Derischebourg v. Clark et al

Filing 179

ORDER AND REASONS - IT IS ORDERED that plaintiff's 166 motion to file a third amended complaint is DENIED. The Constable and Cantrelle are deemed to have conclusively admitted that Cantrelle is an employee of the Constable. Neither defendant will be permitted to withdraw that admission. IT IS FURTHER ORDERED that plaintiff's 169 motion to take the deposition of the Reserve Deputy Constable's Association is GRANTED. Plaintiff may take the deposition within fourteen days of this order. The parties should notify the Court via telephone no later than March 2, 2017 if they cannot amicably schedule the deposition. Signed by Judge Lance M Africk. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALFRED DERISCHEBOURG

CIVIL ACTION

VERSUS

No. 15-1712

OFFICER CHRIS CLARK ET AL.

SECTION I

ORDER AND REASONS
Before the Court are (1) the motion1 by plaintiff to file a third amended
complaint and (2) the motion 2 by plaintiff to take the deposition of the Reserve Deputy
Constable’s Association.
Plaintiff’s motions are necessitated by the apparent eleventh hour disclosure
by the First City Court Constable (“Constable”) and David Cantrelle that Cantrelle
is not an employee of the Constable, but rather a member of the reserve deputy
division. That disclosure contradicts the Constable’s and Cantrelle’s joint answer
that he was, in fact, an employee of the Constable. 3 It also contradicts the Constable’s
and Cantrelle’s admissions in this matter. See R. Doc. No. 122. As U.S. Magistrate
Judge Wilkinson has already explained, neither Constable nor Cantrelle timely
responded to the plaintiff’s requests for admissions. R. Doc. No. 122. Therefore, the
requests for admission—which includes a request for an admission that Cantrelle

R. Doc. No. 166.
R. Doc. No. 169
3 R. Doc. No. 32, at 9 (“Defendants admit that Constable David Cantrell is an adult
citizen of the state of Louisiana and an employee of First City Court Constable.”).
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was employed by the Constable, R. Doc. No. 114-3, at 3—are deemed admitted by
operation of law. R. Doc. No. 122; see also Fed. R. Civ. P. 36(a)(3).
Defendants, for their part, did not file a written opposition to plaintiff’s
motions. Accordingly, in light of this Court’s prior warning that a failure to file a
timely opposition will result in the forfeiture of any arguments in opposition, R. Doc.
No. 167, at 2, this Court holds that Cantrelle and the Constable waived all arguments
in opposition to plaintiff’s motions. Because Cantrelle and the Constable waived their
oppositions to plaintiff’s motion, the only remaining questions concern the proper
remedy.
First, plaintiff asks for permission to take the deposition of the Reserve Deputy
Constable’s Association. Because the Association likely has discoverable information
relating to, among other things, Cantrelle’s training, supervision, communications,
and duties, the Court will grant permission for plaintiff to take the deposition of the
Reserve Deputy Constable’s Association.

The parties are urged to cooperate to

amicably schedule the deposition and avoid the need for further judicial intervention.
Second, plaintiff asks for this Court to either (1) deny Cantrelle and the
Constable the ability to withdraw the admission that Cantrelle is an employee of the
Constable or (2) grant permission for plaintiff to file a third amended complaint. This
Court takes the first path. The factual statement that Cantrelle is employed by the
Constable in their joint answer is binding and cannot now be abandoned. See, e.g.,
Johnson v. Houston’s Restaurant, Inc., 167 F. App’x 393, 395 (5th Cir. 2006) (noting
factual “assertions in pleadings are judicial admissions conclusively binding on the

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party that made them”). As such, because the Constable and Cantrelle will not be
permitted to argue that Cantrelle is not an employee of the Constable, there should
be no need for the plaintiff to file a third amended complaint.
Accordingly,
IT IS ORDERED that plaintiff’s motion to file a third amended complaint is
DENIED. The Constable and Cantrelle are deemed to have conclusively admitted
that Cantrelle is an employee of the Constable. Neither defendant will be permitted
to withdraw that admission.
IT IS FURTHER ORDERED that plaintiff’s motion to take the deposition of
the Reserve Deputy Constable’s Association is GRANTED. Plaintiff may take the
deposition within fourteen days of this order. The parties should notify the Court via
telephone no later than March 2, 2017 if they cannot amicably schedule the
deposition.
New Orleans, Louisiana, February 23, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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