Duplechain, III v. Neustrom et al
Filing
181
RULING AND ORDER denying 161 Motion for Sanctions; denying 162 Motion for Sanctions; denying 163 Motion for Reconsideration re 159 Order on Motion to Compel, Order on Motion for Attorney Fees. Signed by Magistrate Judge Carol B Whitehurst on 4/15/2019. (crt,Chicola, C)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
STEVEN DUPLECHAIN, III
CIVIL ACTION NO. 6:15-2433
VERSUS
JUDGE BRIAN A. JACKSON
MICHAEL W. NEUSTROM,
ET AL
MAGISTRATE JUDGE WHITEHURST
RULING AND ORDER
Pending before the undersigned are three motions filed by the pro se plaintiff,
Steven Duplechain, III: (1) Motion for Sanctions Against Law Office of L. Clayton
Burgess [Doc. 161];1 (2) Motion for Sanctions Against William H. Parker, III of
Allen & Gooch [Doc. 162]; and (3) Motion for Reconsideration of the undersigned’s
Ruling on Motion to Compel [Doc. 163].2 For the following reasons, all of the
motions are DENIED.
1.
Motion for Sanctions Against law Office of L. Clayton Burgess [Doc.
161]
In his motion for sanctions against Mr. Burgess, the plaintiff argues, in essence,
that Mr. Burgess did not provide him with a complete copy of his case file upon
1
This motion is unopposed, however this Court notes Mr. Burgess has been withdrawn
from this matter since July 12, 2018, and, therefore, no longer receives notifications of docket
activity – and, therefore, motions filed – in the case.
2
The latter two motions are opposed by the defendant at Doc. 174.
withdrawing as his counsel in the case. The documentation provided by the plaintiff,
however, shows that Mr. Burgess emailed to the plaintiff a file share link, which
contained a copy of the plaintiff’s case file. After the plaintiff complained that he
was having trouble downloading the file, Mr. Burgess’s office immediately
downloaded the case file to a computer disc, and made that disc available to the
plaintiff. The plaintiff now complains that the disc does not contain several “email
chains” that the plaintiff already has in his possession, and therefore, that the case file
provided by Mr. Burgess is not complete.
Rule 1.16(d) of the Louisiana Rules of Professional Conduct requires the
following:
(d) Upon termination of representation, a lawyer shall take steps to the
extent reasonably practicable to protect a client's interests, such as
giving reasonable notice to the client, allowing time for employment of
other counsel, surrendering papers and property to which the client is
entitled and refunding any advance payment of fee or expense that has
not been earned or incurred. Upon written request by the client, the
lawyer shall promptly release to the client or the client's new lawyer
the entire file relating to the matter. The lawyer may retain a copy
of the file but shall not condition release over issues relating to the
expense of copying the file or for any other reason. The responsibility
for the cost of copying shall be determined in an appropriate proceeding.
La St. Bar. Art. 16, R.P.C. Rule 1.16(d) (emphasis added).
Here, it appears that Mr. Burgess made the plaintiff’s file available to the
plaintiff in two different ways: first, by emailing a file share link to the file, and
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second, by burning the contents of the file onto a computer disc at Mr. Burgess’s
expense and making that disc immediately available to the plaintiff. Under these
circumstances, the undersigned finds Mr. Burgess complied with his duties under the
Rules of Professional Conduct to provide the plaintiff with a copy of his case file.
Regarding the plaintiff’s argument that certain emails are missing from the file, it
appears the “missing” emails are already in the possession of the plaintiff, and any
suggestion that the plaintiff is entitled to sanctions for his former counsel’s failure to
produce that which the plaintiff already has is misplaced.
Considering the foregoing, the plaintiff’s Motion for Sanctions against Mr.
Burgess and his law office is DENIED.
2.
Motion for Reconsideration of the Undersigned’s Ruling on Motion
to Compel [Doc. 163]
The plaintiff filed an “Objection” to this Court’s Ruling on his Motion to
Compel [Doc. 159], which the undersigned granted in part and denied in part on
February 15, 2019 [Doc. 159]. The plaintiff brings the motion under Rule 46 of the
Federal Rules of Civil Procedure, which states:
A formal exception to a ruling or order is unnecessary. When the ruling
or order is requested or made, a party need only state the action that it
wants the court to take or objects to, along with the grounds for the
request or objection. Failing to object does not prejudice a party who
had no opportunity to do so when the ruling or order was made.
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Fed.R.Civ.P.46.
As an initial matter, the undersigned is mindful that the Fifth Circuit has
recognized that “[b]ringing a case pro se is challenging ... [and the courts]
traditionally extend leniency to pro se litigants[.]” Alexander v. McAdams, 2017 WL
5642328, at *2 (N.D. Miss. Apr. 18, 2017), aff'd, 694 F. App'x 366 (5th Cir. 2017),
citing Jones v. FJC Sec. Servs., Inc., 612 Fed.Appx. 201, 203 (5th Cir. 2015). Because
Duplechain is proceeding pro se in this matter, the Court will construe his allegations
liberally. See, e.g., S.E.C. v. AMX, Int'l, Inc., 7 F.3d 71, 75 (5th Cir. 1993).
Although filed as an “Objection” to the undersigned’s Ruling, the motion is
deemed a motion for reconsideration of the undersigned’s ruling. Specifically, the
plaintiff seeks reconsideration of the undersigned’s ruling denying the plaintiff’s
Requests for Production Nos. 6-8. The undersigned deemed those requests satisfied.
A motion for reconsideration may be made under either Federal Rule of Civil
Procedure 59(e) or 60(b). Conklin v. Dir., TDCJ-CID, 2012 WL 1034023, at *1 (E.D.
Tex. Mar. 26, 2012), citing Shepherd v. Int'l Paper Co., 372 F.3d 326, 328 n. 1 (5th
Cir. 2004). The timing of the motion affects the standard to be applied to the motion.
If a motion for reconsideration is filed within 28 days of the judgment or order of
which the party complains, it is considered to be a Rule 59(e) motion; otherwise, it
is treated as a Rule 60(b) motion. See Shepherd, 372 F.3d at 328 n.1. Here, the
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ruling on the motion to compel was filed on February 15, 2019, and the plaintiff filed
his motion for reconsideration on February 19, 2019, well within the 28-day period
required for a Rule 59(e) motion. Accordingly, the Court will construe the motion
as one under Rule 59(e).
A Rule 59(e) motion “calls into question the correctness of a judgment.”
Templet v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004), quoting In Re
Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002). A Rule 59(e) motion is “not
the proper vehicle for rehashing evidence, legal theories, or arguments that could
have been offered or raised before the entry of judgment.” Id. at 479, citing Simon
v. United States, 891 F.2d 1154, 1159 (5th Cir.1990). Instead, “Rule 59(e) ‘serve[s]
the narrow purpose of allowing a party to correct manifest errors of law or fact or to
present newly discovered evidence.’” Id., quoting Waltman v. Int'l Paper Co., 875
F.2d 468, 473 (5th Cir.1989). “Relief under Rule 59(e) is also appropriate when there
has been an intervening change in the controlling law.” Schiller v. Physicians
Resource Grp., 342 F.3d 563, 567 (5th Cir. 2003). Most importantly, it is well-settled
that altering, amending, or reconsidering a judgment is an extraordinary remedy that
courts should use sparingly. Templet, 367 F.3d at 479, citing Clancy v. Employers
Health Ins. Co., 101 F.Supp.2d 463, 465 (E.D.La.2000).
Here, in the ruling at issue, the undersigned set forth an item-by-item ruling on
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the requests listed in the plaintiff’s motion to compel, granting some of those requests
and denying others. The plaintiff’s requests in question, Nos. 6-8, sought the
following:
REQUEST FOR PRODUCTION OF DOCUMENT NO. 6:
Please produce a copy of any incident report(s), investigative report(s)
generated regarding the allegations made subject of this suit occurring
on or about July 28, 2015 and July 29, 2015 as well as all incident report
logs.
DEFENDANT’S RESPONSE: Objection. This request calls for
information gathered in the anticipation of litigation or in preparation
for trial and is therefore outside the scope of discovery. However,
subject to the foregoing objections, please find incident report attached
hereto as LPSO00001-00002.
REQUEST FOR PRODUCTION OF DOCUMENT NO. 7:
Please produce a copy of any and all documents in your possession
which purports to bear the signature of Steven Duplechain, III.
DEFENDANT’S RESPONSE: Objection. The request is irrelevant,
overly broad, unduly burdensome, and not reasonably calculated to lead
to the discovery of admissible evidence. Subject to the foregoing
objections, please see enclosed LPSO00083-000127.
REQUEST FOR PRODUCTION OF DOCUMENT NO. 8:
Please produce a copy of any and all training curriculum for correctional
officers including but not limited to training that involves the use of
force.
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DEFENDANT’S RESPONSE: Objection. The request is irrelevant,
overly broad, unduly burdensome, and not reasonably calculated to lead
to the discovery of admissible evidence. Subject to the foregoing
objections, please see attached LPSO000128-000142.
Based upon the briefing presented to the Court at the time of the ruling, the
undersigned determined that the foregoing requests had been satisfied by the
defendants. Review of the record shows the plaintiff has presented no new evidence
in support of the arguments he raised in his original motion to compel, nor has there
been a change in the controlling law of this case. Cognizant of the principle that
altering an order is an extraordinary remedy that courts should use sparingly, the
undersigned finds no grounds upon which to alter its original ruling on these requests,
and the motion for reconsideration is therefore DENIED.
3.
Motion for Sanctions Against William H. Parker, III of Allen &
Gooch [Doc. 162]
In his motion, the plaintiff argues that Mr. Parker should be sanctioned for
failing to produce a copy of a video in an unedited format in response to discovery
request. The record shows that the videotape in question has been provided to the
plaintiff and has been in the plaintiff’s possession since October 2015. The plaintiff’s
argument that defense counsel has somehow tampered with the video is not
supported.
Thus, after a review of the record in this matter, the undersigned concludes that
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Mr. Parker has not violated the Federal Rules of Civil Procedure, including Rule 11,
in providing the videotape in the manner in which it was provided, and the motion for
sanctions against Mr. Parker is, therefore, DENIED.
Signed at Lafayette, Louisiana, this 15th day of April, 2019.
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