Swoboda v. Manders et al

Filing 85

RULING AND ORDER the 79 Renewed MOTION for Judgment on the Pleadings is granted in part. Plaintiff's claims for false imprisonment and violation of the Louisiana Unfair Trade Practices and Consumer Protection Law are dismissed. The court d efers ruling on the sufficiency of the allegations supporting the plaintiff's claims for false arrest and abuse of process. Therefore; Defendants shall have 14 days to file an amended motion to dismiss the plaintiff's claims for false a rrest and abuse of process, along with a supporting memorandum. Plaintiff's opposition to any amended motion filed by the defendants shall be filed within the time set in Local Rule 7(f). Since multiple memoranda addressing these issues have been previously filed, no party will be granted leave to exceed the court's page limits for any memorandum. Signed by Magistrate Judge Stephen C. Riedlinger on 12/9/2015. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MICHAEL SWOBODA
CIVIL ACTION
VERSUS
NUMBER 14-19-SCR
KARL MANDERS, ET AL

RULING AND ORDER ON
RENEWED MOTION FOR JUDGMENT ON THE PLEADINGS
Before the court is the Renewed Motion for Judgment on the
Pleadings filed by defendants Karl Manders, Denise Mosteller,
Jeremiah A. Pastrick, Karla Bledsoe, and Continental Incorporated,
Inc., d/b/a Continental Enterprises.

Record document number 79.

The motion is opposed.1
For the reasons that follow, the Louisiana Unfair Trade
Practices and Consumer Protection Law (“LUTPA”)2 claim and false
imprisonment claim are dismissed.

However, the defendants will be

given another opportunity to renew their motion to dismiss the
plaintiff’s false arrest and abuse of process claims.

Background
In a ruling issued September 30, 2015 the court granted in
part

the

defendants’

Motion

for

Judgment

on

the

Pleadings,

dismissing the plaintiff’s false arrest, violation of the Eighth
1

Record document number 81.

2

LSA-R.S. 51:1409.

Amendment, false imprisonment, abuse of process and LUTPA claims.3
Plaintiff, however, was given the opportunity to file an amended
complaint to allege specific facts to state such claims.

If the

plaintiff filed an amended complaint, the defendants could move
again to dismiss.
Plaintiff filed Plaintiff’s First Amended Complaint on October
23, 2015, which is now the operative complaint in this case.4
Defendants filed this renewed motion to dismiss the plaintiff’s
abuse of process and LUTPA claim.

Defendants noted in their

renewed motion that the plaintiff did not reassert his claims for
false arrest or false imprisonment in the amended complaint.5
Therefore, the defendants only sought dismissal of the abuse of
process and LUTPA claim.
In his opposition to the motion, the plaintiff stated the
defendants have erroneously concluded that the amended complaint
does

not

reallege

a

false

arrest

claim.

According

to

the

plaintiff, the amended complaint sets forth new factual allegations
which state claims under 42 U.S.C. § 1983 for false arrest, state
law claims for abuse of process and a LUTPA violation.

3

Record document number 74, Ruling on Motion for Judgment on
the Pleadings.
4

Record document numbers 77.

5

Record document number 79-1, Memorandum in Support of Motion
for Judgment on the Pleadings, pp. 1-2.
2

Claims for False Arrest and Abuse of Process
Plaintiff asserted that he did not drop his false arrest
claim.

Citing numerous paragraphs of the amended complaint, the

plaintiff argued that the allegations are sufficient to state a
false arrest claim under § 1983.

The allegations cited and relied

on by the plaintiff are included in the background section of the
amended complaint and under Count 1, which is entitled 42 U.S.C. §
1983 “Claim Against Private Parties.”6
Defendants filed their renewed motion based on the belief that
the plaintiff did not reassert claims for false arrest or false
imprisonment.
conclusion.

It is understandable why the defendants drew this

In the initial complaint the plaintiff alleged, as a

separate count, Count 2, and designated it as claim for “False
Imprisonment.”

The allegations set forth in paragraphs 65 through

75 asserted that the actions alleged in all of the previous
paragraphs caused the “unlawful issuance of an arrest warrant and
the subsequent unlawful arrest and detention” of the plaintiff.7
However, in the amended complaint, the plaintiff eliminated false
imprisonment as a specific count, alleged his claim for intentional
infliction of emotional distress as Count 2, and did not designate
any other count as a distinct claim for false imprisonment or false

6

Record document number 81, Opposition to Defendants’ Renewed
Motion for Judgment on the Pleadings, pp. 4-8.
7

Record document number 1, ¶ 74.
3

arrest.8
In these circumstances the defendant should be given an
opportunity to file an amended motion to dismiss the purported
false arrest claim, along with a supplemental memorandum addressing
whether the factual allegations in the amended complaint are
sufficient to state a false arrest claim.

Furthermore, 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.

Therefore, the court will defer ruling on

the renewed motion to dismiss the abuse of process claim, and the
defendants may make any additional arguments regarding dismissal of
this claim in their supplemental supporting memorandum.
Claim for False Imprisonment and LUTPA Claim
Dismissal of the claim for false imprisonment is appropriate.
Defendants stated that the plaintiff did not attempt to reassert
this claim.

Plaintiff did not oppose this argument, or point to

any facts in his amended complaint that could support such a claim.
Thus, to the extent the plaintiff alleged a separate claim for
false imprisonment it is dismissed.9
With regard to the LUTPA claim, the resolution of the motion

8

In both complaints the plaintiff alleged each numbered count
and its name in bold, large letters.
9

As noted in the court’s ruling on the first motion, the time
spent in official detention may be an element of damages caused by
a false arrest, if the plaintiff can prove that claim.
4

turns

on

a

question

of

law.

In

their

renewed

motion,

the

defendants continue to rely on Fifth Circuit decisions and district
court cases, which have consistently held that to state a claim
under LUTPA, the state law requires that the plaintiff must be a
consumer or competitor of the defendant.10 Plaintiff maintains that
the federal cases relied on by the defendants were decided before
the

Louisiana

Supreme

Court

issued

a

controlling

opinion

in

Cheramie Services, Inc. v. Shell Deepwater Prod., 09-1633 (La.
4/23/10), 35 So.3d 1053.

Plaintiff argued that this court must

rely on Cheramie, which the plaintiff claims held that the LUTPA is
not limited to consumers or competitors, but instead grants a right
of action to any person who suffers an ascertainable loss as a
result

of

another

person’s

use

of

unfair

trade

practices.

Plaintiff also relied on recent cases from this district, the
Eastern District of Louisiana, and state appellate courts which
have cited Cheramie and concluded that a right of action under
LUTPA is not limited to business competitors and consumers.11
All of the arguments and cases cited by the plaintiff have
been considered, but the court finds them unpersuasive.

Rather,

the arguments, cases and analysis set forth in the defendants’

10

Record document number 79-1, Memorandum in Support of Motion
for Judgment on the Pleadings, pp. 6-8; record document number 321, Memorandum in Support of Motion for Judgment on the Pleadings,
pp. 23-24.
11

Record document number 81, Opposition to Defendants’ Renewed
Motion for Judgment on the Pleadings, pp. 8-10.
5

initial and renewed motions to dismiss are persuasive.

They

support the conclusion that the plurality opinion in Cheramie is
insufficient to disregard the controlling Fifth Circuit decisions
holding that a private right of action under the LUTPA is limited
to direct consumers or to business competitors of the defendants.12

Conclusion
Accordingly, the Renewed Motion for Judgment on the Pleadings
filed by defendants Karl Manders, Denise Mosteller, Jeremiah A.
Pastrick, Karla Bledsoe, and Continental Incorporated, Inc., d/b/a
Continental Enterprises, is granted in part.

Plaintiff’s claims

for false imprisonment and violation of the Louisiana Unfair Trade
Practices and Consumer Protection Law are dismissed.
The court defers ruling on the sufficiency of the allegations
supporting the plaintiff’s claims for false arrest and abuse of
process.
Therefore;
IT IS ORDERED, that the defendants shall have 14 days to file
an amended motion to dismiss the plaintiff’s claims for false
arrest and abuse of process, along with a supporting memorandum.
Plaintiff’s opposition to any amended motion filed by the
defendants shall be filed within the time set in Local Rule 7(f).
Since multiple memoranda addressing these issues have been
previously filed, no party will be granted leave to exceed the

12

See, Tubos de Acero de Mexiso, S.A. v. Am. Intl Inv. Corp.,
292 F.3d 471, 480 (5th Cir. 2002).
6

court’s page limits for any memorandum.
Baton Rouge, Louisiana, December 9, 2015.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

7