Painter v. Suire

Filing 64

RULING granting in part and denying in part 40 Motion in Limine. Signed by Judge Shelly D. Dick on 09/30/2014. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MURPHY PAINTER

CIVIL ACTION

VERSUS
NO. 12-CV-00511-SDD-SCR
KELLI SUIRE
RULING

Before the Court is Defendant Suire’s Motion in Limine, which has been opposed
by Plaintiff Painter.1 Suire has put forth nine separate arguments within the pending
Motion. For the following reasons, Suire’s Motion shall be granted in part and denied in
part.
1. Settlement of State Court Lawsuit and Painter as Public Figure
Initially Suire re-urges her argument that as the prevailing party in her state court
sexual harassment proceeding, she cannot, as a matter of law, be liable for defamation.
This issue has already been addressed by the Court in its Ruling on Suire’s summary
judgment motion.2

Additionally Suire also asserts the conclusory argument that

because Painter is a public figure and the speech at issue concerns a matter of public
affairs, his defamation claims must fail as a matter of law. As is commonly understood,
motions in limine serve the purpose of addressing threshold evidentiary concerns before
1

Rec. Doc. 40 and Rec. Doc. 48, respectively.
The Court has already ruled that while the trial court granted Suire’s temporary restraining order and
subsequently found Painter in contempt for violating it, it “never reached the merits of Suire’s request for
injunctive relief because the parties to the lawsuit entered into a settlement agreement on July 8, 2011,
and Suire ultimately dismissed her state court lawsuit.” Rec. Doc. 34. Moreover, taking judicial notice of
the Settlement Agreement filed in the Court’s record, section 4 of the Agreement states that “Plaintiff
acknowledges that neither party shall be considered a prevailing party as a result of this settlement and
release agreement.” Rec. Doc. 15-1, p.3.
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trial begins; such motions do not to address matters redressable through a 12(b)(6)
motion to dismiss or a motion for summary judgment. Considering that the dispositive
motion filing deadline has passed, this argument is not now properly before the Court.3
Accordingly, Suire’s motion is hereby denied as to these points.
2. Republication
Suire seeks the issuance of an order precluding Painter from “displaying,
showing, or informing the jury about statements made by others about Mr. Painter.”
Essentially Suire is challenging Painter’s defamation claim based on republication of her
statements made to the Office of the Inspector General (“OIG”) during the course of its
investigation. Under Louisiana law, “[a] defendant who utters a defamatory statement is
responsible for all republication that is the natural and probable consequence of the
author’s act.”4

While Suire has raised the affirmative defenses of qualified and/or

conditional privilege to those statements contained within the OIG search warrant, she,
as well as Painter, have evidentiary burdens to satisfy before this privilege defeats
these defamation claims.5 Accordingly, Suire’s Motion shall be denied as to the OIG
search warrant.
3. Ms. Craft’s Legal Representation of Suire
Plaintiff has failed to convince the Court how Defense Counsel’s (Ms. Craft’s)
testimony could potentially be relevant to the trier of fact. The testimony Plaintiff seeks

3

Deadline for filing dispositive motions was April 1, 2014.
Thompson v. Bank One of Louisiana, NA, 134 So.3d 653, 663 (La.App. 4 Cir. 2/26/14).
5
“Qualified privilege exists when a possible criminal activity is reported to the proper authorities, provided
that the report was made in good faith … The privilege’s effect is to rebut the allegations of malice or
fault and to shift the burden of proof onto the plaintiff to establish abuse of the privilege. The plaintiff may
establish the defendant’s abuse of the privilege by showing that the defendant either knew the matter to
be false or acted in reckless disregard as to its truth or falsity. The showing of mere negligence is
insufficient.” Phillips v. Lafayette Parish School Bd., 54 So.3d 739, 745 (La. App. 3 Cir. 12/8/10)(internal
citations omitted).
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to invoke through Ms. Craft will, in all likelihood, fall under the protections of the
attorney-client privilege. The fact that Ms. Craft has represented Suire in this legal
proceeding as well as others has no bearing on whether Suire defamed Painter.
Accordingly, the Court shall grant Defendant’s Motion in Limine as to proposed
testimony of defense counsel, Jill Craft’s.
4. Relevance of Painter’s Acquittal
The Court finds that, allowing Plaintiff to reference his acquittal of his criminal
charges, which did not include sexual harassment or stalking, would not be relevant in
the pending matter under Rule 401 of the Federal Rules of Evidence. The fact that
Plaintiff was acquitted of unrelated computer crimes has no bearing on whether he
stalked or sexually harassed Defendant. Furthermore, reference to the criminal trial and
acquittal may cause jury confusion.

Accordingly, the Court shall grant Defendant’s

Motion in Limine as to Painter’s ability to reference his acquittal of his separate federal
criminal charges.
5. Limiting Plaintiff to the Face of the Pleadings
This Court has already found that those statements made in Suire’s Affidavit of
Irreparable Harm filed on August 26, 2010, allegations by Suire in her Amended Petition
filed on November 3, 2010, and Suire’s discovery responses served on November 1,
2010, had not prescribed and stated a claim of defamation. Suire now seeks a motion
in limine prohibiting Plaintiff from referring to certain statements in her Amended Petition
because they are statements of opinion. The Court finds that this is a distinct legal
argument that goes directly to the merit or viability of Plaintiff’s claims, and is not

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properly before the Court now as an evidentiary issue.6 To the extent Suire argues that
she is entitled to a motion in limine preventing Plaintiff from referring to those
statements she verified in support of her injunction proceedings, her Motion is denied.
Furthermore, the Court has already ruled that Suire’s statement referred to in the OIG
search warrant application amounts to republication for purposes of defamation and
shall not be excluded. Accordingly, Defendant’s Motion to limit evidence to the face of
the pleadings is denied.
6. Evidentiary Limitation Regarding Malice
Defendant’s argument seeking the imposition of the evidentiary standard or
burden on Plaintiff necessary to prove malice is legal argument for which there is no
relief on a motion in limine. Therefore, Defendant’s Motion shall be denied on this
ground.
7. Anonymous Email
The Court has already ruled that Painter’s defamation claim arising out of the
“anonymous” email of August 6, 2010, had prescribed on its face and was dismissed.
The fact that Painter along with other witnesses received this anonymous email is of no
moment considering, at the most fundamental evidentiary level, that such an email
cannot be authenticated. For this reason alone, the Court shall grant Suire’s Motion
prohibiting Painter from introducing the August 6, 2010 email into evidence or
referencing it during trial.
6

See, Marshall Investments Corp. v. R.P. Carbone Co., 2006 WL 2644959, *3 (E.D.La. Sept. 13,
2006)(on Rule 12(b)(6) motion party argued that statements were “purely statements of opinion” and
could never be proven false. In its reasoning court explained that under Louisiana law “[a] pure statement
of opinion will not ordinarily be actionable in defamation because it can be neither true nor false.”
However, “[w]hether a particular statement is objectively capable of having a defamatory meaning is a
legal issue to be decided by the court, considering the statement as a whole, the context in which it was
made, and the effect it was reasonably intended to produce in the mind of the average listener.”).
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8. Rule 412 of the Federal Rules of Evidence
The Court finds that content of paragraph 22(b) of Plaintiff’s Supplemental and
Amending Complaint on its face does not invoke the evidentiary protections of Fed. R.
Evid. Rule 412.

To the extent Suire challenges these statements as being highly

prejudicial or irrelevant, the Court will deny her Motion without prejudice, allowing her to
reurge them at trial.
9. Painter’s Witness Lists and Exhibits
Additionally, Suire has motioned for this Court to strike those persons Painter has
listed as witnesses in the Amended Pre-Trial Order for failure comply with Rule 26 of
the Federal Rules of Civil Procedure, which governs discovery in civil matters. Rule
26(a) specifically requires parties, without awaiting a discovery request, to provide initial
disclosures to the other parties. These initial disclosures must be supplemented or
corrected “in a timely manner if the party learns that in some material respect the
disclosure or response is incomplete or incorrect.”7 Pursuant to Rule 37 of the Federal
Rules of Civil Procedure, a party who fails to provide information or identify a witness as
required by Rule 26(a) or (e), “is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
harmless or justified.” Of the four factors considered by the Fifth Circuit in determining
whether a Rule 26 violation is harmless, only one is applicable here: the explanation for
the party’s failure to disclose.8 The burden of proving harmlessness rests on the non-

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Fed.R.Civ.P. 26(e).
The Fifth Circuit has delineated the following four factors as relevant in determining whether a Rule 26
violation is harmless or substantially justified: “(1) the importance of the evidence; (2) the prejudice to the
opposing party of including the evidence; (3) the possibility of curing such prejudice by granting a
continuance; and (4) the explanation for the party’s failure to disclose.” Texas A&M Research Foundation
v. Magna Transp. Inc., 338 F. 3d 394, at 402 (5th Cir. 2003).
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disclosing party.9

In his opposition, Painter argues that he complied with Rule

26(a)(3)(A) which requires that parties provide certain evidentiary information, including
the name, address, and telephone number of each witness, to the other parties 30 days
before trial.

He further argues that Rule 26 only requires a party to update initial

disclosures when the initial information provided was incomplete or incorrect.
The Court finds that Painter’s interpretation of Rule 26 is skewed. Painter’s initial
disclosures became “incomplete” as soon as he identified additional persons, not
originally identified in his initial disclosures, who might have “discoverable information.”
Furthermore, the fact that Painter timely disclosed his witness list per Rule 26(a)(3)(A),
does not negate his failure to comply with the initial disclosure requirement of Rule
26(a)(1)(A).
To allow Plaintiff to call witnesses newly identified at this late stage in the
proceedings, essentially on the eve of trial, would be highly prejudicial to the Defendant.
Accordingly, only seven witnesses identified in Plaintiff’s initial disclosures will be
permitted testify. The May Call witnesses identified in Plaintiff’s Amended Pretrial Order,
but who were not previously disclosed or identify as required by Rule 26(a) and (e), are
hereby stricken.10
Suire asserts a similar argument as to Painter’s exhibits identified in the
Amended Pre-Trial Order.

According to Suire, Painter failed to identify 93 of the

exhibits as required in his Initial Disclosures. Suire further contends that nine of these
documents would not fall within the reasonable scope of the three areas of documents

9

In re Sambrano, 440 B.R. 702, 707 (W.D.Tx. 2010).
Suire apprised the Court that of those witnesses she sought to be stricken from Painter’s Witness List,
she had included the following seven on her own “May Call Witness” List: Winston DeCuir; Lane
Edmonston; June Gills; Lillian Rose Jones; Clarance Lymon; Chrissy McDonald; and Stacy Roberts.

10

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identified by Painter in his Initial Disclosures. In his Initial Disclosures, Painter identified
the following categories of discoverable evidence: “(1) Discovery documents and
responses to subpoenas and public records from the matter captioned Kelli E. Suire v.
Murphy Painter, 19th Judicial District Court, No. 594,400; (2) Various news media
accounts, both print and TV, related to Ms. Suire’s allegations against Mr. Painter; and
(3) Any and all documents related to the Office of Inspector General’s investigation of
Mr. Painter.”11 Once again, Rule 26 governs this discovery issue.
The Court finds that because the three categories Painter used to describe his
exhibits in his Initial Disclosures are broad, they arguably encompass a majority of
those exhibits he identified in the Amended Pre-Trial Order. Relevance and
admissibility, to the extent challenged, will be determined at trial.
The Court does, however, find that the following exhibits do not fall within the
Plaintiff’s initial disclosure and are excluded: (14) July 28, 2010 public records request
by Chris Nakamoto; (20) August 6, 2010 Anonymous complaint submitted to Painter
and local media; (23) November 14, 2012 letter from Jill Craft to U.S. Attorney Patricia
Jones; (26) Transcript of hearing, along with associated, pleadings and exhibits on
Defendant’s Exception of No Right of Action in the matter of Kling v. Louisiana
Department of Revenue, 19th JDC, No. 602, 141; (27) Pleadings, transcripts, orders,
discovery responses, minutes, docket entries, etc. from the matter captioned Murphy
Painter v. State of Louisiana, 19th JDC, No. 604, 308; (28) Pleadings, exhibits,
transcripts, orders, discovery responses, minutes, docket entries, etc. from the matter
captioned United States v. Painter, E.D. La. No. 12-087; (33) Facebook postings by Ms.
Suire; (36) Internet service provider documentation regarding the owner’s identity of
11

Rec. Doc. 40-2, p. 3.

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[e-mail] and associated IP addresses; and (37) Surveillance video
of Louisiana State Library on August 6, 2010.12 The Court further finds that Painter’s
Exhibits (7)(a)(1), (19), and (39) which contain the language “including, but not limited
to” shall be limited to those specific documents that are identified therein.
Wherefore, for the foregoing reasons, Defendant Suire’s Motion in Limine is
hereby GRANTED IN PART, and DENIED IN PART.13

Signed in Baton Rouge, Louisiana, on 30th day of September, 2014.

S
JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

12

The Court was inclined to exclude the following exhibit as well; however, because this exhibit is listed
on Defendant’s exhibit list she will not be prejudiced by allowing it to remain on Painter’s Exhibit List: (13)
July 21, 2010 Email between Ms. Suire and WBRZ personnel regarding Mr. Painter’s records. See, Rec.
Doc. 38, p. 9.
13
Rec. Doc. 40.
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