Thomas et al v. Chambers et al
Filing
217
ORDER AND REASONS: For the foregoing reasons set forth in the document, the Magistrate Judge's 147 order denying defendants' 33 motion for leave to file a supplemental and amending answer is set aside, and defendants' 33 motion for leave to file a supplemental and amending answer is GRANTED. Plaintiffs' 208 and 210 motions are DENIED. Signed by Judge Sarah S. Vance on 5/28/2019. (mm) (NEF: MAG 4)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KIERRA THOMAS, ET AL.
VERSUS
CIVIL ACTION
NO. 18-4373
RANDALL CHAMBERS, ET AL.
SECTION “R” (4)
ORDER AND REASONS
Before the Court is (1) defendants’ objection to the Magistrate Judge’s
order denying their motion for leave to file a supplemental and amending
answer,1 (2) plaintiffs’ motion for relief from the Court’s order,2 and (3)
plaintiffs’ motion to extend the deadline to depose certain individuals. 3
Because defendants’ motion for leave to amend their answer satisfies the
factors in Federal Rules of Civil Procedure 16(b) and 15(a), the Court sets
aside the Magistrate Judge’s order pursuant to Rule 72(a). The Court also
denies both of plaintiffs’ motions.
1
2
3
R. Doc. 169.
R. Doc. 208.
R. Doc. 210.
I.
BACKGROUND
On April 6, 2018, plaintiffs filed this lawsuit against defendants
Randall Chambers, God’s Way Trucking, LLC, and Canal Insurance
Company, for injuries plaintiffs allegedly sustained in a motor vehicle
accident on Interstate 10.4 Plaintiffs allege that Chambers’s negligence
caused their injuries, and that God’s Way is liable for their damages as
Chambers’s employer under the doctrine of respondent superior.5 Canal
Insurance allegedly insured the tractor-trailer Chambers was driving on the
day of the collision. 6
On April 30, 2018, defendants filed an answer to the complaint.7
Defendants asserted in this answer that “[a]ll alleged damages and/or
injuries made the subject of this litigation were proximately caused solely
and entirely by the negligence” of plaintiffs. 8
On July 2, 2018, defendants filed a counterclaim alleging that
plaintiffs’ filing of this lawsuit constituted a fraudulent misrepresentation
entitling defendants to damages under Louisiana law.9 Defendants alleged
4
5
6
7
8
9
R. Doc. 1-4.
Id. at 4 ¶¶ 13-14.
Id.
R. Doc. 4.
Id. at 4.
R. Doc. 13.
2
that plaintiffs intentionally caused the collision “and/or” suffered no
injuries, and that they filed a false complaint in order to recover damages in
litigation. 10 On October 24, 2018, the court dismissed the counterclaim
because (1) it was incompatible with an assertion that defendants relied on
plaintiffs’ alleged misrepresentations, and therefore was not legally
cognizable, and (2) it failed to satisfy the heightened pleading requirement
of Federal Rule of Civil Procedure 9(b).11
Two days after the Court issued this order, defendants moved for leave
to file a supplemental and amending counterclaim.12 The proposed amended
counterclaim explained in greater detail the basis for their fraud claim.13
Defendants asserted (1) that Chambers “did not experience any type of
impact consistent with a motor vehicle accident,” (2) that Chambers only
merged into the right lane after “an unknown third vehicle swerved directly
in front of him into his lane 2-3 times,” and (3) that shortly after merging,
plaintiffs “flagged” Chambers down and indicated that they had been in a
collision. 14 Defendants further alleged that there is circumstantial evidence
10
11
12
13
14
Id. at 2 ¶ 4.
R. Doc. 20.
R. Doc. 22.
See R. Doc. 22-4.
Id. at 2 ¶ 3.
3
supporting their allegation that plaintiffs’ claims are fabricated.15
Defendants asserted that plaintiffs have social or familial ties to the plaintiffs
in approximately fifteen other lawsuits involving similar collisions on
Interstate 10.16 The Court denied defendants leave to file the amended
counterclaim, because it did not remedy the fact that their claim for fraud
was not legally cognizable under Louisiana law. 17
On January 14, 2019, defendants filed a motion for leave to file a
supplemental and amending answer. 18 In their proposed amended answer,
defendants assert that “[a]ll alleged damages and/or injuries made the
subject of this litigation were proximately caused solely and entirely by the
intentional acts and/or negligence” of plaintiffs. 19 Defendants explain:
Plaintiffs were aware of other similar claims brought by or on
behalf their neighbors, relatives, and associates involving
disputed liability sideswipe type collisions with commercial
vehicles. Plaintiffs conspired to cause and/or stage this incident.
On or about April 24, 2017, Plaintiffs did in fact cause and/or
stage this accident. They are now presenting a fraudulent claim
arising out of the subject incident. 20
Id. at 2-9.
Id. Defendants generally assert that the individuals involved in these
other accidents are either plaintiffs’ relatives or “associates.” Id.
17
R. Doc. 37.
18
R. Doc. 33.
19
R. Doc. 33-4 at 4.
20
Id. at 9.
15
16
4
Defendants alternatively assert that in the event plaintiffs establish that
Chambers acted negligently, plaintiffs’ “intentional acts . . . proximately
contributed to the occurrence of the alleged accident” and plaintiffs’
damages.21 Defendants’ motion was referred to Magistrate Judge Karen
Wells Roby. 22 On April 5, 2019, Magistrate Judge Roby denied defendants’
motion. 23 She concluded that permitting the amendment would be futile,
because defendants’ proposed amended answer did not state the affirmative
defense of fraud with enough particularity under Rule 9(b). 24
The discovery deadline, and the date by when the parties had to file
their pretrial witness and exhibits lists, was March 18, 2019. 25 On April 12,
2019, plaintiffs moved to exclude eighteen of the witnesses that defendants
included on their witness list. 26 For many of these eighteen witnesses,
defendants had stated that they would testify to the following:
Social media postings; social media friends, relationships with
people involved in similar accidents in New Orleans;
communications with and/or contact with Plaintiffs, before or
after the alleged accident; and information regarding common
21
22
23
24
25
26
Id. at 5-7.
See R. Doc. 33.
R. Doc. 147 at 7-8.
Id.
R. Doc. 9.
See R. Doc. 154-1.
5
facts and direct connections to similar accidents in New
Orleans.27
Plaintiffs argued that testimony regarding other allegedly staged collisions
was not relevant because the Court had dismissed defendants’ counterclaim
for fraud, and the testimony was therefore more prejudicial than probative
under Federal Rule of Evidence 403.28
During the pretrial conference—which took place on April 16, 2019—
the Court discussed the admissibility of this lay testimony. The Court
instructed defendants that evidence of nonparties’ staging collisions is
admissible only if defendants can show that (1) a nonparty admitted that he
or she staged another collision in order to bring a tort claim against another
party, and (2) there is evidence that that same nonparty communicated with
one or more plaintiff in this case around the time of the subject collision.29
Defendants then filed an opposition to plaintiffs’ motion, and in response to
the Court’s order dropped all but eight of the witnesses they had previously
proposed.30
27
28
29
30
R. Doc. 127 at 2-7.
R. Doc. 154-1 at 1-2.
See R. Doc. 165 at 2.
See R. Doc. 175.
6
On April 18, 2019, the Court continued trial and ordered the parties to
appear at a status conference. 31 The Court explained that it had learned of a
federal criminal investigation in the Eastern District of Louisiana that may
be connected to this case, and ordered the parties to be prepared to discuss
whether the case should be stayed pending the outcome of that
investigation. 32 The Court also stated that “fact and expert discovery” were
closed, and that “[t]here will be no further motion practice of any kind unless
ordered by the Court.” 33
On May 6, 2019, the Court ruled on plaintiffs’ motion to exclude lay
testimony.34 As relevant for the purposes of the instant motions, the Court
ruled that the following witnesses could testify to at least some issues at trial:
(1) Tara Blunt, (2) Harry Dorsey, (3) Charlotte Jones, (4) Raymond Riley, (5)
Cornelius Green, and (6) Joe Schembre, an investigator with J.S.
Investigations.35 Of these witnesses, only Harry Dorsey was permitted to
testify as to the staging of other collisions not involving plaintiffs. 36 The
other witnesses were allowed to testify because they have either (1) direct
31
32
33
34
35
36
R. Doc. 173.
Id.
Id. at 2.
See R. Doc. 196.
Id. at 7-12.
See id.
7
knowledge of plaintiffs’ activities or movements on the day of the collision—
such that they can testify as to plaintiffs’ claims for damages and whether
they intentionally caused this specific collision—(2) direct knowledge that
plaintiffs themselves have staged other collisions, or (3) had conducted
interviews with other witnesses who were permitted to testify. 37
There are presently three motions before the Court. First, defendants
object to Magistrate Judge Roby’s order denying them leave to file their
amended answer.38 Second, plaintiffs move for relief from the Court’s order
permitting these lay witnesses to testify at trial. 39 Third, plaintiffs move to
extend the discovery deadline so that they can conduct depositions of (1)
Tara Blunt, (2) Harry Dorsey, (3) Charlotte Jones, (4) Raymond Riley, (5)
Cornelius Garrison, (6) a Rule 30(b)(6) deposition of J.S. Investigations,
investigator Joe Schembre’s corporate entity, (7) Robert Weber, and (8)
Marlene Kennedy. 40
Neither Weber nor Kennedy are witnesses that
defendants have indicated will be called at trial.
37
38
39
40
See id.
R. Doc. 169.
R. Doc. 208.
R. Doc. 210.
8
II.
LEGAL STANDARD
A party seeking to amend its pleading after the deadline set by the
Court must show “good cause” for the amendment under Federal Rule of
Civil Procedure 16(b). S&W Enters., LLC. v. SouthTrust Bank of Ala., NA,
315 F.3d 533, 53-36 (5th Cir. 2003). “The good cause standard requires the
‘party seeking relief to show that the deadlines cannot reasonably be met
despite the diligence of the party needing the extension.’” Id. at 535 (quoting
6A Charles Alan Wright et al., Federal Practice and Procedure § 1522.1 (2d
ed. 1990)). Whether to grant or deny a continuance is within the sound
discretion of the trial court. United States v. Alix, 86 F.3d 429, 434 (5th Cir.
1996). The Court’s “judgment range is exceedingly wide” when making
scheduling decisions, for it “must consider not only the facts of the particular
case but also all of the demands on counsel’s time and the court’s.” Streber
v. Hunter, 221 F.3d 701, 736 (5th Cir. 2000) (quoting HC Gun & Knife
Shows, Inc. v. City of Houston, 201 F.3d 544, 549-50 (5th Cir. 2000)).
Courts specifically consider “(1) the explanation for the failure to [timely
move for leave to amend]; (2) the importance of the [amendment]; (3)
potential prejudice in allowing the [amendment]; and (4) the availability of
a continuance to cure such prejudice.”
9
S&W Enters., 315 F.3d at 536
(quoting Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257
(5th Cir. 1997)) (alternations in original).
If the Court finds that plaintiff has demonstrated good cause to modify
the scheduling order, it then applies the more liberal standard of Federal
Rule of Civil Procedure 15(a) to determine whether to grant the motion. Id.
Under Rule 15(a), the Court “freely give[s] leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a). The Supreme Court has held that “[i]f the
underlying facts or circumstances relied upon by a plaintiff may be a proper
subject of relief, he ought to be afforded an opportunity to test his claim on
the merits.” Foman v. Davis, 371 U.S. 178, 182 (1962). Leave to amend,
however, “is by no means automatic.” Halbert v. City of Sherman, 33 F.3d
526, 529 (5th Cir. 1994). The Court considers multiple factors, including
“undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment,
[and] futility of amendment.” Foman, 371 U.S. at 182.
10
III. DISCUSSION
A.
Objection to Order Denying Leave to Amend
The Court must set aside the Magistrate Judge’s order if it is “found to
be clearly erroneous or contrary to law.” Fed R. Civ. P. 72(a); see also United
States v. Wilson, 864 F.2d 1219 (5th Cir. 1989). Because the Court finds the
order clearly erroneous, it will set it aside and permit defendants to file their
amended answer.
Defendants seek to include in their amended answer a defense that
plaintiffs conspired to, and did, intentionally cause this collision in order to
bring a false claim for damages in court. 41 The Court must apply the Rule
16(b) factors to determine whether defendants can amend their answer after
the deadline set by the Court. See S&W Enters., 315 F.3d at 536. First,
defendants stated in their initial counterclaim on July 2, 2018, that plaintiffs
intentionally caused the collision. 42 July 2 was also the deadline to file
amended answers. 43 Defendants have provided no adequate explanation for
why they waited until January 14, 2019 to amend their answer to reflect this
contention as a defense. This factor therefore weighs against defendants.
41
42
43
R. Doc. 33-4 at 5-7, 9.
R. Doc. 13.
R. Doc. 9.
11
Second, the Court finds the amendment important to defendants.
Defendants have made clear since they filed their first counterclaim that
their main defense in this litigation is that plaintiffs intentionally caused the
collision to file a lawsuit for damages.44 Defendants did not state this defense
in their original answer.45 Allowing defendants to amend their answer to
formally reflect this defense is certainly important. This factor therefore
weighs in defendants’ favor. See Tajonera v. Black Elk Energy Offshore
Operations, LLC, No. 13-366, 2015 WL 13533519, at *4-5 (E.D. La. Jan. 30,
2015) (amended complaint considered important when it included new facts
that were critical to the plaintiff’s case-in-chief).
Third, there is no potential prejudice to plaintiffs if the Court permits
the amendment. Again, plaintiffs have been on notice since July 2018 that
defendants planned to argue at trial that they are not liable for plaintiffs’
damages because plaintiffs staged this collision. Defendants also disclosed
this intention throughout discovery in their interrogatory responses and
during the depositions of plaintiffs.46 It has been defendants’ contention this
entire case.
Plaintiffs cannot plausibly assert they are surprised by
defendants’ motion to include this defense in their answer. This factor
44
45
46
See id.
See R. Doc. 4.
See R. Doc. 216-1; R. Doc. 216-2; R. Doc. 216-3; R. Doc. 216-4.
12
therefore weighs in defendants’ favor. See Davis v. Karl, No. 10-875, 2011
WL 13203134, at *2 (E.D. La. Feb. 2, 2011) (no prejudice in allowing
amended answer to include new affirmative defense when the plaintiff was
on notice of the defendant’s intention to argue specific defense). Finally, the
availability of an additional continuance is not a factor because there is no
prejudice to plaintiffs.
On balance, the Rule 16(b) factors therefore support a finding that
defendants should be granted leave to amend their answer. Applying the
Rule 15(a) factors supports the same conclusion. While defendants may have
exhibited undue delay in waiting to formally amend their answer, there is no
evidence of any bad faith or dilatory motive on their part. See Foman, 371
U.S. at 182. Nor have defendants repeatedly failed to cure deficiencies in
amendments the Court has previously allowed. See id. And as already
addressed, there is no prejudice to plaintiffs in granting the amendment.
Magistrate Judge Roby denied defendants’ motion on the grounds that
granting leave to amend would be futile, because defendants failed to plead
the affirmative defense of fraud with the specificity required under the
Federal Rules. The court will now address this conclusion.
Federal Rules of Civil Procedure 8(b) and (c) set forth the pleading
requirements for defenses and affirmative defenses, respectively. Fed. R.
13
Civ. P. 8(b)-(c). A “defense” is a “stated reason why the plaintiff . . . has no
valid case.” Black’s Law Dictionary (10th ed. 2014). An “affirmative defense”
is an “assertion of facts and arguments that, if true, will defeat the plaintiff’s
. . . claim, even if all the allegations in the complaint are true.” Id. A
defendant is required to “state in short and plain terms its defenses to each
claim asserted against it” and “affirmatively state any avoidance or
affirmative defense. . . .” Fed. R. Civ. P. 8(b)(1)(A) and (c)(1).
In Woodfield v. Bowman, the Fifth Circuit held that affirmative
defenses are subject to the same pleading requirements as a complaint and
articulated a “fair notice” standard for pleading affirmative defenses. 193
F.3d 354, 362 (5th Cir. 1999). Under this standard, a defendant is required
to plead an affirmative defense “with enough specificity or factual
particularity to give the plaintiff ‘fair notice’ of the defense that is being
advanced.” Id. (citing Automated Med. Labs. v. Armour Pharm. Co., 629
F.2d 1118, 1122 (5th Cir. 1980)). Courts in this district have continued to
apply Woodfield’s “fair notice” standard even after Iqbal and Twombly
announced a higher pleading standard for complaints. See, e.g., Harris v.
USA Ins. Cos., No. 11-201, 2011 WL 3841869, at *3 (E.D. La. Aug. 30, 2011)
(noting that in Rogers v. McDorman, 521 F.3d 381 (5th Cir. 2008), the Fifth
Circuit applied the Woodfield standard even after Twombly was decided);
14
Schlesinger v. Hasco Thibodaux, LLC, No. 13-6237, 2014 WL 527657, at *2
(E.D. La. Feb. 7, 2014) (same).
Notwithstanding this typical pleading
standard, affirmative defenses of fraud must be pleaded with the
particularity required by Rule 9(b). See Fisk Elec. Co. v. Fid. & Deposit Co.
of Md., No. 12-953, 2013 WL 592907, at *5 (E.D. La. Feb. 14, 2013).
The Magistrate Judge correctly noted that defendants cannot state an
affirmative defense of fraud. That affirmative defense requires defendants
to plead the elements of fraud under Louisiana law—including reliance. See,
e.g., Farnham v. Electrolux Home Care Prod., Ltd., 527 F. Supp. 2d 584, 588
(W.D. Tex. 2007) (holding that because reliance was an element of fraud
under Texas law, “a disclaimer of reliance precludes a party from raising
fraud as an affirmative defense”). Defendants’ assertions throughout this
litigation are incompatible with fraud, because defendants do not allege that
they ever believed plaintiffs’ representations to be true.
But defendants’ proposed amendment is not futile.
Defendants’
assertion that plaintiffs conspired to, and did, intentionally cause this
collision to recover damages in litigation is simply a defense to plaintiffs’
negligence claim. 47 This defense complies with the pleading standard for
defenses set by Rule 8(b). It is a statement in “short and plain terms”
47
R. Doc. 33-4 at 4 ¶ 13, 5-6 ¶ 15, 9 ¶ 27.
15
explaining why plaintiffs’ claim for negligence fails.
Fed. R. Civ. P.
8(b)(1)(A).
The proposed amended answer also contains a properly-pleaded
affirmative defense along these lines.
Defendants assert that even if
plaintiffs can establish Chambers acted negligently, defendants should not
be held fully liable for plaintiffs’ injuries because plaintiffs’ “intentional acts
. . . contributed to the occurrence of the alleged accident” and their
damages.48
This statement is akin to “illegality” and “contributory
negligence,” both of which are affirmative defenses listed in Rule 8(c). See
Fed. R. Civ. P. 8(c). This affirmative defense is adequately pleaded because
defendants provide plaintiffs with “fair notice” of the nature of the defense
and what arguments they will make at trial. See Woodfield, 193 F.3d at 362. 49
Because defendants’ assertions in their proposed amended answer
satisfy the pleading standards for defenses and affirmative defenses in Rules
8(b) and (c), amendment is not futile. In all, because defendants’ motion
satisfies Rules 16(b) and 15(a), the Court will set aside the Magistrate Judge’s
order and grant defendants leave to amend their answer.
Id. at 5 ¶ 14, 6-7 ¶ 16.
Defendants’ answer would also satisfy the Iqbal and Twombly
pleading standards.
48
49
16
B.
Motion to Permit Depositions of Fact Witnesses
Plaintiffs move for leave to conduct eight depositions after the
discovery deadline has passed.50 They seek to depose (1) Tara Blunt, (2)
Charlotte Jones, (3) Raymond Riley, (4) Cornelius Garrison, (5) Marlene
Kennedy, (6) Harry Dorsey, (7) a Rule 30(b)(6) deposition of J.S.
Investigations, and (8) Robert Weber. 51 Plaintiffs’ motion is denied. As an
initial matter, plaintiffs’ motion violates the Court’s order that “[t]here will
be no further motion practice of any kind unless ordered by the Court.”52
Plaintiffs’ motion is denied for this reason alone.
Plaintiffs’ motion is
separately denied under Rule 16(b) for each of the witnesses they seek to
depose.
1.
Tara Blunt, Charlotte Jones, Raymond Riley, Cornelius
Garrison, and Marlene Kennedy
First, plaintiffs have not provided an adequate explanation for their
delay in deposing these individuals to justify an extension of the discovery
deadline. See S&W Enters., 315 F.3d at 536. The record reflects that
plaintiffs were on notice as early as October 2018 that each of these
individuals was relevant to defendants’ argument that this collision was
50
51
52
R. Doc. 210.
R. Doc. 210-1 at 3.
R. Doc. 173.
17
staged.
On October 18, 2018, defendants asked each plaintiff during
depositions whether they knew these individuals. 53 Defendants’ briefing
papers in connection with their motion to alter the Court’s dismissal of their
counterclaim also included many of these individuals’ names, and linked
them to other similar accidents on Interstate 10. 54 Those briefs were filed in
October and November 2018.55 Then, on February 23, 2019, nearly one
month before the deadline, defendants disclosed in an interrogatory
response that they intended to call each of these individuals to testify at
trial. 56 In that response, defendants stated the topics on which each witness
would testify.57 The record thus reflects that before the discovery deadline,
plaintiffs were aware (1) of these individuals’ identities, (2) that defendants
had linked many of them to other similar collisions on Interstate 10, and (3)
of defendants intention to have them testify at trial and the matters on which
they could testify. Plaintiffs nevertheless chose not to depose them. There is
See R. Doc. 216-1; R. Doc. 216-2; R. Doc. 216-3.
See R. Doc. 22-1; R. Doc. 32.
55
Id.
56
R. Doc. 210-1 at 5; R. Doc. 216-4 at 2-5.
57
R. Doc. 210-1 at 5-7. Plaintiffs contend that defendants’ disclosure was
materially different from their witness list, which was filed into the record at
the close of discovery in accordance with the Court’s scheduling order. But
a comparison of the disclosure with the witness list reveals that they were
substantially the same. See id. Plaintiffs’ argument that any insufficiency in
defendants’ interrogatory responses justifies an extension of the discovery
deadline is therefore unavailing.
18
53
54
not good cause to extend the discovery deadline in such a circumstance. See
EEOC v. Prod. Fabricators Inc., 285 F.R.D. 418, 422-23 (D. Minn. 2012)
(finding no good cause to reopen discovery to allow a party to further depose
a witness, when the party “made a strategic decision about what to ask [the
witness] during his deposition”).
In addition, the record suggests that plaintiffs personally know some
of the individuals they now seek to depose. Defendants assert—and plaintiffs
have never fully rebutted—that these individuals are either related to
plaintiffs or otherwise have some social connections to them. 58 For instance,
plaintiffs Antoine Clark and Shirley Harris both stated during their
depositions that they were at Tara Blunt’s apartment before the collision. 59
Plaintiffs also concede that Harris spoke to Cornelius Garrison on the day of
the collision. 60 Plaintiffs have also produced to the Court a sworn affidavit
from Marlene Kennedy, in which she recants statements she previously
made regarding staging accidents.61 This affidavit suggests that plaintiffs or
their counsel have had access to Kennedy.
58
59
60
61
That plaintiffs have these
See R. Doc. 21-1 (defendants’ proposed amended counterclaim).
R. Doc. 175-1 at 7; R. Doc. 175-2 at 3-4.
See R. Doc. 208-1 at 9.
See R. Doc. 208-3.
19
connections reinforces that plaintiffs have no good explanation for why they
were not able to depose these individuals during the discovery deadline.
Plaintiffs’ stated explanation for their inability to depose these
individuals before the discovery deadline is that they believed their
testimony was not relevant at trial, and therefore they did not want to
“burden plaintiffs with unnecessary costs.” 62
Plaintiffs state that they
believed their testimony was not relevant because the Court had dismissed
defendants’ counterclaim twice, and because the Magistrate Judge denied
defendants leave to amend their answer on April 5, 2019. 63
But any
suggestion that the Magistrate Judge’s order influenced plaintiffs’ decision
not to depose these individuals before the discovery deadline fails, because
that order was issued more than two weeks after the discovery deadline.64
Plaintiffs’ argument that the Court’s prior dismissal of defendants’
counterclaim somehow justifies their decision not to depose these
individuals during discovery is similarly unavailing. The Court dismissed
defendants’ counterclaim because they failed to state a cognizable cause of
action for fraud under Louisiana law. 65 This decision was irrelevant to
62
63
64
65
R. Doc. 210-5 at 10.
Id. at 9-10.
See R. Doc. 9; R. Doc. 147.
See R. Doc. 20 at 6-8.
20
defendants’ defense that they should not be held liable for plaintiffs’ alleged
injuries because plaintiffs staged the collision.
Plaintiffs’ apparent
misunderstanding of the difference between a counterclaim and a defense
does not constitute good cause to now conduct these depositions.
As already mentioned, plaintiffs were on notice in July 2018—when
defendants filed their initial counterclaim—that defendants would assert this
defense at trial. 66 Defendants then moved for leave to file their amended
answer on January 14, 2019 to formally include this defense in their
answer.67 That motion was pending up to and through the March 18, 2019
discovery deadline. Plaintiffs were thus aware well before the discovery
deadline that defendants intended to assert this defense at trial, but opted to
move to exclude these individuals from testifying rather than depose them. 68
Plaintiffs are not entitled to a do-over now.
Next, plaintiffs do not show the importance of conducting these
depositions. Plaintiffs argue that they are important (1) because the Court
instructed plaintiffs’ counsel at the pretrial conference to investigate whether
plaintiffs’ claims in this litigation are true, and (2) because “the truth needs
66
67
68
See R. Doc. 13.
R. Doc. 33.
R. Doc. 154.
21
to be uncovered so that this case can either be dismissed or so that this case
can proceed to trial.” 69
This is a woeful excuse to reopen discovery.
Discovery is conducted for the benefit of the parties, not the parties’
attorneys. The Court’s statement to counsel was a reminder that they should
take it upon themselves to ensure that they are not representing parties who
are making untruthful claims. That inquiry of course should have been made
at the beginning of this litigation, or whenever counsel enrolled in it. It is
not a reason to reopen discovery.
Finally, defendants would be prejudiced by granting this extension,
because they would have to expend resources defending these depositions
when the discovery deadline has already passed. Plaintiffs therefore have
not shown good cause to depose these witnesses under Rule 16(b).
2.
Harry Dorsey
Plaintiffs’ motion to depose Harry Dorsey is also denied under Rule
16(b). Plaintiffs explain that Dorsey was not disclosed as a potential witness
in defendants’ interrogatory responses, and that they therefore did not learn
of Dorsey’s potential testimony until defendants filed their witness and
exhibit list on March 18, 2019.70 March 18 was also the discovery deadline.71
69
70
71
R. Doc. 210-1 at 11.
Id. at 10.
R. Doc. 9.
22
But defendants disclosed Dorsey’s identity in a brief filed in November 2018,
in which they identified him as part of a similar collision on Interstate 10
around the time of plaintiffs’ collision. 72 Defendants’ February 23, 2019
interrogatory responses also connected Dorsey to a similar collision. 73
Plaintiffs were thus on notice before the discovery deadline that defendants
believed Dorsey to be relevant to their argument that plaintiffs staged this
collision, but plaintiffs still chose not to depose him.
In addition, plaintiffs evidently have had access to Dorsey already,
because they are in possession of his sworn affidavit in which he recants his
prior statements regarding staging another collision. 74 This affidavit lessens
the importance of his deposition, because plaintiffs already possess
impeachment evidence. Plaintiffs therefore have not shown good cause to
extend the discovery deadline to depose Dorsey.
3.
J.S. Investigations
Plaintiffs also seek to conduct a Rule 30(b)(6) deposition of J.S.
Investigations. J.S Investigations was disclosed in defendants’ February 23,
2019 interrogatory response as investigator Joe Schembre’s corporate
72
73
74
R. Doc. 32 at 8.
R. Doc. 216-4 at 11.
R. Doc. 208-2.
23
entity.75
Plaintiffs therefore do not have good cause to conduct this
deposition for the reasons already stated.
4.
Robert Weber
Lastly, plaintiffs seek to depose Robert Weber, an investigator who
secured a recorded statement from Marlene Kennedy in which she admitted
to having knowledge of other individuals staging collisions.76 Plaintiffs state
that the statement was videotaped, and in the video Weber is seen buying
Kennedy food and handing her twenty dollars.77 Plaintiffs argue that this
video “raises questions” whether defendants are “paying witnesses” to offer
statements favorable to defendants. 78 Plaintiffs do not state when they
received this recorded statement. Defendants state in their brief that they
produced it to plaintiffs on January 29, 2019.79 Their February 23, 2019
interrogatory response indeed refers to this recorded statement.80 The
record before the Court thus indicates that plaintiffs were aware of this
recorded statement prior to the discovery deadline, but chose not to pursue
75
76
77
78
79
80
R. Doc. 216-4 at 7.
R. Doc. 210-1 at 12.
Id.
Id.
R. Doc. 216 at 9.
R. Doc. 216-4 at 13-14.
24
Weber’s deposition. They therefore do not have good cause to conduct this
deposition for the reasons already stated.
C.
Motion to Alter or Amend the Court’s Order
This motion also violates the Court’s order that motion practice is
closed, and is dismissed on that basis alone. 81 It is also dismissed on the
merits.
Plaintiffs’ motion is brought under Rule 60(b) to alter the Court’s prior
order denying plaintiffs’ motion to exclude certain witnesses from testifying.
A district court has broad discretion to grant or deny a motion under Rule
60(b). Halicki v. La. Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir 1998).
Under Rule 60(b), a court may grant relief from a final judgment or order
only upon a showing of:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under Rule
59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a
prior judgment upon which it is based has been reversed or
81
R. Doc. 173.
25
otherwise vacated, or it is no longer equitable that the judgment
should have prospective application; or
(6) any other reasons justifying relief from the operation of the
judgment.
Fed. R. Civ. P. 60(b). The burden of establishing at least one of these reasons
is on the moving party, and the determination of whether that burden has
been met rests with the discretion of the Court. See Lavespere v. Niagra
Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990).
Plaintiffs’ motion is largely a refutation of the Court’s determination
on the merits. 82 Plaintiffs argue that the witnesses the Court has permitted
to testify are not relevant to this case. This is not a proper basis for a motion
under Rule 60(b).
But plaintiffs do identify one Rule 60(b) reason in their motion.
Plaintiffs state that defendants misrepresented evidence that they submitted
to the Court in their opposition to plaintiffs’ motion to exclude Harry
Dorsey. 83 See Fed. R. Civ. P. 60(b)(3) (“misrepresentation” by opposing
party is grounds for relief from order). Defendants submitted plaintiff
Shirley Harris’s phone records to the Court, and stated that in those records
was evidence that Dorsey had been in contact with Harris around the time of
82
83
See R. Doc. 208-1.
Id. at 5-6.
26
the collision. Plaintiffs now submit an affidavit from Harris, in which she
states that the phone number defendants claimed belonged to Dorsey—504300-3555—is actually the number for Harris’s cousin Danielle.84
In
response, defendants have produced a “Patient Information” form that they
state is from Dorsey’s medical records, in which Dorsey listed his phone
number as 504-300-3555. 85
This is a factual dispute between the parties that can be addressed
during Dorsey’s testimony at trial. It is not grounds to alter the Court’s
judgment. But defendants are instructed that—consistent with the Court’s
prior orders—they must lay a foundation at trial that Dorsey was in contact
with Harris around the time of the subject collision before eliciting testimony
about other collisions Dorsey claims to have staged.
84
85
See R. Doc. 208-4.
R. Doc. 215 at 5; R. Doc. 215-2.
27
IV.
CONCLUSION
For the foregoing reasons, the Magistrate Judge’s order denying
defendants’ motion for leave to file a supplemental and amending answer is
set aside, and defendants’ motion for leave to file a supplemental and
amending answer is GRANTED. Plaintiffs’ motions are DENIED.
28th
New Orleans, Louisiana, this _____ day of May, 2019.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
28
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