Spotted Cat, LLC v. Bass et al
Filing
106
ORDER AND REASONS denying 36 Motion to Dismiss for Failure to State a Claim; granting in part 39 Motion for Summary Judgment; AND granting 77 , 78 Motions in Limine. The only claim remaining for trial is Plaintiff's delictual fraud claim. Signed by Judge Jane Triche Milazzo. (ecm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SPOTTED CAT, LLC
CIVIL ACTION
VERSUS
NO: 13–6100
MICAH BASS, ET AL
SECTION: "H"(5)
ORDER AND REASONS
Before the Court is a Motion to Dismiss (Doc. 36), a Motion for Summary
Judgment (Doc. 39), and two Motions in limine (Docs. 77 & 78). For the
following reasons, the Motion to Dismiss is DENIED, the Motion for Summary
Judgment is GRANTED IN PART, and the Motions in limine are GRANTED.
BACKGROUND1
This action was originally filed in Louisiana state court. Shortly after it
was filed, Defendant Micah Bass removed the action to this Court, invoking the
1
The facts contained in this section are drawn primarily from Plaintiff's complaint.
1
Court's diversity jurisdiction.
Plaintiff Spotted Cat, LLC operates a restaurant and catering facility at
the Galleria office building in Metairie, Louisiana. Pursuant to its lease, Spotted
Cat is provided unfettered access to the facility (24 hours a day, 7 days a week).
In preparation for Hurricane Isaac, Spotted Cat secured equipment, including
generators and dry ice, in an effort to preserve its food stores in the event of a
power outage. After the Galleria lost power, Roderick Patrick, on behalf of
Spotted Cat, attempted to access the facility to deploy the dry ice and start the
generators.
Plaintiff claims that Defendant prevented Mr. Patrick from
accessing the building by falsely representing that he was an agent of the
Galleria and that he was under instructions to keep Plaintiff out of the building.
As a result of Defendant's false representations, Plaintiff contends that it lost
over $20,000 of food and incurred significant costs in cleaning up the restaurant.
Defendant now moves this Court to dismiss Plaintiff's fraud claim because it is
not pled with the specificity required by Rule 9(b), to grant summary judgment
on all of Plaintiff's claims, and to exclude certain evidence at trial.
LAW AND ANALYSIS
I. Motion to Dismiss
Defendant filed this Motion on July 22, 2014, nine months after his answer
was filed and after the close of discovery. Rule 12(b)(6) motions must ordinarily
be filed prior to an answer.2 Nonetheless, the Fifth Circuit has held that a late2
Fed. R. Civ. Proc. 12(b) ("A motion asserting any of these defenses must be made
before pleading if a responsive pleading is allowed.").
2
filed 12(b)(6) motion may be considered by the Court.3 In such a circumstance,
however, the Court must treat the motion as one for judgment on the pleadings
under Rule 12(c).4 Rule 12(c) provides that a motion for judgment on the
pleadings may be filed "[a]fter the pleadings are closed—but early enough not
to delay trial."
The Court finds that the Motion is untimely filed. If the Court granted the
Motion, it would be required to permit Plaintiff an opportunity to amend the
petition and would necessarily delay trial.5 Therefore, the Motion is denied.6
II. Motion for Summary Judgment
Summary judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law."7 A genuine issue of fact exists only
"if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party."8
In determining whether the movant is entitled to summary judgment, the
Court views facts in the light most favorable to the non-movant and draws all
3
Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999).
4
Id.
5
Hart v. Bayer Corp., 199 F.3d 239, 248 n. 6 (5th Cir. 2000) (Holding that courts should
ordinarily grant a plaintiff at least one opportunity to amend before dismissing a complaint for
failure to state a claim.).
6
The Court also notes that it would not be inclined to grant the Motion on the merits
given its ruling today that Plaintiff's fraud claim survives summary judgment.
7
Fed. R. Civ. P. 56(c) (2012).
8
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
3
reasonable inferences in his favor.9 "If the moving party meets the initial burden
of showing that there is no genuine issue of material fact, the burden shifts to
the non-moving party to produce evidence or designate specific facts showing the
existence of a genuine issue for trial."10 Summary judgment is appropriate if the
non-movant "fails to make a showing sufficient to establish the existence of an
element essential to that party’s case."11 "In response to a properly supported
motion for summary judgment, the nonmovant must identify specific evidence
in the record and articulate the manner in which that evidence supports that
party’s claim, and such evidence must be sufficient to sustain a finding in favor
of the nonmovant on all issues as to which the nonmovant would bear the
burden of proof at trial."12 "We do not . . . in the absence of any proof, assume
that the nonmoving party could or would prove the necessary facts."13
Additionally, "[t]he mere argued existence of a factual dispute will not defeat an
otherwise properly supported motion."14
Defendant seeks summary judgment on all of Plaintiff's claims. Defendant
identifies three possible claims brought by Plaintiff: (1) a contractual fraud
claim; (2) a delictual fraud claim; and (3) a negligence claim. Plaintiff expressly
9
Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528 (5th Cir. 1997).
10
Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995).
11
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
12
John v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th
Cir. 2004).
13
Badon v. R J R Nabisco, Inc., 224 F.3d 382, 394 (5th Cir. 2000).
14
Boudreaux v. Banctec, Inc., 366 F. Supp. 2d 425, 430 (E.D. La. 2005).
4
disclaims that it is bringing a contractual fraud or a negligence claim.15 The
Court finds that this concession is well placed. There is no evidence that
Plaintiff and Defendant entered into a contract as is required to support a
contractual fraud claim.16 Additionally, there are no allegations in the petition,
or evidence in the record, that support a negligence claim. Moreover, Plaintiff
has not identified any duty owed to it by Defendant or explained how that duty
was breached. Therefore, to the extent that the petition attempts to set forth
negligence or contractual fraud claims, those claims are dismissed.
Defendant also moves for summary judgment on Plaintiff's delictual fraud
claim. To prevail on a claim for delictual fraud, Plaintiff must prove: (1) a
misrepresentation of a material fact; (2) made with intent to deceive; and (3)
causing justifiable reliance with resultant injury.17
This case involves a single incident to which there were only two
witnesses, Mr. Patrick and Defendant. Plaintiff, in opposition to the summary
judgment, attached an affidavit setting forth Mr. Patrick's version of events. Mr.
Patrick alleges that Plaintiff has a lease with the Galleria that affords it access
to the office building 24 hours a day, 7 days a week. Plaintiff has provided a
copy of the lease agreement, which explicitly states that "[n]ot withstanding
anything to the contrary contained in this lease . . . Tenant shall have access to
the food court and Its Premises 24 hours per day, 7 days per week." Mr. Patrick
alleges that, in August of 2012, he made preparations for a possible loss of power
15
R. Doc. 49, p. 9.
16
See Shelton v. Standard/700 Associates, 798 So. 2d 60, 64 (La. 2001).
17
Kadlec Med. Ctr. v. Lakeview Anesthesia Assoc., 527 F.3d 412, 418 (5th Cir. 2008).
5
associated with Hurricane Isaac. After the power went out, Mr. Patrick alleges
that he went to the office building to take actions necessary to prevent food
spoilage. These facts appear to be relatively undisputed.
Mr. Patrick also contends that, when he arrived at the Galleria, Defendant
physically prevented Mr. Patrick from entering the building. Mr. Patrick recalls
that Defendant insisted that he was an agent of the Galleria, that he had been
instructed to deny Mr. Patrick access to the building, and that he was not
concerned with the provisions of Plaintiff's lease agreement. Mr. Patrick alleges
that Defendant actually had no authority to act on behalf of the Galleria.
Plaintiff argues that Defendant made this false statement with the intent to
deceive Mr. Patrick into believing that Defendant was an agent of the Galleria.
Mr. Patrick further alleges that he believed Defendant was an agent of the
Galleria and that he reluctantly ceased attempts to access the building as a
result of Defendant's statements. Plaintiff alleges that, due to Mr. Patrick's
inability to enter the building, he was unable to protect Plaintiff's food stores
from spoilage. Viewing this evidence in the light most favorable to Plaintiff, the
Court finds that a jury could conclude that Defendant is liable for fraud.
To be sure, Defendant has marshaled substantial evidence indicating that
the office building was justifiably closed and that Defendant did nothing more
than apprise Mr. Patrick of that fact.
This evidence, however, merely
demonstrates the existence of a genuine factual dispute as to the elements of
Plaintiff's claim. This dispute must be resolved by the jury, not the Court.
Therefore, the Motion for Summary Judgment is denied as to Plaintiff's fraud
6
claim.
III. Motions in limine
Defendant moves the Court to strike a number of Plaintiff's witnesses and
exhibits. In addition, Defendant requests that the Court strike Plaintiff's
oppositions to the Motions as untimely. The Court will briefly address the
timeliness issue before proceeding to the merits.
On December 11, 2013, the Court issued a scheduling order, which
provided that "[a]ll other motions in limine shall be filed by SEPTEMBER 4,
2014 and responses thereto shall be filed by SEPTEMBER 9, 2014." Defendant
timely filed the instant Motions on September 4, 2014, yet Plaintiff did not file
a response until September 23, 2014. Defendant correctly notes that this is not
the first time Plaintiff has missed a deadline imposed by the Court. However,
with regard to the current Motions, the Court does note that the Motions were
set for submission on October 1, 2014.
Under the local rules, Plaintiff's
oppositions would not have been due until September 23, 2014.18 While Plaintiff
was nonetheless bound by the provisions of the scheduling order, the Court
elects to consider Plaintiff's arguments on the merits despite the untimely
oppositions.
Defendant first moves to exclude three witnesses identified by Plaintiff (1)
"Andrew (unknown last name) employee of Galleria," (2) "Steve (unknown last
name) employee of Galleria," and (3) "Unknown black female guard." Plaintiff
has been unable to identify these individuals with any specificity nor has
18
L.R. 7.5.
7
Plaintiff attempted to articulate to the Court how the testimony of these
unidentified witnesses is relevant. Indeed, Plaintiff's responses to the Motions
in limine offer no arguments in opposition to the exclusion of the witnesses.
Therefore, the Motion is granted and the witnesses will not be permitted to
testify at trial.
Defendant next moves to exclude several items identified in Plaintiff's
exhibit list (Doc. 31). These items fit into five categories: (1) Defendant's
criminal records; (2) documents relating to various claims that Defendant is a
thief and/or con artist; (3) police reports; (4) documents relating to Defendant's
prior businesses; and (5) items pertaining to Plaintiff's alleged damages. The
Court will address the admissibility of each category of items in turn.
(1) Defendant's Criminal Records
Plaintiff's exhibit list includes "Micah Bass’ criminal records including
arrest warrant for failure to appear."
Defendant moves to exclude these
documents because they were not produced in discovery. Plaintiff argues that
Defendant withheld these documents, thus preventing Plaintiff from producing
them. This argument is misplaced. These documents (if they exist) are public
record and are not solely in the possession of Defendant. Plaintiff had every
opportunity to request these documents from the appropriate agencies but failed
to do so. Additionally, this Court admonishes Plaintiff to review Federal Rule
of Evidence 609 which generally permits an attorney to introduce evidence of a
8
witness's felony convictions during the preceding ten years.19 The Court also
notes that the documents provided by Plaintiff evidence a misdemeanor
conviction. The Court grants Defendant's request to exclude the documents.
(2) Documents Relating to Claims that Defendant is a Thief and Con Artist
Plaintiff seeks to introduce a printout from a private website that allegedly
demonstrates that Defendant is "a thief and a con artist." This printout contains
comments from several unidentified individuals who assert negative allegations
regarding Defendant's character. The printout and the comments are clearly
hearsay, and Plaintiff has failed to identify any exception to the hearsay rule
that would render it admissible.
Moreover, the comments contain character
evidence inadmissible under Rule 404(B). Therefore, the Court excludes these
items.
(3) Police Reports
Plaintiff's exhibit list includes "Police Reports relating to Micah Bass."
Defendant moves to exclude these documents on several grounds. The Court
grants Defendant's request to exclude these documents because Plaintiff has not
produced these documents in discovery; nor has Plaintiff articulated to the Court
how these documents are relevant. Moreover, the Court finds that these reports
would constitute inadmissible Rule 404(B) evidence.
(4) Documents Relating to Defendant's Prior Businesses
19
The Court cautions counsel that only convictions are admissible under 609, arrests
are not. See United States v. Parker, 133 F.3d 322, 327 (5th Cir. 1998). Furthermore, only the
fact of the conviction, the name of the crime convicted of, and the time and place of the
conviction are admissible. 1 McCormick On Evid. § 42 (7th ed.) (collecting cases).
9
Defendant moves to exclude any evidence of his prior businesses. Plaintiff
has not produced any evidence in discovery related to Defendant's prior
businesses. Plaintiff has, however, attached several documents to its opposition
which it claims support an allegation that Defendant has engaged in fraudulent
activity in the past. The Court excludes all evidence attached to Plaintiff's
Opposition and all evidence regarding Defendant's former businesses because
it was not produced in discovery.20
(5) Items Pertaining to Plaintiff's Damages
Defendant seeks to exclude various documents relating to Plaintiff's
damages. These items include bills for food, photos of food, and receipts for
various purchases. Plaintiff did not produce any of these items in discovery and
they are, therefore, excluded from evidence at trial.
Finally, in light of the foregoing, the Court strongly cautions Counsel to
familiarize themselves with Rules of Evidence 404(B) and 609. Furthermore,
any party seeking to introduce evidence which implicates either rule must notify
the Court outside the presence of the jury and obtain a ruling on its admissibility
before attempting to introduce the evidence.
20
The Court also has serious doubts as to whether the evidence is admissible under
Rule 404(B).
10
CONCLUSION
For the foregoing reasons, the Motion to Dismiss is DENIED, the Motion
for Summary Judgment is GRANTED IN PART and the Motions in limine are
GRANTED. The only claim remaining for trial is Plaintiff's delictual fraud
claim.
New Orleans, Louisiana, this 14th day of October, 2014.
__________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?