Louisiana Cleaning Systems Inc et al v. Fontenot et al

Filing 49

ORDER: For the reasons herein, the 31 Motion to Dismiss Plaintiffs' Complaint Pursuant to FRCP 41(b) is DENIED AS MOOT. The 32 Motion to Quash Discovery Propounded by Plaintiffs is GRANTED. Signed by Magistrate Judge Patrick J Hanna on 7/12/2018. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
LOUISIANA CLEANING SYSTEMS,
INC., ET AL.

CIVIL ACTION NO. 6:17-cv-01399

VERSUS

UNASSIGNED DISTRICT JUDGE

RANDY FONTENOT, ET AL.

MAGISTRATE JUDGE HANNA
ORDER

Currently pending is the defendants’ motion to dismiss the plaintiffs’
complaint under Rule 41 of the Federal Rules of Civil Procedure. (Rec. Doc. 31).
The motion is opposed. For the following reasons, the motion is DENIED AS
MOOT.
Also currently pending is the defendants’ motion to quash discovery
propounded by the plaintiffs. (Rec. Doc. 32). The motion is opposed. For the
following reasons, the motion to quash is GRANTED.
Background
In their original complaint, plaintiffs Louisiana Cleaning Systems, Inc. and its
president, Charles Nugent, asserted claims against the City of Eunice, Eunice mayor
Scott Fontenot, Eunice police chief Randy Fontenot, and two unidentified police
officers. The plaintiffs alleged that Louisiana Cleaning Systems is in the business
of selling vacuum cleaners door-to-door, that they attempted to obtain a permit to
sell door-to-door in Eunice, and that they were unable to obtain a permit because a

city ordinance bans such sales. The plaintiffs also alleged that they were harassed
by Eunice police officers while attempting to sell their products and that Mr. Nugent
was falsely arrested in June 2017.
The plaintiffs contended that the defendants are liable under 42 U.S.C. § 1983
for violation of the First and Fourteenth Amendments to the United States
Constitution, that Mr. Nugent’s arrest and imprisonment violated Louisiana state
law, and that the ordinance forbidding door-to-door sales is unconstitutional. They
sought a declaration that the ordinance is unconstitutional, an injunction against
enforcement of the ordinance, and the recovery of compensatory damages.
The defendants responded to the plaintiffs’ complaint with a motion to dismiss
for failure to state a claim. (Rec. Doc. 12). The Magistrate Judge recommended that
the motion be granted in part and denied in part and that the plaintiffs be allowed to
amend their complaint. (Rec. Doc. 23). Those recommendations were adopted in
the District Court’s judgment of February 27, 2018. (Rec. Doc. 24).
When more than three months went by without an amended complaint having
been filed, the defendants filed the instant motion to dismiss on June 14, 2018,
arguing that the plaintiffs’ failure to promptly file an amended complaint was a valid
basis for dismissal of the lawsuit under Fed. R. Civ. P. 41(b), which permits
involuntary dismissal upon a plaintiff’s failure to prosecute his case or to comply
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with any order of the court. Four days later, on June 19, the plaintiffs filed a motion
for a status conference, which was granted. On June 25, the plaintiffs filed an
amended complaint. The status conference was held by the Magistrate Judge on
June 28. During the status conference, the parties briefly discussed the instant
motion to dismiss, the plaintiff’s claimed need for discovery, and the fact that an
amended complaint had been filed between the time that the motion for a status
conference was filed and the actual date of the conference. During the conference,
the defendants indicated that they would likely file a reurged motion to dismiss,
seeking the dismissal of the amended complaint, and the briefing and hearing
deadlines for that anticipated motion were addressed. Because there already were
two motions set to be heard on July 26, 2018, the Magistrate Judge indicated in the
minutes of the status conference that the anticipated motion to dismiss would also
be set for hearing on that date. (Rec. Doc. 44). However, the reurged motion to
dismiss was not filed until July 9, 2018, making it difficult for the motion to be fully
briefed and considered by the court before the proposed hearing date.
Law and Analysis
I.

The Motion to Dismiss
Rule 41(b) of the Federal Rules of Civil Procedure reads as follows: “If the

plaintiff fails to prosecute or to comply with these rules or a court order, a defendant
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may move to dismiss the action or any claim against it.” The rule goes on to explain
that a dismissal under Rule 41(b) is an adjudication on the merits, requiring that the
suit be dismissed with prejudice. Dismissal with prejudice is an extreme sanction.1
For that reason, the Fifth Circuit has consistently held that dismissal with prejudice
is warranted only when a clear record of delay or contumacious conduct by the
plaintiff exists and a lesser sanction would not better serve the interests of justice.2
The instant motion to dismiss was premised on the plaintiffs’ having failed to
amend their complaint after having been granted leave to do so. But no firm deadline
for amending the complaint was set forth in either the Magistrate Judge’s report and
recommendation or in the District Court’s judgment. Therefore, there is no basis for
concluding that the plaintiffs failed to comply with the court’s order. There also is
no evidence of contumacious conduct or any intentional attempt to delay these
proceedings. In their opposition to the motion, the plaintiffs explained that they
experienced great difficulty obtaining the names of the officers involved in Mr.
Nugent’s arrest, and this accounted for their delay in filing the amended complaint.
Furthermore, the plaintiffs quickly responded to the defendants’ nudge (in the form
of the instant motion to dismiss), reminding them that the filing of an amended
1

Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980).

2

Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d at 247.

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complaint was anticipated. The plaintiffs promptly sought the involvement of the
Magistrate Judge by requesting a status conference. More important, with the filing
of the amended complaint, the basis for the instant motion to dismiss wholly
evaporated. Accordingly, the instant motion to dismiss will be denied as moot.
The oral argument on the instant motion to dismiss will be cancelled, and in
order to allow the plaintiffs sufficient time to respond to the defendants’ reurged
motion to dismiss, oral argument on that motion will be set for August 23, 2018.
II.

The Motion to Quash Discovery
The plaintiffs’ complaint was filed in October 2017, initiating this lawsuit. On

June 6, 2018, the plaintiffs propounded written discovery requests on the defendants.
(Rec. Doc. 32-3). But no scheduling order has yet been issued, and no conference
has yet been held under Fed. R. Civ. P. 26(f). Therefore, the defendants filed the
instant motion to quash, seeking to avoid having to respond to the discovery requests
at this time.
Fed. R. Civ. P. 26(d)(1) states that “[a] party may not seek discovery from any
source before the parties have conferred as required by Rule 26(f), except. . . by
stipulation, or by court order.” It is clear from the discussion at the status conference
of June 25, 2018, that the parties did not stipulate that discovery could be undertaken,

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and no order from the court has authorized discovery in this action. Therefore, the
plaintiffs’ written discovery requests were premature.
The plaintiffs’ response to the motion indicated that the discovery was
propounded for the sole purpose of learning the names of the police officers involved
in the arrest of plaintiff Charles Nugent so that the plaintiff could amend their
complaint to substitute the actual names of those officers for the placeholder names
used in the original complaint. Since the filing of the motion and the opposition
memorandum, however, the plaintiffs learned the names of the officers involved in
the incident and amended their complaint to name them. (Rec. Doc. 41). Therefore,
the only reason stated by the plaintiffs for the premature discovery requests no longer
exists. Accordingly, the motion to quash will be granted, and the defendants will
not be required to respond to the discovery requests until after the parties’ Rule 26(f)
conference, the deadline for which will be set forth in the scheduling order.
Conclusion
For the reasons set forth above,
IT IS ORDERED that the defendants’ motion to dismiss (Rec. Doc. 31) is
DENIED AS MOOT.
IT IS FURTHER ORDERED that oral argument on the motion to dismiss
(Rec. Doc. 31), which was previously scheduled for July 26, 2018, is CANCELLED.
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IT IS FURTHER ORDERED that oral argument on the reurged motion to
dismiss (Rec. Doc. 47) is SET for 9:30 a.m. on August 23, 2018.
IT IS FURTHER ORDERED that the defendants’ motion to quash discovery
propounded by the plaintiffs (Rec. Doc. 32) is GRANTED.
IT IS FURTHER ORDERED that oral argument on the motion to quash (Rec.
Doc. 32), which was previously scheduled for July 26, 2018, is CANCELLED.
Signed at Lafayette, Louisiana on July 12, 2018.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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