Pitre v. Epps et al

Filing 33

ORDER AND REASONS denying 15 Motion to Dismiss for Failure to State a Claim. Signed by Judge Carl Barbier on 1/23/2019. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ALGERNON M. PITRE

CIVIL ACTION

VERSUS

NO: 18-1562

MICHAEL ELLIOTT EPPS AND
THOMAS COBB

SECTION: “J”(1)

ORDER AND REASONS
Before the Court is a Motion to Dismiss (Rec. Doc. 15) filed by
Plaintiff/Counter-Defendant, Algernon Pitre (“Plaintiff”), an opposition thereto (Rec.
Doc. 17) filed by Defendant/Counter-Plaintiff, Michael Epps (“Defendant”), and
Plaintiff’s reply (Rec. Doc. 22). Having considered the motion and legal memoranda,
the record, and the applicable law, the Court finds that the motion should be
DENIED.
FACTS AND PROCEDURAL HISTORY
This litigation arises from an altercation between Plaintiff and Defendant that
occurred at Harrah’s Casino in New Orleans, Louisiana on February 18, 2017. (Rec.
Doc. 1). Plaintiff alleges that Defendant punched him three times with a closed fist
after Plaintiff approached Defendant to have “a brief, casual conversation.” (Rec. Doc.
1 at 2). Plaintiff states that Defendant’s bodyguard, Cobb, then “rushed in and
repeatedly punched [Plaintiff] multiple times leaving him dazed and injured.” (Rec.
Doc. 1 at 2). Defendant and Cobb were arrested after leaving the scene, and

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Defendant pleaded no contest to battery under Section 54-96 of the New Orleans Code
of Ordinances on August 24, 2017. (Rec. Doc. 1 at 2). Plaintiff alleges that he “did
nothing to provoke or cause [Defendant] and Cobb to act in such an excessive and
violent manner.” (Rec. Doc. 1 at 2). Plaintiff filed suit against Defendant and Cobb in
this Court on February 14, 2018. (Rec. Doc. 1).
In his answer, Defendant denies the allegations in Plaintiff’s complaint and
asserts a counterclaim against Plaintiff pursuant to Rule 13 of the Federal Rules of
Civil Procedure. (Rec. Doc. 4). Defendant alleges that on February 18, 2017, Plaintiff
“physically accosted [Defendant] by reaching out and making unwanted physical
contact with him” at Harrah’s Casino. (Rec. Doc. 4 at 11). Defendant asserts that he
removed Plaintiff’s hand from his person, but Plaintiff persisted and exchanged words
with Defendant “while simultaneously stepping into [Defendant] such that their
torsos touched.” (Rec. Doc. 4 at 11). This conduct led Defendant to believe that
“escalating physical force from [Plaintiff] was imminent and the use of force was
reasonable and apparently necessary to prevent the continuing and escalating
assault and battery against [Defendant’s] person.” (Rec. Doc. 4 at 11). Accordingly,
Defendant argues that Louisiana Revised Statute 14:19 grants him immunity from
civil liability. (Rec. Doc. 4 at 11). Defendant seeks to recover from Plaintiff all
statutorily-authorized damages. (Rec. Doc. 4 at 11-12).
PARTIES’ ARGUMENTS
Plaintiff argues that Defendant’s counterclaim should be dismissed under Rule
12(b)(6) on two grounds. (Rec. Doc. 15). First, Plaintiff asserts that Defendant’s plea
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of nolo contendere to the charge of battery in New Orleans Municipal Court is an
admission of guilt that precludes Defendant from maintaining an action against
Plaintiff in the instant action. (Rec. Doc. 15-1 at 1, 3). Specifically, Plaintiff asks the
Court to apply the doctrine of judicial estoppel to prevent Defendant from
maintaining that Plaintiff committed assault and battery upon Defendant and that
Defendant was merely acting in self-defense. (Rec. Doc. 15-1 at 4). Plaintiff alleges
that permitting Defendant to proceed with a counterclaim that stands in “stark
contrast” to the nolo contendere claim would undermine and manipulate the judicial
process. (Rec. Doc. 15-1 at 5).
Second, Plaintiff argues that Defendant cannot rely on Louisiana Revised
Statute 14:19 to support his “vicious attack” on Plaintiff because Defendant’s use of
force was not reasonable and apparently necessary to prevent a forcible offense
against Defendant’s person. (Rec. Doc. 15-1 at 1). Plaintiff alleges that because
Defendant was the aggressor and makes no assertion that he withdrew from the
conflict, Louisiana Revised Statute 14:21 prevents him from maintaining a
counterclaim against Plaintiff. (Rec. Doc. 15-1 at 6).
Defendant argues in opposition that Plaintiff’s motion to dismiss should be
denied because Defendant has stated a claim upon which relief can be granted. (Rec.
Doc. 17 at 1). Defendant asserts that he has demonstrated his entitlement to recovery
under Louisiana Revised Statute 9:2800.19 because his counterclaim contains
sufficient facts to show that his use of force against Plaintiff was reasonable and
apparently necessary to prevent a forcible offense against Defendant in accordance

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with Louisiana Revised Statute 14:19. (Rec. Doc. 17 at 4-5). Defendant notes that
Plaintiff’s argument regarding Defendant’s failure to retreat relates to the weighing
of factual assertions and is, therefore, inappropriate under Rule 12(b)(6). (Rec. Doc.
17 at 5).
Defendant also argues that Plaintiff is not entitled to summary judgment in
the event this Court looks beyond the pleadings and accepts Plaintiff’s
unsubstantiated assertion that Defendant pleaded nolo contendere to battery in
another court. (Rec. Doc. 17 at 5). Defendant contends that Federal Rule of Evidence
410 precludes Plaintiff’s argument that Defendant’s nolo contendere plea prohibits
Defendant from asserting his counterclaim in the instant action. (Rec. Doc. 17 at 67).
Plaintiff raises two arguments in reply. (Rec. Doc. 22). First, Plaintiff re-urges
the Court to dismiss Defendant’s counterclaim because it is neither accurate nor
plausible to raise a self-defense argument. (Rec. Doc. 22 at 2). Plaintiff essentially
argues that the facts alleged by Defendant are false. (Rec. Doc. 22 at 2-3). Specifically,
Plaintiff asserts that he neither assaulted Defendant when he touched him on the
shoulder nor did he initiate further bodily contact with Defendant, and Defendant
was the aggressor. (Rec. Doc. 22 at 2). In light of this, Plaintiff argues that
Defendant’s use of force was not reasonable and apparently necessary. (Rec. Doc. 22
at 3).
Second, Plaintiff argues that this Court has authority to take judicial notice of
Defendant’s plea of nolo contendere under Rule 12(b)(6). (Rec. Doc. 22 at 4). Plaintiff

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contends that the Court can consider the plea without converting the instant motion
into a motion for summary judgment because courts deciding 12(b)(6) motions may
take judicial notice of matters of public record. (Rec. Doc. 22 at 4-5). Accordingly,
Plaintiff urges the Court to employ the doctrine of judicial estoppel and dismiss the
counterclaim at issue. (Rec. Doc. 22 at 5).
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint must contain “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). The complaint must “give the defendant fair notice of what the
claim is and the grounds upon which it rests.” Dura Pharm., Inc. v. Broudo, 544 U.S.
336, 346 (2005). The allegations “must be simple, concise, and direct.” Fed. R. Civ. P.
8(d)(1).
“Under Rule 12(b)(6), a claim may be dismissed when a plaintiff fails to allege
any set of facts in support of his claim which would entitle him to relief.” Taylor v.
Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing McConathy v. Dr.
Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)). To survive a Rule 12(b)(6)
motion to dismiss, the plaintiff must plead enough facts to “state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the
plaintiff pleads facts that allow the court to “draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. A court must accept all wellpleaded facts as true and must draw all reasonable inferences in favor of the plaintiff.
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Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009); Baker v. Putnal,
75 F.3d 190, 196 (5th Cir. 1996). However, the court is not bound to accept as true
legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. “[C]onclusory
allegations or legal conclusions masquerading as factual conclusions will not suffice
to prevent a motion to dismiss.” Taylor, 296 F.3d at 378.
DISCUSSION
I.

Nolo Contendere Plea
A court generally may not look beyond the pleadings on a Rule 12(b)(6) review.

McCartney v. First City Bank, 970 F.2d 45, 47 (5th Cir. 1992). However, the court
may consider the complaint and documents attached thereto, documents attached to
the motion to dismiss to which the complaint refers and which are central to the
plaintiff’s claims, and matters of public record. Lone Star Fund V (U.S.), LP v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010); Jefferson v. Lead Industries
Ass'n, Inc., 106 F.3d 1245 (5th Cir. 1997); Clark v. Lafayette Police Dep't, No. 6:18CV-0058, 2018 WL 3602974, at *3 (W.D. La. July 11, 2018), report and
recommendation adopted, No. 6:18-CV-00058, 2018 WL 3596104 (W.D. La. July 26,
2018). “Taking judicial notice of public records directly relevant to the issue in dispute
is proper on a Rule 12(b)(6) review and does ‘not transform the motion into one for
summary judgment.’” Ricardo v. Bank of New York Mellon, 2017 WL 3424975, at *3
(S.D. Tex., 2017) quoting Funk v. Stryker Corp., 631 F.3d 777, 780 (5th Cir. 2011); see
also Norris v. Hearst Tr., 500 F.3d 454, 461 (5th Cir. 2007) (“[I]t is clearly proper in
deciding a 12(b)(6) motion to take judicial notice of matters of public record.”).
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Based on the foregoing, this Court may consider Defendant’s plea of no contest
to misdemeanor battery in deciding the instant motion to dismiss. Nevertheless, the
Court rejects Plaintiff’s argument that Defendant’s nolo contendere plea in New
Orleans Municipal Court is an admission of guilt that precludes Defendant from
maintaining the counterclaim at issue.
Federal Rule of Evidence 410 renders certain evidence of criminal history—
including a nolo contendere plea—inadmissible against the defendant who made the
plea in either a civil or a criminal case. Fed. R. Evid. 410(a). The Fifth Circuit has
held that allowing a plea of nolo contendere is intended to permit a defendant to
accept a judgment of conviction in a criminal action while preserving his right to deny
guilt in a subsequent proceeding. United States v. Williams, 642 F.2d 136, 139 (5th
Cir. 1981) (citing Advisory Committee Note to Rule 410; 10 Moore's Federal Practice
§ 410.01(6) at IV-189 (1979 ed.)). “Nolo pleas create a significant incentive for the
defendant to terminate the pending litigation in order to avoid admitting guilt for
subsequent litigation.” Id. The Fifth Circuit indicated in United States v. Williams
that Rule 410’s prohibition against allowing the introduction of a plea of nolo
contendere against the defendant who made the plea is intended to further this
objective and encourage “disposition of criminal cases by compromise.” Id.
Like a guilty plea, a plea of nolo contendere shortens trial procedure by barring
the admission of additional evidence and enabling the court to enter a conviction
based solely on the plea. Fisher v. Wainwright, 584 F.2d 691, 693 (5th Cir. 1978); see
generally 1 C. Wright, Federal Practice and Procedure: Criminal s 177 (1969). “It is

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not, however, an admission of guilt. The nolo plea is a statement that the accused is
unwilling to contest the case against him. Because of this distinction, the plea of nolo
contendere may not be used against the defendant in subsequent civil litigation based
on the same acts.” Id. Accordingly, the Court finds that Defendant’s nolo contendere
plea may not be used by Plaintiff to prevent Defendant from asserting a counterclaim
in the matter presently before this Court.
II.

Failure to State a Claim
The Court likewise rejects Plaintiff’s argument that his 12(b)(6) motion to

dismiss should be granted because Defendant has failed to state a claim. Defendant
bases his counterclaim on Louisiana Revised Statute 9:2800.19, which provides:
A.
A person who uses reasonable and apparently necessary or deadly
force or violence for the purpose of preventing a forcible offense against
the person or his property in accordance with R.S. 14:19 or 20 is immune
from civil action for the use of reasonable and apparently necessary or
deadly force or violence.
B.
The court shall award reasonable attorney fees, court costs,
compensation for loss of income, and all expenses to the defendant in
any civil action if the court finds that the defendant is immune from suit
in accordance with Subsection A of this Section.
La. Stat. Ann. § 9:2800.19 (emphasis added). Louisiana Revised Statute 14:19 sets
forth two circumstances where it is justifiable to use force or violence upon the person
of another, including “[w]hen committed for the purpose of preventing a forcible
offense against the person […] provided that the force or violence used must be
reasonable and apparently necessary to prevent such offense.” La. Stat. Ann. § 14:19.
The statute goes on to provide that “[a] person who is not engaged in unlawful activity

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and who is in a place where he or she has a right to be shall have no duty to retreat
before using force or violence as provided for in this Section and may stand his or her
ground and meet force with force.” Id. Moreover, “[n]o finder of fact shall be permitted
to consider the possibility of retreat as a factor in determining whether or not the
person who used force or violence in defense of his person […] had a reasonable belief
that force or violence was reasonable and apparently necessary to prevent a forcible
offense….” Id. A claim of self-defense in non-homicide scenarios requires a dual
inquiry: “first, an objective inquiry into whether the force used was reasonable under
the circumstances, and, second, a subjective inquiry into whether the force used was
apparently necessary.” State v. Pizzalato, 93-1415 (La. App. 1st Cir. 10/7/94), 644
So.2d 712, 714, writ denied, 94-2755 (La. 3/10/95), 650 So.2d 1174.
Defendant’s counterclaim alleges that Plaintiff physically accosted Defendant
by reaching out and making unwanted physical contact with him at Harrah’s Casino.
Defendant further alleges that he removed Plaintiff’s hand, but Plaintiff persisted
and exchanged words with Defendant. Defendant asserts that Plaintiff then “stepped
into” Defendant, such that their torsos touched. Defendant alleges that Plaintiff’s
actions led him to believe that escalating physical force from Plaintiff was imminent
and the use of force against Plaintiff was reasonable and necessary to prevent “the
continuing and escalating assault and battery against [Defendant’s] person.”
Accepting the allegations in Defendant’s counterclaim as true, it is at least plausible
that Defendant’s use of force against Plaintiff was reasonable under the
circumstances and that Defendant believed the use of force was necessary. Plaintiff

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argues that Defendant was the aggressor and viciously attacked Plaintiff without
cause. While this may ultimately be shown to be true, the Court finds that as alleged
and accepted as true, Defendant’s counterclaim contains a plausible claim for selfdefense.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Dismiss (Rec. Doc. 15)
is DENIED.
New Orleans, Louisiana, this 23rd day of January, 2019.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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