Swoboda v. Manders et al
Filing
107
RULING granting Defendant's 89 Amended Motion for Judgment on the Pleadings and Plaintiff's claims of false arrest and abuse of process are dismissed. Plaintiff's 93 Motion for Reconsideration is GRANTED and the Court finds that Plaintiff has standing to bring a claim under the Louisiana Unfair Trade Practices Act. Signed by Magistrate Judge Erin Wilder-Doomes on 4/21/2016. (LLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MICHAEL SWOBODA
CIVIL ACTION
VERSUS
NO. 14-19-EWD
KARL MANDERS, ET AL.
RULING ON RENEWED MOTION FOR JUDGMENT ON THE PLEADINGS,
AMENDED MOTION FOR JUDGMENT ON THE PLEADINGS, AND MOTION FOR
RECONSIDERATION
Before the Court is a Renewed Motion for Judgment on the Pleadings1 and an Amended
Motion for Judgment on the Pleadings2 filed by Defendants, Denise Mosteller, Jeremiah A.
Pastrick, Karl Manders, Karla Bledsoe, and Continental Incorporated, Inc. (collectively,
“Defendants”) and Plaintiff’s Motion for Reconsideration.3 Each Motion is opposed.4 For the
reasons set forth herein, Defendants’ Amended Motion for Judgment on the Pleadings is
GRANTED and Plaintiff’s claims of false arrest and abuse of process are dismissed. Plaintiff’s
Motion for Reconsideration is GRANTED and the Court finds that Plaintiff has standing to bring
a claim under the Louisiana Unfair Trade Practices Act.
I.
Background
Plaintiff, Michael Swoboda (“Plaintiff”), is the president of German Sports Guns GmbH
(“GSG”), a German firearms company.5 Plaintiff alleges that Continental Incorporated, Inc.
1
R. Doc. 79.
R. Doc. 89. In this Court’s December 9, 2015 Ruling and Order, this Court deferred ruling on the sufficiency of the
allegations supporting Plaintiff’s claims for false arrest and abuse of process. Defendants’ Amended Motion for
Judgment on the Pleadings addresses those claims. Disposition of the Amended Motion for Judgment on the Pleadings
resolves all outstanding issues raised in Defendants’ Renewed Motion for Judgment on the Pleadings.
2
3
R. Doc. 93.
4
See, R. Docs. 95 and 96.
5
R. Doc. 77, ¶ 1.
1
(“Continental”) was hired by Heckler & Koch, Inc. (“H&K”) to investigate Plaintiff’s alleged
infringement of H&K’s intellectual property in its G36 Airsoft pellet gun design.6 Plaintiff alleges
that Continental’s investigation was “really a scheme to unlawfully entrap, charge, and convict”
him of a crime and thereby harm Plaintiff’s professional reputation and “further Continental’s and
H&K’s business.”7
Specifically, Plaintiff alleges that Continental’s agents and employees
improperly registered a design of the H&K G36 Airsoft gun as a trademark in Louisiana in the
name of Heckler and Koch GmbH8 and thereafter acted as potential customers from Brazil and/or
Paraguay and convinced Plaintiff to send a sample shipment of GSG products to Walker,
Louisiana, which products would then be shipped to Paraguay.9
Defendants allegedly reported to Livingston Parish Sheriff’s Office (“LPSO”) detectives
that Plaintiff was violating La. R.S. § 14:229, which prohibits the sale, possession with intent to
sell, or transfer for compensation “anything of value having a counterfeit trademark.” 10 Plaintiff
alleges that on April 19, 2013, he was arrested in Marion County, Indiana pursuant to an arrest
warrant issued by the LPSO and the 21st Judicial District Court of Louisiana11 and “kept at the
Marion County, Indiana, detention processing center for over 20 hours and then transferred to the
Marion County detention center for four nights and five days before he had the opportunity to
6
R. Doc. 77, ¶¶ 13-14.
7
R. Doc. 77, ¶ 15.
8
R. Doc. 77, ¶ 19. Plaintiff alleges that the day after Defendants accused him of violating La. R.S. § 14:229, Defendant
Pastrick “registered a purported 3-D design of the H&K ‘G36 Airsoft’ gun as an alleged trademarked ‘logo’ in the
name of Heckler & Koch GmbH (‘HKG’)” and that Defendants knew such registration was invalid because “HKG
does not own a trade dress registration registered before the U.S. Patent & Trademark Office for the firearm shape or
design covered by the HKG 3-D design registration” and “Louisiana law does not protect product designs, shapes, or
configurations.” R. Doc. 77, ¶¶ 19-21.
9
R. Doc. 77, ¶¶ 24-28.
10
R. Doc. 77, ¶¶ 17-18.
11
R. Doc. 77, ¶ 51.
2
make bail….”12 Plaintiff alleges that on June 25, 2013, “the 21st Judicial District Attorney’s Office
for the Parish of Livingston dismissed all charges against” him and “declined to prosecute him for
any criminal violations.”13
Plaintiff alleges that Defendants “regularly conspired with and acted in concert with”
federal and state agents to effectuate his unlawful arrest14 and complains that the LPSO did not
conduct an independent investigation and instead completely relied on Defendants’
investigation.15 In particular, Plaintiff alleges that Defendant Mosteller implied that third party
investigators “or even Paraguayan authorities” were involved in Defendants’ investigation,16 failed
to “divulge…that GSG had never sold firearms in Louisiana”17 and “misled the court into believing
that Mr. Swoboda was aware that the items were being shipped to Louisiana” (rather than being
routed through Louisiana to Paraguay),18 failed to divulge that “Defendants registered the
purported trademarks in Louisiana on behalf of H&K the day after they reported to LPSO that Mr.
Swoboda was violating La. R.S. § 14:229,”19 and falsely represented in an affidavit for Plaintiff’s
arrest that Plaintiff was violating H&K’s intellectual property rights and that the products sent by
GSG were counterfeit.20 Plaintiff further alleges that “when the shipment of the alleged counterfeit
goods were brought to the LPSO by Defendants, the LPSO took pictures of the alleged counterfeit
firearms and sent them to Defendant Manders, who certified that the firearms were counterfeit
12
R. Doc. 77, ¶¶ 59-60.
13
R. Doc. 77, ¶ 62.
14
R. Doc. 77, ¶¶ 34-38.
15
R. Doc. 77 ¶¶ 39-43.
16
R. Doc. 77, ¶ 46.
17
R. Doc. 77, ¶ 47.
18
R. Doc. 77 ¶ 50.
19
R. Doc. 77, ¶ 48.
20
R. Doc. 77, ¶¶ 48 & 49.
3
based on his review of the pictures. The LPSO did not independently confirm the alleged
counterfeit nature of the firearms.”21 The LPSO is not a party to this proceeding.
In a ruling issued September 30, 2015, this Court granted in part the Motion for Judgment
on the Pleadings filed by Defendants. Therein, the Court dismissed Plaintiff’s false arrest, Eighth
Amendment, false imprisonment, abuse of process, and Louisiana Unfair Trade Practices Act
(“LUTPA”) claims and granted Plaintiff leave to file an amended complaint “which alleges
specific facts to state such claims.”22
On October 23, 2015, Plaintiff filed his Amended
Complaint.23
On November 6, 2015, Defendants filed a Renewed Motion for Judgment on the
Pleadings.24 Therein, Defendants moved for judgment on the pleadings dismissing Plaintiff’s
abuse of process and LUTPA claims. In their motion, Defendants asserted that the Amended
Complaint did not “reassert [Plaintiff’s] claims for false arrest or false imprisonment.”25 In
response, Plaintiff pointed out that he was still asserting a claim for false arrest under 42 U.S.C. §
1983.26 On December 9, 2015, this Court ruled in part on the Renewed Motion for Judgment on
the Pleadings.27 The Court dismissed Plaintiff’s claim for false imprisonment.28 The Court also
dismissed Plaintiff’s LUTPA claim, reasoning that to state a claim under LUTPA, a plaintiff must
be a consumer or competitor of the defendant.29
21
R. Doc. 77, ¶ 43.
22
R. Doc. 74, p. 7.
23
R. doc. 77.
24
R. Doc. 79.
25
R. Doc. 79-1, p. 2.
26
R. Doc. 81, p. 3.
27
R. Doc. 85.
28
R. Doc. 85, p. 4.
29
R. Doc. 85, p. 5.
4
The Court deferred consideration of the
sufficiency of Plaintiff’s allegations supporting his claims for false arrest and abuse of process,
explaining that due to the structure of Plaintiff’s Amended Complaint, it was understandable that
Defendants concluded that Plaintiff had dropped his claim for false arrest.30 The Court therefore
gave Defendants “an opportunity to file an amended motion to dismiss the purported false arrest
claim….”31 Reasoning that “the sufficiency of the allegations supporting the false arrest claim are
relevant to deciding whether the plaintiff has stated a claim for abuse of process,” this Court also
deferred ruling on Defendants’ renewed motion to dismiss the abuse of process claim.32
On December 23, 2015, Defendants filed their Amended Motion for Judgment on the
Pleadings, asserting that Plaintiff still has not stated sufficient facts to support a claim for false
arrest or abuse of process.33 On January 5, 2016, Plaintiff filed a Motion for Reconsideration of
this Court’s ruling dismissing his claim under the LUTPA.34
II.
Law and Analysis
A. Judgment on the Pleadings
1. Legal Standard
“The standard for deciding a Rule 12(c) motion is the same as a Rule 12(b)(6) motion to
dismiss.” Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 180 (5th Cir. 2007). To avoid dismissal,
“a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 209 (5th Cir.
2010) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “In deciding whether the complaint
30
R. Doc. 85, p. 3.
31
R. Doc. 85, p. 4.
32
R. Doc. 85, p. 4.
33
R. Doc. 89.
34
R. Doc. 93.
5
states a valid claim for relief, [courts] accept all well-pleaded facts as true and construe the
complaint in the light most favorable to the plaintiff.” Id. citing Doe v. Myspace, Inc., 528 F.3d
413, 418 (5th Cir. 2008). Courts, however, will not accept as true “conclusory allegations,
unwarranted factual inferences, or legal conclusions.” Id. quoting, Ferrer v. Chevron Corp., 484
F.3d 776, 780 (5th Cir. 2007). A court may grant a motion for judgment on the pleadings only if
“there are no disputed issues of material fact and only questions of law remain.” Brittan Commc'ns
Intern. Corp. v. Sw. Bell Tel. Co., 313 F.3d 899, 904 (5th Cir. 2002).
2. False Arrest
Defendants argue that Plaintiff has not plead facts to show that the arrest warrant issued
by the LPSO and the 21st Judicial District Court was facially void.35 In response, Plaintiff argues
that the warrant was void on its face because it was not supported by probable cause and reiterates
his allegations regarding the LPSO’s lack of independent investigation and Defendants’ intentional
misrepresentation of facts.36
“‘Where an arrest is made under authority of a properly issued warrant, the arrest is simply
not a false arrest.’” Maier v. Green, 485 F.Supp.2d 711, 718 (W.D. La. 2007) quoting Rodriguez
v. Ritchey, 556 F.2d 1185 (5th Cir. 1977). “A claim of false arrest requires a plaintiff to
demonstrate that the arrest was made without a warrant or with a warrant void on its face.” Tassin
v. Jones, 2001 WL 946349, at * 2 (E.D. La. Aug. 20, 2001) citing Duboe v. City of New Orleans,
909 F.2d 129, 132 (5th Cir. 1990).37 Here, although Plaintiff alleges that Defendants provided
35
R. Doc. 89-1, p. 4. Specifically, Defendants assert Plaintiff has not alleged any deficiencies in the form or content
of the warrant required by Louisiana Code of Criminal Procedure article 203, that allegedly incorrect statements in a
supporting affidavit do not invalidate the warrant, and that Swoboda’s allegations that LPSO did not conduct an
independent investigation are conclusory and unsupported. R. Doc. 89-1, pp. 5-8.
36
R. Doc. 95, pp. 4-7.
37
Both parties agree that this is the standard. See, R. Docs. 89-1, p. 4 & 95, p. 4.
6
false information leading to his arrest, he has not asserted any basis upon which this Court could
find the warrant issued by the 21st Judicial Court was void on its face.38 In such a circumstance,
Plaintiff has not alleged sufficient facts to support a claim of false arrest. See, e.g., Edmond v.
Hairford, 539 So. 2d 815, 818 (La. App. 3 Cir. 1989) (“The warrant issued by the magistrate in
this case was not null and void on its face. Although the defendant falsely swore that plaintiff
committed theft of his watch, simple inspection of the warrant would not disclose the infirmity
behind the issuance of the warrant….[I]n the strict sense contemplated by our law, we doubt that
defendant’s action may be characterized as a false arrest or false imprisonment.”); Stark v. Eunice
Superette, Inc., 457 So. 2d 291, 294 (La. App. 3 Cir. 1984) (“To prove false arrest, the plaintiff
must show that the arrest was made without any legal process or warrant or under a warrant null
and void on its face. Plaintiff was arrested pursuant to a valid arrest warrant issued by the City
Court of Eunice. Plaintiff clearly cannot recover as a victim of a false arrest.”).39 Accordingly,
Defendants’ Amended Motion for Judgment on the Pleadings seeking dismissal of Plaintiff’s claim
of false arrest is GRANTED.40
38
Moreover, Plaintiff has not alleged that Defendants actually arrested him.
Plaintiff’s allegations that his arrest by the LPSO was allegedly due to Defendants’ false statements strike the Court
as more closely aligned with a potential defamation or malicious prosecution claim. See, Kennedy v. Sheriff of East
Baton Rouge, 935 So. 2d 669 & n. 20 (La. 2006) (considering the issue of conditional or qualified immunity in the
context of Plaintiff’s defamation claim against restaurant employees who made allegedly defamatory statements to
police when they reported that an occupant of a vehicle in the drive-through lane of the restaurant had attempted to
buy food with a counterfeit one hundred dollar bill). Plaintiff is making a defamation claim in this case. See, R. Doc.
77, ¶¶ 86-93.
39
Although the Court dismisses Plaintiff’s claim for false arrest, Plaintiff appears to have set forth sufficient facts in
the Amended Complaint to assert a claim for malicious prosecution. “The distinction between actions for false
imprisonment and those for a malicious prosecution are far apart. In a false imprisonment, the arrest is made either
without any legal process or warrant, or under a warrant null upon its face. In a malicious prosecution, the proceedings
are had in pursuance of legal process, maliciously and wrongfully obtained.” Barfield v. Marron, 62 So. 2d 276, 220
(La. 1952). See also, Winn v. City of Alexandria, 685 So. 2d 281, 283 (La. App. 3. Cir. 1996) (“while an action for
malicious prosecution may be brought where an individual is aggrieved by the consequences that flow from the
governing authority’s having obtained a facially valid arrest warrant, the same cannot be said of a claim for false arrest
or imprisonment, even where a peace officer’s statements giving rise to an arrest warrant are proven to be untrue.”).
The elements of a malicious prosecution claim are: “(1) the commencement or continuance of an original criminal or
civil judicial proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the
original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause
40
7
3. Abuse of Process
“The essential elements of a cause of action for abuse of process are (1) the existence of an
ulterior purpose; and (2) a willful act in the use of the process not in the regular prosecution of the
proceeding.” Duboue v. City of New Orleans, 909 F.2d 129, 132 (5th Cir. 1990) (citations
omitted). “The precise inquiry involves the misuse of a process already issued whereby a party
attempts to obtain some result not proper under the law.” Id. Importantly, “[t]he tort of abuse of
process involves the malicious use of a legal process after the process has been instituted.” Id.
See also, Laitram Machinery, Inc. v. Carnitech A/S, 884 F.Supp. 1074, 1086 (E.D. La. 1995)
(“Because [plaintiff’s] abuse of process claim involves [defendant’s] institution of the lawsuit and
not anything done…after the lawsuit was instituted, [defendant] is entitled to summary judgment
as a matter of law on the abuse of process claim under Duboue.”); Stark v. Eunice Superette, Inc.,
457 So. 2d 291, 294 (La. App. 3 Cir. 1984) (affirming trial court’s ruling in favor of defendant
for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to
plaintiff.” Kennedy v. Sheriff of East Baton Rouge, 935 So. 2d at n. 20 (La. 2006). Plaintiff has not asserted a formal
count of malicious prosecution in his Amended Complaint. However, the Amended Complaint alleges that Defendant
Mosteller intentionally misrepresented or failed to divulge pertinent facts in an affidavit for Plaintiff’s arrest in an
effort to damage Mr. Swoboda’s professional reputation by having him unlawfully arrested. R. Doc. 77, ¶¶ 45-50.
Plaintiff further alleges that Defendants knew H&K’s trademark in the 3-D design was invalid and registered same in
an effort to “use Louisiana’s criminal court process to intentionally injure Mr. Swoboda and his professional
reputation….” R. Doc. 77, ¶¶ 20-22. Plaintiff alleges that Defendants deceived him into sending the allegedly
counterfeit goods into Louisiana. R. Doc. 77, ¶¶ 25-26. Plaintiff also alleges that his arrest caused “substantial
emotional and physical distress,” and that following his arrest, the charges against him were ultimately dismissed and
his motion for expungement granted. Rec. Doc. 77, ¶¶ 60-63. Accordingly, while the Court makes no judgment
regarding Plaintiff’s ability to prove a claim for malicious prosecution, it appears that the facts upon which relief could
be granted for such a claim have been alleged in the Amended Complaint. See, Martin v. State Farm Fire and Cas.
Co., 2010 WL 1416764, at *3 (E.D. La. April 1, 2010) (“Federal Rule of Civil Procedure 8, and the relevant case law,
do not ‘require an inordinate amount of detail or precision.’ Smith v. Amedisys, Inc., 298 F.3d 434, 451 (5th Cir.2002),
quoting St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 434 (5th Cir.2000). ‘The form of the complaint is not
significant if it alleges the facts upon which relief can be granted, even if it fails to categorize correctly the legal theory
giving rise to the claim.’ Id. (emphasis added). Fed. R. Civ. Proc. 8(a) merely requires that ‘a complaint give “notice
of the circumstances which give rise to the claim,” and “sufficient information to outline the elements of [the
plaintiff's] claim or to permit inferences to be drawn that these elements exist.”’ Stewart Title Guar. Co. v. Derivaux,
No. 07–199, 2009 WL 5216050, at *3 (S.D.Miss. Dec.29, 2009), quoting Walker v. South Cent. Bell Tel. Co., 904
F.2d 275, 277 (5th Cir.1990).”)
8
finding no abuse of process where “[n]owhere is there any suggestion that defendant’s owner or
employees misused the criminal process once it was instituted.”).
Here, Plaintiff alleges that “LPSO did not conduct an independent investigation into Mr.
Swoboda and issued a warrant based solely on Defendants’ misrepresentations in the affidavit for
arrest.”41 While Plaintiff has alleged Defendants’ malicious purpose in “trump[ing] up supposed
probable cause and push[ing] law enforcement and the district attorney to arrest and prosecute Mr.
Swoboda as retribution for GSG alleging that H&K committed fraud with regard to the settlement
agreement in the Indiana litigation,”42 Plaintiff has not alleged Defendants abused any courtrelated process after he was arrested. Under such circumstances, Plaintiff has not alleged sufficient
facts to state a claim for abuse of process. Duboue v. City of New Orleans, 909 F.2d 129, 132 (5th
Cir. 1990) (although defendant improperly arrested plaintiff “out of anger,” defendant was not
liable for abuse of process because, although he “instituted the process,” defendant “did nothing
further in carrying it to its conclusion.”).43
Accordingly, Defendants’ Amended Motion for
Judgment on the Pleadings seeking dismissal of Plaintiff’s claim of abuse of process is
GRANTED.
41
R. Doc. 95, p. 8.
42
R. Doc. 95, p. 9. In his Amended Complaint, Plaintiff alleges that H&K sued GSG in an intellectual property
lawsuit in 2009 in the United States District Court, Southern District of Indiana and that the case settled in October,
2009. R. Doc. 77, ¶ 9. Plaintiff further alleges that in August, 2011, H&K sued GSG again alleging breach of the
settlement agreement. R. Doc. 77, ¶ 11.
43
Plaintiff relies on Carmouche v. Oubre, 394 So. 2d 805 (La. App. 4 Cir. 1981) for his assertion that he has stated a
claim for abuse of process. See, R. Doc. 95, p. 8. In Carmouche, plaintiff sued a deputy sheriff, alleging that defendant
falsely arrested, detained and imprisoned plaintiff based on a “long standing hatred” and without probable cause and
that defendant had an “ulterior motive and purpose in willfully using process improper in the regular administrative
handling and prosecution of a routine, single-vehicle traffic violation proceeding.” Id. at 807. To the extent
Carmouche is inconsistent with Duboue, this Court declines to follow it.
9
B. Motion for Reconsideration
“When, as here, a party’s motion to reconsider concerns an order that did not dispose of all
the claims or parties, the motion is governed by Federal Rule of Civil Procedure (‘Rule’) 54(b).”
Stewart v. Gautreaux, 2014 WL 991735, at *3 (M.D. La. Mar. 13, 2014) citing Gulf Fleet
Acquisition, LLC v. Thoma-Sea Ship Builders, LLC, 282 FRD 146, 151-52 (E.D. La. 2012). Rule
54(b) permits a court to revise an interlocutory order “at any time before entry of judgment
adjudicating all of the claims and all the parties' rights and liabilities.” Fed. R. Civ. P. 54(b);
Livingston Downs v. Jefferson Downs, 259 F.Supp.2d 471, 474–75 (M.D. La.2002) citing Zapata
Gulf Marine, Corp. v. Puerto Rico Maritime Shipping Authority, 925 F.2d 812, 815 (5th Cir.1991).
District courts have considerable discretion in deciding whether to reconsider an interlocutory
order. Stewart v. Gautreaux, 2014 WL 991735, at *3 (M.D. La. Mar. 13, 2014). “There are three
major grounds justifying reconsideration: (1) an intervening change in controlling law; (2) the
availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice.”
Wagster v. Gautreaux, 2014 WL 46638, at *2 (M.D. La. Jan. 6, 2014) citing J.M.C. v. Louisiana
Bd. Of Elementary and Secondary Educ., 584 F.Supp.2d 894, 896 (M.D. La. 2008). Here, Plaintiff
asserts that reconsideration of this Court’s previous ruling dismissing his claims under the LUTPA
based on a lack of standing is necessary to correct clear legal error.44
As noted above, this Court previously dismissed Plaintiff’s claim under the LUTPA,
reasoning that under Fifth Circuit precedent, “a private right of action under the LUTPA is limited
to direct consumers or to business competitors of the defendants.”45 In so holding, this Court
44
R. Doc. 93-1, pp. 4-6.
45
R. Doc. 85, p. 6, citing Tubos de Acero de Mexico, S.A. v. American Intl. Inv. Corp., Inc., 292 F.3d 471, 480 (5th
Cir. 2002).
10
declined to follow the Louisiana Supreme Court’s plurality opinion in Cheramie Services, Inc. v.
Shell Deepwater Production, Inc., 35 So.3d 1053 (La. 2010).
The Court agrees with Defendants that it is not “required to follow” Cheramie.46 However,
the Court now finds that its previous dismissal based on pre-Cheramie Fifth Circuit precedent
regarding standing ignored the “bedrock principles of Erie v. Tompkins, 304 U.S. 64 (1938), which
require a federal court sitting in diversity to apply the law of the state as declared by its legislature
or the state’s highest court.” Burgers v. Bickford, 2014 WL 4186757, at 3 (E.D. La. Aug. 22,
2014). “Thus, for a federal court the proper inquiry is not whether Cheramie is controlling
authority in light of its plurality status but rather how the decision factors into the Erie ‘guess’ that
this Court must make when applying state law. In the realm of Erie, Cheramie is not irrelevant
even if the state’s lower courts would consider it non-binding.” Id. Plaintiff correctly points out
that following Cheramie, Louisiana appellate courts as well as the vast majority of federal district
courts have followed the plurality opinion and found that private parties have a right of action
under the LUTPA.47 Accordingly, while Cheramie may not be binding upon this Court, it is
instructive to the issue of standing.
In light of Cheramie, as well as the Louisiana Court of Appeal decisions following same,
the Court finds that Plaintiff has standing to assert a claim under the LUTPA. See, e.g., First
American Bankcard, Inc. v. Smart Business Tech., Inc. et al., 2016 WL 1437165, at *9 (E.D. La.
April 12, 2016) (“In light of Cheramie, the Court finds that Plaintiff does have standing to bring
its LUTPA claim.”); Max Access, Inc. v. Gee Cee Company of La, Inc., 2016 WL 454389, at *4
(E.D. La. Feb. 5, 2016) (“Under the expanded understanding of LUTPA standing signaled to in
46
R. Doc. 93-1.
47
R. Doc. 93-1, pp. 5-6.
11
Cheramie, it would seem the statute applies to defendants’ claim.”). Accordingly, Plaintiff’s
Motion for Reconsideration is GRANTED.48
III.
Conclusion
For the reasons set forth herein, Defendants’ Amended Motion for Judgment on the
Pleadings49 is GRANTED and Plaintiff’s claims of false arrest and abuse of process are dismissed.
Plaintiff’s Motion for Reconsideration50 is GRANTED and the Court finds that Plaintiff has
standing to bring a claim under the Louisiana Unfair Trade Practices Act.
Signed in Baton Rouge, Louisiana, on April 21, 2016.
S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE
48
The Court has no opinion regarding Plaintiff’s ability to ultimately prove such claim.
49
R. Doc. 89. As noted above, disposition of the Amended Motion for Judgment on the Pleadings also resolves all
outstanding issues originally deferred in this Court’s December 9, 2015 Ruling and Order on Defendants’ Renewed
Motion for Judgment on the Pleadings. See, R. Doc. 79 and 85.
50
R. Doc. 93.
12
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