Gilbert v. Cates et al

Filing 93

ORDER AND REASONS - IT IS ORDERED that Plaintiff's Motion for Reconsideration (Rec. Doc. 78 ) is DENIED; and the Motion to Set Status Hearing (Rec. Doc. 20 ) is DENIED AS MOOT. IT IS FURTHER ORDERED that ALL of Defendants' Motions to Dism iss (Rec. Docs. 3 , 5 , 6 , 11 , 22 , 24 , and 66 ) are GRANTED, and all claims are DISMISSED WITH PREJUDICE. Given Plaintiff's numerous opportunities to amend his Complaint, further leave to amend is futile. Signed by Judge Jane Triche Milazzo on 9/11/2018. (Reference: All Cases)(sa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DEAN GILBERT

CIVIL ACTION

VERSUS

NO: 17-4786

SIDNEY CATES, IV, ET AL.

SECTION: “H”(4)

ORDER AND REASONS
Before the Court are a Motion for Reconsideration (Doc. 78) and Motion
to Set Status Hearing (Doc. 20) filed by Plaintiff Dean Gilbert; and Motions to
Dismiss filed by Defendants Marlin Gusman (Doc. 3); Laurie Hendrickson
(Doc. 5); Sidney Cates, Laurie Hendrickson, and Michelle Mouton (Doc. 6);
Baldwin, Haspel, Burke & Mayer, LLC, Thomas Cortazzo, and Joel Mendler
(Doc. 11); Baldwin, Haspel, Burke & Mayer, LLC (Doc. 22), City of New
Orleans (Doc. 24); Dwight Gilbert (Doc. 29); and Debra Dave (Doc. 66).
For the following reasons, Plaintiff’s Motion for Reconsideration is
DENIED, and Plaintiff’s Motion for Status Hearing is DENIED AS MOOT.
All motions to dismiss are GRANTED.

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BACKGROUND
This action stems from litigation in state court over the succession of
Plaintiff’s mother, Bernadette Gaines Gilbert. 1 Plaintiff Dean Gilbert filed his
initial Complaint pro se in this Court on May 8, 2017, naming as defendants
Sidney Cates, the judge on the Orleans Parish Civil District Court that
presided over Plaintiff’s mother’s succession; Baldwin, Haspel, Burke &
Mayer, LLC (“Baldwin Haspel”), Thomas Cortazzo, and Joel Mendler, a law
firm and its attorneys that worked on the succession; 2 Dwight Gilbert,
Plaintiff’s brother; Marlin Gusman, the Orleans Parish Sheriff; Michelle
Mouton, Judge Cates’s law clerk; Laurie Hendrickson, Judge Cates’s court
reporter; and Orleans Parish (the “Lead Action”). 3
Bernadette Gilbert died intestate from lung cancer on December 11,
2011. 4 Before Bernadette died, Plaintiff spent years helping his parents
recover from losses they suffered during Hurricane Katrina. 5 But after
Bernadette died, Plaintiff’s brother, Defendant Dwight Gilbert, took Plaintiff’s
father, Dean Gilbert Sr., to Dwight’s home in Michigan. 6 Plaintiff alleges that
his father suffered from “significant cognitive impairments” while in Michigan,
and that Dwight brainwashed Dean Sr. into believing Plaintiff killed
Bernadette and was conspiring to kill Dean Sr. 7 Plaintiff further alleges while
his father was in Michigan, the Road Home program demanded that Plaintiff
open his mother’s succession in Louisiana to obtain funds to pay a contractor

1
2
3
4
5
6
7

See Doc. 1.
Plaintiff also named as a defendant Joseph Bonventure, another Baldwin Haspel attorney,
but he was dismissed after Plaintiff failed to effect service upon him. See Doc. 76.
Doc. 1.
Doc. 1 at 4.
Doc. 1 at 4.
Doc. 1 at 4.
Doc. 1 at 4.

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owed money by Plaintiff’s parents. 8 In response, Plaintiff opened the
succession through Duty Judge Robin Giarrusso in Civil District Court in
Orleans Parish and was appointed the succession’s administrator. 9
This saga really began when Judge Cates, who was the allotted judge as
the time Plaintiff originally opened his mother’s succession, granted a request
by Dwight to remove Plaintiff as the succession’s administrator. 10 This sparked
years of litigation in state court that ultimately resulted in the Fourth Circuit
Court of Appeal in Louisiana affirming the trial court’s actions. 11 Among the
actions affirmed was an incarceration order by Judge Cates sentencing
Plaintiff to 11 days in jail for contempt of court. 12
In his Complaint, Plaintiff took aim at Judge Cates, alleging that
“[t]hrough the use of his judicial office as an offensive weapon to retaliate
against [Plaintiff] and enrich his campaign patrons and friends, Judge Cates
conspired with Sherriff Gusman and others to violate [P]laintiff’s civil rights
by acting through an absence of jurisdiction.” 13 Plaintiff demands “judgment
against the defendants” and a permanent injunction preventing Judge Cates
from presiding over the succession of Plaintiff’s mother.
On October 12, 2017, Plaintiff filed a second action in state court naming
as defendants Sidney Cates, Baldwin Haspel, Debra Dave, and Dwight

Doc. 1 at 4.
Doc. 75 at 2.
10 See Doc. 75 at 2.
11 See Succession of Gilbert, 2016-0609 (La. App. 4 Cir. 11/8/17), writ denied, 2017-2181 (La.
4/6/18), 240 So. 3d 184, reconsideration denied, 2017-2181 (La. 6/1/18), 243 So. 3d 1065.
12 See id. Plaintiff claims he spent more than 11 days in jail. See Doc. 33-1 at 21–27, 62. This
allegation of over-incarceration serves as the basis for some of Plaintiff’s claims in his
proposed amended complaints.
13 Doc. 1 at 4.
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Gilbert. 14 The Petition asserts claims of legal malpractice, negligence, elder
abuse, identity theft, conversion, breach of fiduciary duty, intentional infliction
of emotional distress, invasion of privacy, “interference with prospective
economic advantage,” misrepresentation, fraud, abuse of process, breach of
trust, civil rights violations under 42 U.S.C. § 1983, and violations of Plaintiff’s
First, Fifth, Sixth, and Fourteenth Amendment rights. Defendant Baldwin
Haspel removed the case to this Court on the basis of federal question and
supplemental jurisdiction (the “Consolidated Action”). It was assigned a case
number of 17-12195 and was consolidated with the Lead Action on January 11,
2017. 15
Defendants Gusman and Hendrickson have filed separate motions to
dismiss Plaintiff’s Complaint in the Lead Action pursuant to Rule 12(b)(6) on
the grounds that Plaintiff’s Complaint fails to make any factual allegations
against them. 16 Defendants Cates, Mouton, and Hendrickson jointly filed a
motion to dismiss Plaintiff’s Complaint in the Lead Action on the grounds that
Plaintiff’s suit against them in their official capacities is barred by sovereign
immunity, that the Complaint fails to make any substantive factual allegations
against them, and that—to the extent Plaintiff’s Complaint is based on acts
they took in their judicial functions—Plaintiff’s claim is barred by absolute
judicial immunity. 17 Defendants Cortazzo, Mendler, and Baldwin Haspel
jointly filed a motion to dismiss Plaintiff’s Complaint in the Lead Action
pursuant to Rule 12(b)(6) on the grounds that Plaintiff’s Complaint fails to
make any factual allegations against them, especially the facts required to

Doc. 1-2, case no. 17-12195. Plaintiff’s Petition for Damages also named Capital One, N.A.
as a defendant, but Plaintiff’s claims against Capital One were dismissed pursuant to
Federal Rule of Civil Procedure 4(m) for failure to effect service upon it. See Doc. 59.
15 Doc. 23.
16 Docs. 3, 5.
17 Doc. 6.
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state a tort claim against the attorneys of a person’s legal adversary for actions
taken in their representation. 18 Defendant the City of New Orleans,
improperly named as Orleans Parish, filed a motion to dismiss Plaintiff’s
Complaint in the Lead Action pursuant to Rule 12(b)(6) on the grounds that
Plaintiff’s Complaint fails to make any specific factual allegations against it. 19
Plaintiff did not oppose any of those motions.
Defendant Baldwin Haspel filed a motion to dismiss Plaintiff’s Petition
for Damages in the Consolidated Action pursuant to Rule 12(b)(6) on the
grounds that Plaintiff’s Petition fails to make any factual allegations against
it, especially the facts required to state a tort claim against the attorneys of a
person’s legal adversary for actions taken in their representation. 20 Defendant
Dwight Gilbert filed a motion to dismiss Plaintiff’s complaints in both the Lead
Action and Consolidated Action on the grounds that Plaintiff failed to effect
service upon him and that Plaintiff’s complaints fail to state an actionable
claim against him. 21 Defendant Dave filed a motion to dismiss Plaintiff’s
Petition for Damages in the Consolidated Action on the grounds that Plaintiff
failed to timely effect service upon her pursuant to Rule 4(m) and that
Plaintiff’s Petition for Damages fails to state a claim against her. 22 Plaintiff
also did not oppose any of those motions.
On October 18, 2017, Plaintiff filed a motion for leave to amend his
Complaint. 23 The Magistrate Judge granted Plaintiff’s motion and gave
Plaintiff until November 12, 2017, to file an amended complaint. 24 The

Doc. 11.
Doc. 24.
20 Doc. 22.
21 Doc. 29.
22 Doc. 66.
23 Doc. 12.
24 Doc. 13.
18
19

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Magistrate Judge subsequently extended that deadline to November 20, 2017,
and then to November 27, 2017. 25 Plaintiff failed to file any amended complaint
until February 12, 2018, when Plaintiff filed a motion for leave to supplement
his original motion to amend his complaint. 26 Attached to this motion was an
82-page proposed pleading (“First Amended Complaint”). 27 While that motion
was pending, on June 1, 2018, Plaintiff filed a new motion for leave to file
another amended complaint (“Second Amended Complaint”). 28 Then, on June
29, 2018, Plaintiff filed a third motion for leave to file another amended
complaint (“Third Amended Complaint”). 29 Taken together, these proposed
amendments sought to add numerous new defendants and claims. 30
On July 13, 2018, the Magistrate Judge denied Plaintiff’s motions to file
the First Amended Complaint and Second Amended Complaint (“First Order
and Reasons”). 31 On July 24, 2018, the Magistrate Judge denied Plaintiff’s
motion to file a Third Amended Complaint (“Second Order and Reasons”). 32 In
examining the multitude of claims that Plaintiff asserted, the Magistrate
Judge concluded that the amendments were futile because Plaintiff’s proposed
complaints failed to state actionable claims.
Plaintiff filed a Motion for Reconsideration on July 19, 2018, asking the
Court to review the orders of the Magistrate Judge denying Plaintiff’s motions
for leave to file the First Amended Complaint and Second Amended
Complaint. 33 At Plaintiff’s request, the Court granted Plaintiff two extensions

Docs. 14, 16.
Doc. 33.
27 Doc. 33.
28 Doc. 65
29 Doc. 65.
30 See Docs. 33-1, 38, 65, 72.
31 Doc. 75.
32 Doc. 83.
33 Doc. 78.
25
26

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of time to file his memorandum in support of the motion. 34 The Court also
instructed Plaintiff to include in that memorandum any objections to the
Magistrate Judge’s denial of Plaintiff’s motion for leave to file his Third
Amended Complaint as well. The Court first will address Plaintiff’s Motion for
Reconsideration and then Defendants’ motions to dismiss.
LEGAL STANDARD
I.

Motion for Reconsideration
Although titled as a “Motion for Reconsideration,” Plaintiff’s request for

review of the Magistrate Judge’s order is more properly treated as a Motion for
Leave to Appeal a Magistrate Judge’s order. With the consent of the presiding
district judge, a magistrate judge may adjudicate non-dispositive pre-trial
motions. 35 A magistrate judge is afforded broad discretion in resolving such
motions. 36 A party aggrieved by the magistrate judge’s ruling may appeal to
the district judge within fourteen days after service of the ruling. 37 The district
judge may reverse only upon a finding that the ruling is “clearly erroneous or
contrary to law.” 38 To meet this high standard, the district judge must be “left
with a definite and firm conviction that a mistake has been committed.” 39
II.

Motions to Dismiss
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead

enough facts “to state a claim to relief that is plausible on its face.” 40 A claim

Docs. 79, 87.
28 U.S.C. § 636(b)(1)(A).
36 McCallon v. BP Am. Prod. Co., Nos. 05–0597, 05–0700, 2006 WL 3246886, at *2 (E.D. La.
Nov. 8, 2006).
37 Fed. R. Civ. P. 72(a).
38 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a).
39 Norton v. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997).
40 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
34
35

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is “plausible on its face” when the pleaded facts allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.” 41
A court must accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in the plaintiff’s favor.” 42 The Court need not,
however, accept as true legal conclusions couched as factual allegations. 43
To be legally sufficient, a complaint must establish more than a “sheer
possibility” that the plaintiff’s claims are true. 44 “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action’’’
will not suffice. 45 Rather, the complaint must contain enough factual
allegations to raise a reasonable expectation that discovery will reveal evidence
of each element of the plaintiff’s claim. 46
LAW AND ANALYSIS
I.

Plaintiff’s Motion for Reconsideration
Plaintiff asks this Court to review the rulings of the Magistrate Judge

denying Plaintiff leave to amend his Complaint. Having carefully reviewed
Plaintiff’s proposed amended complaints, the Magistrate Judge’s rulings on
Plaintiff’s requests to amend his Complaint, and Plaintiff’s memorandum
supporting his Motion for Reconsideration, this Court finds that Plaintiff has
failed to identify any clearly erroneous action by the Magistrate Judge that
materially affects the outcome of this litigation. 47 This Court, therefore,
Id.
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
43 Iqbal, 556 U.S. at 678.
44 Id.
45 Id. at 678 (quoting Twombly, 550 U.S. at 555).
46 Lormand, 565 F.3d at 255–57.
47 This Court recognizes that portions of the Magistrate Judge’s First Order and Reasons
were clearly erroneous. But those errors were harmless because the outcome remains the
same. First, any claims relating to Plaintiff’s alleged over-incarceration were not, in fact,
prescribed. Because Plaintiff could not have had reason to know that he was held beyond
41
42

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AFFIRMS the Magistrate Judge’s rulings denying Plaintiff leave to amend his
Complaint. Plaintiff’s Motion for Reconsideration is DENIED.
II.

Motions to Dismiss
Plaintiff submitted no opposition to any of the motions to dismiss other

than the proposed amended complaints and the memorandum in support of his
motion for reconsideration of the Magistrate Judge’s orders denying his
request for leave to amend his complaint.
Defendants Cates, Mouton, Hendrickson, Cortazzo, Mendler, Baldwin
Haspel, City of New Orleans, and Dwight Gilbert all move to dismiss Plaintiff’s
Complaint on the grounds that it fails to make specific factual allegations

the authority of the incarceration order until it happened, the harm would not have
happened until after May 8, 2016. Plaintiff filed his Complaint on May 8, 2017, which was
within the relevant prescriptive period of one year applicable to those claims. See Wallace
v. Kato, 549 U.S. 384, 387 (2007) (applying state law personal injury prescriptive period to
federal § 1983 claims); LA. CIV. CODE art. 3492 (providing for one-year prescriptive period
for personal injury claims); Martinez v. Hidalgo Cty., Texas, 727 F. App’x 77, 78 (5th Cir.
2018) (“Under federal law, a cause of action accrues when the plaintiff knows or has reason
to know of the injury which is the basis of the action.”) (quoting Piotrowski v. City of
Houston, 237 F.3d 567, 576 (5th Cir. 2001)). Nevertheless, Plaintiff failed to allege
sufficient facts in his amended complaints to support any claims stemming from the alleged
over-incarceration. As such, those proposed amendments remain futile. Second, the claims
against Baldwin Haspel, Clark Hill, and their lawyers are not legal malpractice claims
because Plaintiff failed to allege that they worked on his behalf. See Teague v. St. Paul Fire
& Marine Ins. Co., 974 So. 2d 1266, 1272 (La. 2008) (explaining that the existence of an
attorney-client relationship is an element of the claim of legal malpractice). The three-year
peremptive period of Louisiana Revised Statutes § 9:5605 applies only to legal malpractice,
not any action against an attorney. Davis v. Parker, 58 F.3d 183, 188 (5th Cir. 1995).
Therefore, Plaintiff’s proposed claims against the lawyers are not perempted. Nonetheless,
the claims are prescribed under the general one-year prescriptive period for delictual
actions because the underlying conduct did not occur within a year of when Plaintiff filed
his Complaint. See LA. CIV. CODE art. 3492. Third, and finally, the Magistrate Judge held
that the claims against Mouton in her individual capacity were prescribed, citing the wrong
date for the relevant contempt hearing (the hearing took place on May 5, 2016, not April
29, 2016). But the prescription issue is irrelevant: Plaintiff’s claims against Mouton in her
individual capacity are barred by absolute judicial immunity. See Turner v. Houma Mun.
Fire & Police Civil Serv. Bd., 229 F.3d 478, 486 (5th Cir. 2000) (noting that absolute judicial
immunity bars suits against judges—and their employees who act in a way that is integral
to the judicial function—in their individual capacity).

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against them. Plaintiff’s Complaint recites some background facts but is
entirely devoid of factual allegations bearing on the claims that it lists.
Accordingly, Defendants’ motions to dismiss Plaintiff’s Complaint in the Lead
Action are GRANTED. The Court does not reach Defendants’ other arguments.
Defendants Baldwin Haspel, Dwight Gilbert, and Dave all move to
dismiss Plaintiff’s Petition for Damages in the Consolidated Action on the
grounds that it fails to allege any particular facts against them. Plaintiff’s
Petition for Damages makes no factual allegations whatsoever. Accordingly,
Defendants’ motions to dismiss Plaintiff’s Petition for Damages in the
Consolidated Action are GRANTED. The Court does not reach Defendants’
other arguments.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Reconsideration is
DENIED, Plaintiff’s Motion for Status hearing is DENIED AS MOOT, and
Defendants’ motions to dismiss are GRANTED. All claims are DISMISSED
WITH PREJUDICE. Given Plaintiff’s numerous opportunities to amend his
Complaint, further leave to amend is futile.

New Orleans, Louisiana this 11th day of September, 2018.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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