdiction to actual cases or controversies.” DaimlerChrylser Corp. v. Cuno, 547 U.S. 332, at
341–42 (2006) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 37
(1976). Article III demands a conflict between at least two genuinely adverse parties. Kirkland
v. New York State Dep’t of Correctional Services, 1988 WL 108485, at *3 (S.D.N.Y. Oct. 12,
1988). If all parties to a lawsuit desire the same result, no case or controversy exists, and the
court should dismiss for lack of subject matter jurisdiction. Moore v. Charlotte-Mecklenburg
Bd. of Ed., 402 U.S. 47, 47 (U.S. 1971); see also Kirkland 1988 WL 108485, at *3 (“The Court
must dismiss a case where the cooperation of the plaintiff and the defendant might adversely
affect the rights of outsiders if the question of law is decided in the manner that both of the
Rule 12(b)(1) of the Federal Rules of Civil Procedure governs challenges to a court’s
subject matter jurisdiction. A court must dismiss a case for lack of subject matter jurisdiction
“when the court lacks the statutory or constitutional power to adjudicate the case.” Home
Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting
Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996). A Court
should grant a motion under 12(b)(1) “if it appears certain that the plaintiff cannot prove any set
of facts in support of his claim that would entitle him to relief.” Id.
a. Movants’ Standing to Raise Subject Matter Jurisdiction
The movants have standing to contest subject matter jurisdiction, because movants are
non-parties subjected to a subpoena. The Supreme Court held in United States Catholic Conf. v.
Abortion Rights Mobilization, Inc. that a non-party subject to a subpoena may attack a contempt
order for failure to comply with the subpoena by contesting the court’s subject matter
jurisdiction. 487 U.S. 72, 76 (1988). Courts in the wake of Catholic Conference have
expanded this standing doctrine to allow for direct attacks on subject matter jurisdiction before
the issuance of a contempt citation. See, e.g., Dunham v. Coffeeville Resources, 2007 WL
2403689, at *1 (D. Kan. 2007) (“[A] non-party who is served with a subpoena by a federal court
can, as a part of any objection to the subpoena, raise the court’s lack of subject matter
jurisdiction, and if the court does lack subject matter jurisdiction, then the subpoena is void.”;
Billings v. Aeropres Corp., 522 F. Supp. 2d 1121, 1130 (E.D. Ark. 2007) (“If a court does not
have subject matter jurisdiction, it cannot issue subpoenas, even to non-party witnesses.”); Hous.
Bus. Journal v. Office of the Comptroller of the Currency, 86 F.3d 1208, 1213 (D.D.C. 1996).
Because the motions at issue are within the purview of Catholic Conference, movants have
standing to contest this Court’s subject matter jurisdiction.
b. Analysis of the Alleged Judicial Admissions
Mitchell’s statements do not constitute judicial admissions. “A judicial admission is a
formal concession in the pleadings or stipulations by a party or counsel that is binding on the
party making them. . . . [I]t has the effect of withdrawing a fact from contention.” Martinez v.
Bally’s La., Inc., 244 F.3d 474, 476–77 (5th Cir. 2001). In order for a statement to constitute a
judicial admission, it must be “(1) made in a judicial proceeding; (2) contrary to a fact essential
to the theory of recovery; (3) deliberate, clear, and unequivocal; (4) such that giving it conclusive
effect meets with public policy; and (5) about a fact on which judgment for the opposing party
can be based.” Heritage Bank v. Redcom Laboratories, Inc., 250 F.3d 319, 329 (2001).
All of the movants’ cited statements concerning Hood were made before this Court or the
Fifth Circuit in the instant litigation. Thus, the first prong of the judicial admission test is
satisfied. Movants’ cited statements also satisfy the second prong of the judicial admission test:
the statements are contrary to facts essential to the theory of recovery. Mitchell stated before
this Court that Hood uttered no speech, and that “Hood did not commit an act in furtherance of
his right to free speech.” See R. Doc. 53 at 6, 9. Mitchell seeks to recover on grounds of injury
to professional reputation, injury to personal reputation, injury to political reputation, and
invasion of privacy. Each of these causes of action draws from the abuse of the freedom of
expression, as defined in Article 1 of Louisiana’s constitution. La. Const. Ann. art. I, § 7.
Avowing that Defendant did not speak or act in furtherance of the right to speak is contrary to a
position that Defendant abused his freedom of expression.
While the third prong is more difficult to evaluate, the Court finds that none of Mitchell’s
statements were sufficiently deliberate and clear to constitute judicial admissions. “Hood Did
Not Commit An Act in Furtherance of His Right to Free Speech” appears on its face to be a
clear, deliberate, and unequivocal statement. R. Doc. 53 at 9. The Court similarly notes that
Mitchell’s statement that “There Is No Defense If There Is No Speech” appears without context
to be a clear, deliberate, and unequivocal statement. R. Doc. 53 at 6; see also Case 14-30537,
Document No. 00512744513 at p.32 (“These are not the statements of an individual who felt
compelled to rise up from his home in Washington D.C., to inform voters of New Orleans of the
qualifications of Mitchell . . . .”). But when placed in context another purpose becomes clear.
The Court finds that these references do not constitute judicial admissions, because the assertions
were made for the independent purpose of attacking Trahan’s Article 971 standing. While
Mitchell did not phrase every statement in this light, it is clear from the record that Mitchell did
not intend to adopt Hood’s denial of liability. Rather, Mitchell highlighted Hood’s contention
that he did not speak on the grounds that Article 971 standing was only available if Hood
acknowledged that he spoke. See R. Doc. 53 at 11 (“[E]very case applying the article cited by
Trahan involved a specific act taken, acknowledge and defended by the person exercising the
right of petition or free speech.”). As such, these statements are mere evidentiary admissions,
and are not clear, deliberate, and unequivocal for purposes of a judicial admission. See
Martinez v. Bally’s Louisiana, Inc., 244 F.3d 474 (5th Cir. 2001) (citing McNamara v. Miller,
269 F.2d 511, 515 (D.C. Cir. 1959). Thus, the Court need not continue its discussion of the
judicial admission test outlined in Heritage Bank, 250 F.3d at 329, as the statements identified by
movants fail Heritage Bank’s third prong.
c. Inquiry into the Existence of an Adverse Legal Interest
In order for a case or controversy to be adversarial, the parties “must not desire . . . the
same result.” Moore v. Charlotte-Mecklenburg Bd. Of Ed., 402 U.S. 47–48 (1971). Adversity
of interest insures that the parties “will sharply define the issues.” Goosby v. Osser, 409 U.S.
512, 517 (1973). Mitchell has not conceded her position through judicial admission, and the
Court thus finds that an active case or controversy exists on the face of the pleadings.
However, movants additionally argue that no case or controversy exists because the
matter before the Court is feigned or collusive. See R. Doc. 118-1 at 7–9; R. Doc. 125-1 at 2–3.
Movants contend that Mitchell and Hood are in cahoots; the parties allegedly conspire to use this
Court as a charter for Mitchell’s discovery fishing expedition against movants. A feigned or
collusive lawsuit presents no Article III case or controversy. See Arizonans for Official English
v. Arizona, 520 U.S. 43, 71 (1997) (noting the lack of federal subject matter jurisdiction in
“friendly or feigned proceedings”). The use of this Court for a purpose besides the
compensation of the plaintiff demeans the integrity of the judicial branch and violates the rights
of non-parties. See Houston Bus. Journal, Inc. v. Office of Comptroller of Currency, 86 F.3d
1208, 1213 (D.C. Cir. 1996) (“The federal courts are not free-standing investigative bodies
whose coercive power may be brought to bear at will in demanding documents from others.”);
Kirkland v. New York State Dep’t of Correctional Services, No. 82 CIV. 0295, 1988 WL 108485,
at *3 (S.D.N.Y. Oct. 12, 1998). Thus, if movants are correct, dismissal is proper. See
Kirkland, 1988 WL at *3 (“[T]he court must dismiss a case where the cooperation of the plaintiff
and the defendant might adversely affect the rights of outsiders if the question of law is decided
in the manner that both of the parties desire.”).
Movants are correct to note that the relationship between Mitchell and Hood is somewhat
curious. It is unusual that Hood has failed to take actions such as filing a motion for summary
judgment or a motion to dismiss for lack of personal jurisdiction. It is also somewhat strange
that the witness and exhibit lists filed by Mitchell and Hood are identical. See R. Docs. 110,
111. Hood has gone so far as to aid Mitchell at times, offering an affidavit to support Mitchell’s
struggle with Trahan’s Motion to Strike Complaint Pursuant to Louisiana Code of Civil
Procedure Article 971. R. Doc. 53-1. But these strategic choices by Hood are not dispositive
on the issue of collusion. Mitchell points out that this might be an instance of comparative fault
involving a number of individuals, including Hood. The incentives created by a case of
comparative fault must be considered when analyzing a claim of collusive or feigned
Mitchell contends that she has been harmed by the mailing and distribution of a postcard
with inaccurate and/or insufficient personal information to approximately 3,000 residents of New
Orleans. R. Doc. 1. The name that appeared on this postcard was “B. Hood.” The address
that appeared on the postcard belonged to Hood. Hood has been sued. Hood alleges that he
was not responsible for the postcard. As it now stands, this case is at the discovery phase, and
the requirements of diversity jurisdiction are satisfied. See discussion infra, Part III.B.d.
Discovery is underway to determine if Hood was responsible for Mitchell’s identified injuries, in
whole or in part. Mitchell has a right to subpoena non-parties to the litigation for the purpose of
taking depositions. See Fed. R. Civ. P. 45. Non-parties may contest a subpoena pursuant to
Rule 45(c)(3)(a) or by attacking the Court’s subject matter jurisdiction, Catholic Conf., 487 U.S.
at 76. The latter method is somewhat atypical.
The Court finds that this may well be a case of comparative fault, and attributes the
oddball strategic choices of Hood to the incentives created by comparative fault. In a case of
comparative fault, defendants are interested in absolving themselves in whole or at least in part.
Shifting the blame to a potential codefendant is an intuitive strategy for accomplishing this goal.
A plaintiff in discovery is incentivized to take advantage of this “it wasn’t me!” tactic by
deposing the parties implicated by the defendant. Discovery will either identify the implicated
parties as plausibly at fault, or show the original defendant’s finger-pointing to be disingenuous.
Nothing about the strategic choice to investigate a non-party implicated by a defendant suggests
that a plaintiff has foregone his or her claim against the original defendant. Defendants such as
Hood remain on the hook for damages.
Thus, the Court cannot construe Mitchell’s exploration of Hood’s “it wasn’t me!” defense
as the absence of a case or controversy. Hood’s name and address remains on the postcard
which allegedly injured Mitchell. Mitchell has done nothing to withdraw that smoking gun
from the litigation. Thus, Mitchell and Hood remain adverse for purposes of the case at bar.
d. Inquiry into Amount in Controversy
As mentioned above, Trahan raises the issue of jurisdictional amount as a separate
challenge to this Court’s subject matter jurisdiction. When determining the amount in
controversy, the Fifth Circuit recognizes that “unless the law gives a different rule, the sum
claimed by the plaintiff controls if the claim is apparently made in good faith.” St. Paul
Reinsurance Co., Ltc. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998). In order to prove a
claim for a determinate amount of damages is not made in good faith, it must appear to a “legal
certainty” that the plaintiff cannot recover the amount alleged. See De Aguilar v. Boeing Co.,
47 F.3d 1404, 1409 (5th Cir. 1995) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303
U.S. 283, 288 (1938)). The Plaintiff’s burden “is to show by a preponderance of the evidence
that it does not appear to a legal certainty that their claim is really for less than the jurisdictional
amount.” Opelika Nursing Home, Inc. v. Richardson, 448 F.2d 658, 667 (5th Cir. 1971). “The
Court has great discretion in determining whether the jurisdictional amount has been satisfied.”
Foret v. Southern Farm Bureau Life Ins. Co., 918 F.2d 534, 537 (5th Cir. 1990).
Mitchell’s cited case law establishes that a recovery of $75,000 is plausible on these
facts. The Court finds the damages awards for defamation claims sufficiently analogous to
support diversity jurisdiction on the claims at issue. See e.g., College Network, Inc. v. Moore
Educ. Publrs., Inc., 378 Fed.Appx. 403 (5th Cir. May 12, 2010) (jury verdict of $150,000 for
reputation damages); Steed v. St. Paul United Methodist Church, 728 So.2d 931 (La.App. 2 Cir.
02/24/00) (jury verdict award of $90,000 in defamation claim). Thus, Mitchell has met her
For the foregoing reasons, IT IS ORDERED that Movant’s Motions to Dismiss for Lack
of Subject Matter Jurisdiction (R. Docs. 118, 121, 125, 128) are hereby DENIED.
IT IS FURTHER ORDERED that the stay on discovery and discovery proceedings
authorized by this Court’s November 25, 2015, Order, R. Doc. 138, is hereby LIFTED.
New Orleans, Louisiana this 2nd day of December, 2015.
UNITED STATES DISTRICT JUDGE
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