Piazza's Seafood World, LLC v. Odom

Filing 110

RULING & ORDER granting 98 Nonparty's MOTION for Reconsideration by Magistrate Noland of Her Nondispositive Order of 8/19/2011 (doc. 98), but that, after reconsideration, the undersigned's 8/19/2011 Ruling & Order (doc. 95) is nevertheles s MAINTAINED as issued. FURTHER ORDERED that the request of pltf, Piazza's Seafood Worlk, LLC, for an award of the attorneys fees and costs that it incurred in connection with this motion for reconsideration is hereby GRANTED, and such amount is to be included in the general award of fees/costs associated with Piazzas motion to compel to be paid solely by the Department and/or its counsel. Signed by Magistrate Judge Christine Noland on 9/29/2011. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

PIAZZA’S SEAFOOD WORLD, L.L.C.

CIVIL ACTION

VERSUS
BOB ODOM, COMMISSIONER OF
AGRICULTURE FOR THE STATE
OF LOUISIANA, IN HIS OFFICIAL
CAPACITY AND INDIVIDUAL
CAPACITY

NO. 07-413-BAJ-CN

RULING & ORDER
This matter is before the Court on the “Nonparty’s Motion for Reconsideration by
Magistrate Noland of Her Nondispositive Order of August 19, 2011"1 (R. Doc. 98) filed by
nonparty, Louisiana Department of Agriculture and Forestry (“the Department”). Plaintiff,
Piazza’s Seafood World, LLC (“Piazza”), has filed an opposition (R. Doc. 99) to the
Department’s motion.
The standard of review on a motion to reconsider a Magistrate Judge’s ruling on a
discovery matter (such as the “Consolidated Motion to Compel Production of Documents
from Defendant Bob Odom, Pursuant to Rules 34 and 37, and from the Louisiana
Department of Agriculture and Forestry, Pursuant to Rules 37 and 45, with Request for
Attorneys’ Fees” (R. Doc. 72) that was the subject of the undersigned’s August 19, 2011
Ruling & Order) is whether that ruling was “clearly erroneous or contrary to law.” Fed. R.

1

The Ruling & Order sought to be reconsidered herein was actually signed by the undersigned on
August 18, 2011 but was electronically docketed by the Clerk’s Office on the following day. The
Department referred to the date of the Ruling & Order as August 19, 2011 in its motion for reconsideration;
the undersigned will also refer to the subject ruling by that date.

1

Civ. P. 72(a). There are two (2) aspects of the undersigned’s August 19, 2011 Ruling &
Order that the Department seeks to have reconsidered and reversed: (1) the award of
attorney’s fees and costs to Piazza; and (2) the finding that the documents sought in
Subpoena Category No. 7, relating to the Eastern District litigation, are relevant to this
litigation and required to be produced unless such documents are privileged, part of the
public record, or were previously produced to Piazza in the context of the Eastern District
litigation.
The Department has not, however, offered plausible arguments indicating that either
of the above two (2) decisions by the undersigned constitute clear error or are contrary to
law. In arguing against the award of attorney’s fees/costs, counsel for the Department
(Karen Sher (“Sher”) of the Litchfield firm) contends that the Department’s failure to timely
and fully respond to Piazza’s subpoena and its complete failure to file any opposition to
Piazza’s motion to compel, despite the fact that such motion was pending in this Court for
three (3) months, resulted from the fact that the Department’s counsel was unaware that
Odom’s newly enrolled counsel was not representing the Department. Sher indicates that
the Department’s file regarding this case was transferred to Odom’s newly enrolled counsel
on or about May 31, 2011, and that Piazza’s counsel was notified, on June 2, 2011, that
the Department’s counsel would be “watching from the sidelines.” Sher contends that she
did not find out, until the end of June 2011, that Odom’s newly enrolled counsel would not
be representing the Department in this matter and that it was not until July 25, 2011 that
she received a package from Odom’s newly enrolled counsel containing “the documents
that the Department [ ] needs to produce in the above referenced litigation.” See, Exhibit
B to the Department’s motion.
2

The record evidence in this matter, however, indicates that the Department’s counsel
never actually withdrew as counsel of record for the Department at any point and that the
Department’s counsel received full notice of the filing of Piazza’s motion to compel on May
19, 2011. Specifically, four (4) attorneys with the Litchfield firm (Sher and three other
attorneys, E. John Litchfield, Kathy Lee Torregano, and Carey Daste) received electronic
notice of the filing of Piazza’s motion to compel on the date it was filed, thereby triggering
the 21-day period for filing an opposition thereto.2 Additionally, although Sher sent a letter
to Piazza’s counsel on June 2, 2011, concerning withdrawal from representation, such
letter only indicated that the Litchfield firm was withdrawing from representation of Bob
Odom in his individual capacity; it made no mention of any withdrawal from representation
of the Department. See, Exhibit A to the Department’s motion. The motion to substitute
counsel filed into the record by the Litchfield firm on June 6, 2011 (R. Doc. 73) was
consistent with Sher’s June 2, 2011 letter, stating that Edmund Wade Shows would be
substituted “as attorney for Bob Odom in his individual capacity.” Thus, there is absolutely
nothing in writing suggesting that the Litchfield firm ever withdrew as counsel for the
Department as it relates to this matter.
Furthermore, while it is true that, upon entry of R. Doc. 74 into the record,3 attorneys
Torregano and Sher ceased being copied on electronic filings in this matter for reasons
unknown to the undersigned, the third attorney with the Litchfield firm representing the

2

Counsel for Piazza also sent a copy of the motion to compel and exhibits to Torregano, Sher,
and Tabitha Gray, the Department’s general counsel, by email when it was filed, and Sher confirmed that
such documents had already been sent to she and Torregano via e-service. See, Exhibits B and C to
Piazza’s opposition to motion for reconsideration, R. Doc. 99.
3

R. Doc. 74 is the undersigned’s order granting the motion to substitute Edmund Wade Shows as
counsel for Bob Odom in his individual capacity.

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Department, i.e., E. John Litchfield, as well as another attorney with that firm, Carey Daste,
nevertheless continued to receive all notices of electronic filing in this case up to the
present date and could have informed attorneys Torregano and Sher regarding any filings
made.4 As such, there is no plausible excuse for the Litchfield firm’s failure to respond to
Piazza’s motion to compel on behalf of the Department.5 Considering that Sher admits she
was informed that Odom’s newly enrolled counsel would not be representing the
Department in late June 20116 and the undersigned did not issue a ruling on Piazza’s
motion to compel until late August 2011, Sher still had two (2) months within which to
review the status of the case and file some sort of response or request for extension of time
relating to the motion to compel, yet, completely failed to do so.7 In fact, she failed to
4

Sher explains, in the motion for reconsideration, that Daste admitted she had ignored the enotices she received, believing that the law firm was no longer involved in the case, and E. John Litchfield
“did not realize that the e-files he was receiving from the court were not being sent to Kathy Torregano and
[Sher].” While it is unfortunate that this failure to coordinate and communicate occurred among counsel at
the Litchfield firm, such failure was in no way Piazza’s fault and should not prejudice Piazza’s ability to
obtain timely and complete discovery in this matter.
5

As Piazza’s counsel points out, considering that two attorneys from the Litchfield firm (one of
whom was the most superior attorney on the case) continued to receive electronic filings and that the firm
had not formally notified anyone that it was no longer representing the Department, it was reasonable for
Piazza’s counsel to conclude that the Litchfield firm was still representing the Department and that Sher
and Torregano simply were no longer working on the case since they were no longer receiving electronic
notices. Regardless, since two attorneys from the Litchfield firm were receiving notices of filing throughout
the period that the motion to compel was pending, the firm has no reasonable excuse for its failure to file
some sort of response or extension request on behalf of the Department during the three (3) month period
that the motion was pending.
6

Odom’s newly enrolled counsel also apparently informed the Department’s general counsel,
Tabitha Gray, around July 11, 2011 that he would not be filing an opposition to Piazza’s motion to compel
on behalf of the Department because he did not represent that entity.
7

While Sher vaguely references a “unique situation” (i.e., Odom’s present condition of dementia)
and her own personal issues (the fact that she only works part-time; that, during the time when discovery
responses needed to be prepared, her father-in-law was hospitalized; that she took an 8-day long mission
trip to Israel; and that she celebrated the Passover holiday) as reasons for the delay in responding to
Piazza’s subpoena, those reasons do not justify the failure to file any response to Piazza’s motion or to, at
the least, request an extension and notify the Court of the various issues cited in the motion for
reconsideration. Furthermore, the undersigned is not exactly sure how Odom’s dementia impedes the
Department’s ability, as an entity, to respond to the subpoena. It seems that Odom’s dementia, if

4

inform the Court at any time, during that two (2) month period, of the purported confusion
concerning the representation of the Department that resulted in delays in producing
discovery and responding to Piazza’s motion.8
While the Department’s counsel apparently produced 263 Bates-labeled documents
and two (2) privilege logs, each of which only identify a single document, to Piazza’s
counsel on August 4, 2011, the Department made no effort to notify the Court of such
production and/or of any contention on the Department’s part that such production satisfied
its discovery obligations.

The Department contends that Piazza’s counsel had a

responsibility to notify the Court of such supplemental production.

However, the

undersigned disagrees. Piazza had already filed a reply memorandum relating to its motion
to compel several weeks before that supplemental production, and briefing related to
Piazza’s motion to compel was complete. If the Department contended that the August 5th
supplemental production satisfied Piazza’s motion to compel, it was the duty of the
Department’s counsel to notify the Court of such contention, not of Piazza’s counsel,
considering that such production came well after Piazza’s motion to compel was filed in
May 2011, and Piazza had already incurred significant fees and expenses on briefing

anything, would impact the ability of Odom’s counsel to respond to discovery propounded to Odom in his
individual capacity (which is likely the reason Piazza granted an extension of time for Odom to respond to
requests for admissions and interrogatories during Rule 37 conferences in early May 2011). Since Odom
is no longer the acting Commissioner for the Department, it seems unlikely that he would play an integral
role in responding to a subpoena propounded to the Department.
8

Sher admits, in the motion for reconsideration, that one of the reasons she did not file any
response to the motion to compel was because she “mistakenly believed that Piazza’s dispositive motion
for summary judgment would be decided before the motion to compel” and that her “primary duty” was
therefore “to produce as many documents as she could on the subpoena duces tecum before preparing
an opposition to the motion to compel.” See, R. Doc. 98-1, p. 5. If Sher indeed believed this, she should
have filed a motion for extension of time to respond to the motion to compel with the Court, rather than
completely neglecting the motion and failing to notify the Court of any of the issues raised in the motion for
reconsideration.

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related to the motion to compel brought about by the defendants’ delays and failures.
Furthermore, as Piazza now asserts, in its opposition to the Department’s motion for
reconsideration, the August 5th supplemental production does not appear to be a complete
response to the subpoena directed to the Department and therefore would not have
satisfied the motion to compel in any event. Thus, even if Piazza’s counsel had informed
the Court of the August 5th production by the Department, it likely would not have changed
the outcome of the undersigned’s August 19, 2011 Ruling & Order on Piazza’s motion to
compel.
In sum, the undersigned finds that the “confusion as to representation” argument
asserted by the Department as grounds for overturning the attorney’s fees award does not
hold water. Considering that at least two (2) attorneys with the Litchfield firm were always
receiving notices concerning the subject motion and that Sher had at least two (2) months
to file a response on behalf of the Department after her alleged confusion was clarified,
there is no excuse for the Department’s complete failure to respond. As Piazza notes, “it
is not Piazza’s job to see to [the Department’s] representation; rather, it is the
[Department’s] right and responsibility to see to its own defense.” See, R. Doc. 99, p. 9.
Piazza should not be prejudiced as a result of internal mis-communications and confusion
on the part of the Department and its counsel as to its representation. Accordingly, the
undersigned’s award of attorney’s fees and costs to Piazza relative to its motion to compel
should be maintained.

The undersigned agrees with Piazza that, if there was a

communication breakdown concerning the Department’s representation in connection with
the subpoena and the related motion to compel, that is an issue for the Department and its
legal counsel, rather than the Court, to resolve, through a possible apportionment of the
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attorney’s fees among the parties involved in the mis-communication.
Finally, in its argument that the portion of the August 19, 2011 Ruling & Order
relating to Category No. 7 of the subpoena should be reversed, the Department contends
that the Eastern District of Louisiana litigation is “irrelevant” to this matter since the
Department’s activities in monitoring seafood, both domestic and foreign, pre-dated the
Eastern District litigation. That fact, however, does not render the Eastern District litigation
irrelevant. As mentioned previously by this Court, the Eastern District litigation held that
Odom’s enforcement of a state statute that regulated the labeling of seafood violated the
dormant Commerce Clause, where that statute treated domestic seafood differently than
foreign seafood to the benefit of the former and the detriment of the latter. More generally,
that litigation held that state regulations violate the dormant Commerce Clause by
discriminating against or unduly burdening foreign or interstate commerce. Piazza v.
Odom, 448 F.3d 744 (5th Cir. 2006). In the present suit, Piazza alleges that, in 2007,
Odom promulgated, without any authorization from the Louisiana Legislature, certain
Department regulations that facially discriminated against the very same foreign seafood
that was at issue in the Eastern District litigation; that he interpreted those regulations to
directly regulate not only the foreign seafood sold within Louisiana but seafood sold in other
states as well; and exercised discretion to seize and search Piazza’s property without a
warrant, a hearing, or reasonable cause in enforcing those regulations. Piazza specifically
alleges that Odom took those actions with knowledge that they were unconstitutional
because he had knowledge of the Fifth Circuit’s determination in the Eastern District
litigation.
The scope of discovery is broad and permits discovery of “any nonprivileged matter
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that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). Considering that
Piazza specifically alleges the relevance of the Eastern District litigation to his claims in this
suit and the fact that such litigation involved similar parties and allegedly similar
unconstitutional conduct, documents concerning such litigation certainly meet the broad
standard of being “relevant to [Piazza’s] claims.” Furthermore, while the Department may
have regulated foreign seafood prior to the Eastern District litigation, without any complaints
by Piazza, it is the outcome of the Eastern District litigation (i.e., the declared
unconstitutionality of Odom’s conduct) that Piazza alleges as the basis for wrongdoing and
retaliation on Odom’s part in this case.9 Put another way, even if the underlying conduct
by Odom in the Eastern District litigation and this case is not identical (i.e., regulation of the
labeling of foreign seafood (Eastern District litigation) versus monitoring of seafood for the
presence of harmful antibiotics (present case)), the issue of discrimination against (and
undue burden relating to) foreign commerce in violation of the dormant Commerce Clause
is the common thread that renders the Eastern District litigation relevant to this matter. In
short, since it is alleged that the Eastern District litigation put Odom on notice that his
conduct in this case was unconstitutional, Piazza is entitled to discover information relating
to that case which could substantiate that allegation. The Department’s discussion, in its
motion for reconsideration, of the doctrine of qualified immunity and how it should allegedly

9

The Department posits the following question, in its motion for reconsideration: “Since Piazza
never complained about prior sets of similarly worded emergency regulations that were enacted and
enforced prior to the Eastern District/Fifth Circuit litigation, how was either Bob Odom or the Department,
or the Department’s legal counsel, J. Marvin Montgomery, to know that Piazza considered its actions and
enactments to be in violation of Piazza’s constitutional rights?” See, R. Doc. 98-1, p. 15. However, the
issue in this case is not whether Odom or the Department knew that Piazza considered their actions to be
illegal; the issue is whether Odom, acting on behalf of the Department, enacted the regulations with
knowledge that they violated the Commerce Clause by burdening or discriminating against foreign and
interstate commerce?

8

limit discovery with respect to the Eastern District litigation is misplaced.1011

Since the

Department has not offered any basis for finding that the undersigned’s decision relating
to the Eastern District litigation documents was clearly erroneous or contrary to law, such
decision should likewise be maintained. Finally, Piazza is also entitled to and will be

10

In the argument relating to qualified immunity, the Department contends that, at the time the
regulations in question were enacted, there was no jurisprudence in Louisiana holding that the Department
lacked the authority to stop and test imported fish for the presence of antibiotics. The Department
therefore asserts that Odom could not have known that the regulations he enacted (and the actions that
the Department took pursuant thereto) were illegal, and thus, he is entitled to qualified immunity. The
problem with the Department’s argument is that it is too limited in its perspective relative to the scope of
qualified immunity. An official is not automatically entitled to qualified immunity if there is not a case on
point declaring that his/her conduct is unconstitutional. Instead, the issue is whether the Fifth Circuit or the
Supreme Court has either addressed the precise issue in the case or an issue “sufficiently analogous that
a reasonable official would understand from its resolution” that it is illegal or unconstitutional to take an
action. Gunaca v. State of Tex., 65 F.3d 467 (5th Cir. 1995); Anderson v. Creighton, 483 U.S. 635, 107
S.Ct. 3034 (1987)(“This is not to say that an official action is protected by qualified immunity unless the
very action in question has previously been held unlawful, but it is to say that in light of the preexisting law
the unlawfulness must be apparent”); Brown v. Callahan, 623 F.3d 249 (5th Cir. 2010)(To be “clearly
established” for qualified immunity purposes, unlawfulness of the defendant’s actions must have been
readily apparent from sufficiently similar situations, but it is not necessary that the defendant’s exact act
have been illegal).
The district judge assigned to this matter denied a motion for summary judgment filed by Odom on
the basis of qualified immunity on October 20, 2010, on the basis that such motion was premature since
Piazza had sufficiently stated a claim that Odom had notice that his conduct was illegal, precluding
qualified immunity, based upon his notice of the Eastern District litigation and since no “significant
discovery” had yet occurred concerning that issue. See, R. Doc. 65, p. 4-5. Piazza is simply attempting to
conduct the discovery necessary to fully evaluate that qualified immunity issue- i.e., whether the Eastern
District litigation was “sufficiently analogous” to the conduct in the present suit that it would indeed put a
reasonable official on notice that the conduct at issue in this suit was illegal/unconstitutional. Thus,
production of documents related to the Eastern District litigation is relevant to the qualified immunity issue.
Even though counsel for the Department “implores” the Court not to require such discovery on the basis
that it “will take hours of attorney time, and the Department, and ultimately, the State taxpayer will have to
pay those costs,” the undersigned has attempted to tailor the required production as much as possible by
restricting the production to those documents that have not been previously produced to Piazza and are
not part of the public record. The undersigned further notes that expense to the Department (and
ultimately the taxpayer) would have been far less had discovery issues in this matter been timely resolved
without the necessity of the various motions that have been filed, which were brought about by the delays
and failures of the Department and/or its counsel.
11

Additionally, the Department’s argument concerning an alleged conflict of interest on the part of
Piazza’s attorneys (on the basis that an attorney with Piazza’s current law firm worked in the past with
someone who represented Odom in the Eastern District litigation) is irrelevant to this motion. The
undersigned agrees with Piazza that, if counsel for Odom or the Department want to file a motion to
disqualify Piazza’s counsel on the basis of that alleged conflict of interest, they are free to do so; however,
such conflict of interest issue has no bearing upon the issues presented by Piazza’s motion to compel.

9

awarded a reasonable amount of attorney’s fees and costs associated with defending
against this motion for reconsideration, which amount will be included within the award of
fees/costs associated with its motion to compel that the Department and its present counsel
are required to pay. Since Odom, in his individual capacity, did not join in the present
motion for reconsideration or file one on his own behalf, neither he nor his present counsel
shall be required to pay any attorney’s fees and costs associated with the present motion.
Accordingly;
IT IS ORDERED that the “Nonparty’s Motion for Reconsideration by Magistrate
Noland of Her Nondispositive Order of August 19, 2011" (R. Doc. 98) filed by nonparty,
Louisiana Department of Agriculture and Forestry, is hereby GRANTED, but that, after
reconsideration, the undersigned’s August 19, 2011 Ruling & Order (R. Doc. 95) is
nevertheless MAINTAINED as issued.
IT IS FURTHER ORDERED that the request of plaintiff, Piazza’s Seafood World,
L.L.C., for an award of the attorney’s fees and costs that it incurred in connection with this
motion for reconsideration is hereby GRANTED, and such amount is to be included in the
general award of fees/costs associated with Piazza’s motion to compel to be paid solely
by the Department and/or its counsel.
Signed in chambers in Baton Rouge, Louisiana, September 29, 2011.

MAGISTRATE JUDGE CHRISTINE NOLAND

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