Thomas et al v. Chambers et al, No. 2:2018cv04373 - Document 217 (E.D. La. 2019)
Court Description: ORDER AND REASONS: For the foregoing reasons set forth in the document, the Magistrate Judge's 147 order denying defendants' 33 motion for leave to file a supplemental and amending answer is set aside, and defendants' 33 motion for leave to file a supplemental and amending answer is GRANTED. Plaintiffs' 208 and 210 motions are DENIED. Signed by Judge Sarah S. Vance on 5/28/2019. (mm) (NEF: MAG 4)
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Thomas et al v. Chambers et al Doc. 217 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA KIERRA THOMAS, ET AL. VERSUS CIVIL ACTION NO. 18-4373 RANDALL CHAMBERS, ET AL. SECTION “R” (4) ORD ER AN D REASON S Before the Court is (1) defendants’ objection to the Magistrate J udge’s order denying their m otion for leave to file a supplemental and am ending answer, 1 (2) plaintiffs’ m otion for relief from the Court’s order, 2 and (3) plaintiffs’ m otion to extend the deadline to depose certain individuals. 3 Because defendants’ m otion for leave to am end their answer satisfies the factors in Federal Rules of Civil Procedure 16(b) and 15(a), the Court sets aside the Magistrate J udge’s order pursuant to Rule 72(a). The Court also denies both of plaintiffs’ m otions. 1 2 3 R. Doc. 169. R. Doc. 20 8. R. Doc. 210 . Dockets.Justia.com I. BACKGROU N D On April 6, 20 18, plaintiffs filed this lawsuit against defendants Randall Cham bers, God’s Way Trucking, LLC, and Canal Insurance Com pany, for injuries plaintiffs allegedly sustained in a m otor vehicle accident on Interstate 10 . 4 Plaintiffs allege that Chambers’s negligence caused their injuries, and that God’s Way is liable for their dam ages as Cham bers’s employer under the doctrine of respondent superior. 5 Canal Insurance allegedly insured the tractor-trailer Chambers was driving on the day of the collision. 6 On April 30 , 20 18, defendants filed an answer to the com plaint. 7 Defendants asserted in this answer that “[a]ll alleged dam ages and/ or injuries made the subject of this litigation were proxim ately caused solely and entirely by the negligence” of plaintiffs. 8 On J uly 2, 20 18, defendants filed a counterclaim alleging that plaintiffs’ filing of this lawsuit constituted a fraudulent m isrepresentation entitling defendants to dam ages under Louisiana law. 9 Defendants alleged 4 5 6 7 8 9 R. Doc. 1-4. Id. at 4 ¶¶ 13-14. Id. R. Doc. 4. Id. at 4. R. Doc. 13. 2 that plaintiffs intentionally caused the collision “and/ or” suffered no injuries, and that they filed a false complaint in order to recover dam ages in litigation. 10 On October 24, 20 18, the court dism issed the counterclaim because (1) it was incom patible with an assertion that defendants relied on plaintiffs’ alleged m isrepresentations, and therefore was not legally cognizable, and (2) it failed to satisfy the heightened pleading requirement of Federal Rule of Civil Procedure 9(b). 11 Two days after the Court issued this order, defendants m oved for leave to file a supplemental and am ending counterclaim . 12 The proposed amended counterclaim explained in greater detail the basis for their fraud claim. 13 Defendants asserted (1) that Cham bers “did not experience any type of im pact consistent with a m otor vehicle accident,” (2) that Cham bers only m erged into the right lane after “an unknown third vehicle swerved directly in front of him into his lane 2-3 tim es,” and (3) that shortly after merging, plaintiffs “flagged” Cham bers down and indicated that they had been in a collision. 14 Defendants further alleged that there is circumstantial evidence 10 11 12 13 14 Id. at 2 ¶ 4. R. Doc. 20 . R. Doc. 22. See R. Doc. 22-4. Id. at 2 ¶ 3. 3 supporting their allegation that plaintiffs’ claim s are fabricated. 15 Defendants asserted that plaintiffs have social or fam ilial ties to the plaintiffs in approxim ately fifteen other lawsuits involving sim ilar collisions on Interstate 10 . 16 The Court denied defendants leave to file the am ended counterclaim , because it did not rem edy the fact that their claim for fraud was not legally cognizable under Louisiana law. 17 On J anuary 14, 20 19, defendants filed a m otion for leave to file a supplem ental and am ending answer. 18 In their proposed am ended answer, defendants assert that “[a]ll alleged dam ages and/ or injuries m ade the subject of this litigation were proxim ately caused solely and entirely by the intentional acts and/ or negligence” of plaintiffs. 19 Defendants explain: Plaintiffs were aware of other sim ilar claim s brought by or on behalf their neighbors, relatives, and associates involving disputed liability sideswipe type collisions with com m ercial vehicles. Plaintiffs conspired to cause and/ or stage this incident. On or about April 24, 20 17, Plaintiffs did in fact cause and/ or stage this accident. They are now presenting a fraudulent claim arising out of the subject incident. 20 15 Id. at 2-9. Id. Defendants generally assert that the individuals involved in these other accidents are either plaintiffs’ relatives or “associates.” Id. 17 R. Doc. 37. 18 R. Doc. 33. 19 R. Doc. 33-4 at 4. 20 Id. at 9. 16 4 Defendants alternatively assert that in the event plaintiffs establish that Cham bers acted negligently, plaintiffs’ “intentional acts . . . proxim ately contributed to the occurrence of the alleged accident” and plaintiffs’ dam ages. 21 Defendants’ m otion was referred to Magistrate J udge Karen Wells Roby. 22 On April 5, 20 19, Magistrate J udge Roby denied defendants’ m otion. 23 She concluded that perm itting the amendment would be futile, because defendants’ proposed am ended answer did not state the affirm ative defense of fraud with enough particularity under Rule 9(b). 24 The discovery deadline, and the date by when the parties had to file their pretrial witness and exhibits lists, was March 18, 20 19. 25 On April 12, 20 19, plaintiffs m oved to exclude eighteen of the witnesses that defendants included on their witness list. 26 For m any of these eighteen witnesses, defendants had stated that they would testify to the following: Social m edia postings; social m edia friends, relationships with people involved in sim ilar accidents in New Orleans; com m unications with and/ or contact with Plaintiffs, before or after the alleged accident; and information regarding com m on 21 22 23 24 25 26 Id. at 5-7. See R. Doc. 33. R. Doc. 147 at 7-8. Id. R. Doc. 9. See R. Doc. 154-1. 5 facts and direct connections to sim ilar accidents in New Orleans. 27 Plaintiffs argued that testim ony regarding other allegedly staged collisions was not relevant because the Court had dism issed defendants’ counterclaim for fraud, and the testim ony was therefore m ore prejudicial than probative under Federal Rule of Evidence 40 3. 28 During the pretrial conference—which took place on April 16, 20 19— the Court discussed the adm issibility of this lay testim ony. The Court instructed defendants that evidence of nonparties’ staging collisions is adm issible only if defendants can show that (1) a nonparty adm itted that he or she staged another collision in order to bring a tort claim against another party, and (2) there is evidence that that sam e nonparty com m unicated with one or m ore plaintiff in this case around the tim e of the subject collision. 29 Defendants then filed an opposition to plaintiffs’ m otion, and in response to the Court’s order dropped all but eight of the witnesses they had previously proposed. 30 27 28 29 30 R. Doc. 127 at 2-7. R. Doc. 154-1 at 1-2. See R. Doc. 165 at 2. See R. Doc. 175. 6 On April 18, 20 19, the Court continued trial and ordered the parties to appear at a status conference. 31 The Court explained that it had learned of a federal crim inal investigation in the Eastern District of Louisiana that m ay be connected to this case, and ordered the parties to be prepared to discuss whether the case should be stayed pending the outcom e of that investigation. 32 The Court also stated that “fact and expert discovery” were closed, and that “[t]here will be no further m otion practice of any kind unless ordered by the Court.”33 On May 6, 20 19, the Court ruled on plaintiffs’ m otion to exclude lay testim ony. 34 As relevant for the purposes of the instant m otions, the Court ruled that the following witnesses could testify to at least som e issues at trial: (1) Tara Blunt, (2) Harry Dorsey, (3) Charlotte J ones, (4) Raym ond Riley, (5) Cornelius Green, and (6) J oe Schembre, an investigator with J .S. Investigations. 35 Of these witnesses, only Harry Dorsey was perm itted to testify as to the staging of other collisions not involving plaintiffs. 36 The other witnesses were allowed to testify because they have either (1) direct 31 32 33 34 35 36 R. Doc. 173. Id. Id. at 2. See R. Doc. 196. Id. at 7-12. See id. 7 knowledge of plaintiffs’ activities or movem ents on the day of the collision— such that they can testify as to plaintiffs’ claims for damages and whether they intentionally caused this specific collision—(2) direct knowledge that plaintiffs them selves have staged other collisions, or (3) had conducted interviews with other witnesses who were perm itted to testify. 37 There are presently three m otions before the Court. First, defendants object to Magistrate J udge Roby’s order denying them leave to file their am ended answer. 38 Second, plaintiffs m ove for relief from the Court’s order perm itting these lay witnesses to testify at trial. 39 Third, plaintiffs m ove to extend the discovery deadline so that they can conduct depositions of (1) Tara Blunt, (2) Harry Dorsey, (3) Charlotte J ones, (4) Raym ond Riley, (5) Cornelius Garrison, (6) a Rule 30 (b)(6) deposition of J .S. Investigations, investigator J oe Schembre’s corporate entity, (7) Robert Weber, and (8) Marlene Kennedy. 40 Neither Weber nor Kennedy are witnesses that defendants have indicated will be called at trial. 37 38 39 40 See id. R. Doc. 169. R. Doc. 20 8. R. Doc. 210 . 8 II. LEGAL STAN D ARD A party seeking to am end its pleading after the deadline set by the Court m ust show “good cause” for the amendm ent under Federal Rule of Civil Procedure 16(b). S&W Enters., LLC. v. SouthTrust Bank of Ala., N A, 315 F.3d 533, 53-36 (5th Cir. 20 0 3). “The good cause standard requires the ‘party seeking relief to show that the deadlines cannot reasonably be m et despite the diligence of the party needing the extension.’” Id. at 535 (quoting 6A Charles Alan Wright et al., Federal Practice and Procedure § 1522.1 (2d ed. 1990 )). Whether to grant or deny a continuance is within the sound discretion of the trial court. United States v. Alix, 86 F.3d 429, 434 (5th Cir. 1996). The Court’s “judgment range is exceedingly wide” when making scheduling decisions, for it “m ust consider not only the facts of the particular case but also all of the dem ands on counsel’s time and the court’s.” Streber v. Hunter, 221 F.3d 70 1, 736 (5th Cir. 20 0 0 ) (quoting HC Gun & Knife Show s, Inc. v. City of Houston, 20 1 F.3d 544, 549-50 (5th Cir. 20 0 0 )). Courts specifically consider “(1) the explanation for the failure to [tim ely m ove for leave to am end]; (2) the im portance of the [am endm ent]; (3) potential prejudice in allowing the [am endm ent]; and (4) the availability of a continuance to cure such prejudice.” S&W Enters., 315 F.3d at 536 9 (quoting Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257 (5th Cir. 1997)) (alternations in original). If the Court finds that plaintiff has dem onstrated good cause to m odify the scheduling order, it then applies the m ore liberal standard of Federal Rule of Civil Procedure 15(a) to determine whether to grant the m otion. Id. Under Rule 15(a), the Court “freely give[s] leave [to am end] when justice so requires.” Fed. R. Civ. P. 15(a). The Suprem e Court has held that “[i]f the underlying facts or circum stances relied upon by a plaintiff m ay be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the m erits.” Fom an v. Davis, 371 U.S. 178, 182 (1962). Leave to amend, however, “is by no m eans autom atic.” Halbert v. City of Sherm an, 33 F.3d 526, 529 (5th Cir. 1994). The Court considers m ultiple factors, including “undue delay, bad faith or dilatory m otive on the part of the m ovant, repeated failure to cure deficiencies by am endm ents previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of am endm ent.” Fom an, 371 U.S. at 182. 10 III. D ISCU SSION A. Obje ctio n to Ord e r D e n yin g Le ave to Am e n d The Court m ust set aside the Magistrate J udge’s order if it is “found to be clearly erroneous or contrary to law.” Fed R. Civ. P. 72(a); see also United States v. W ilson, 864 F.2d 1219 (5th Cir. 1989). Because the Court finds the order clearly erroneous, it will set it aside and perm it defendants to file their am ended answer. Defendants seek to include in their am ended answer a defense that plaintiffs conspired to, and did, intentionally cause this collision in order to bring a false claim for dam ages in court. 41 The Court m ust apply the Rule 16(b) factors to determ ine whether defendants can amend their answer after the deadline set by the Court. See S&W Enters., 315 F.3d at 536. First, defendants stated in their initial counterclaim on J uly 2, 20 18, that plaintiffs intentionally caused the collision. 42 J uly 2 was also the deadline to file am ended answers. 43 Defendants have provided no adequate explanation for why they waited until J anuary 14, 20 19 to am end their answer to reflect this contention as a defense. This factor therefore weighs against defendants. 41 42 43 R. Doc. 33-4 at 5-7, 9. R. Doc. 13. R. Doc. 9. 11 Second, the Court finds the am endm ent im portant to defendants. Defendants have m ade clear since they filed their first counterclaim that their m ain defense in this litigation is that plaintiffs intentionally caused the collision to file a lawsuit for dam ages. 44 Defendants did not state this defense in their original answer. 45 Allowing defendants to am end their answer to form ally reflect this defense is certainly im portant. This factor therefore weighs in defendants’ favor. See Tajonera v. Black Elk Energy Offshore Operations, LLC, No. 13-366, 20 15 WL 13533519, at *4-5 (E.D. La. J an. 30 , 20 15) (amended com plaint considered im portant when it included new facts that were critical to the plaintiff’s case-in-chief). Third, there is no potential prejudice to plaintiffs if the Court perm its the am endm ent. Again, plaintiffs have been on notice since J uly 20 18 that defendants planned to argue at trial that they are not liable for plaintiffs’ dam ages because plaintiffs staged this collision. Defendants also disclosed this intention throughout discovery in their interrogatory responses and during the depositions of plaintiffs. 46 It has been defendants’ contention this entire case. Plaintiffs cannot plausibly assert they are surprised by defendants’ motion to include this defense in their answer. This factor 44 45 46 See id. See R. Doc. 4. See R. Doc. 216-1; R. Doc. 216-2; R. Doc. 216-3; R. Doc. 216-4. 12 therefore weighs in defendants’ favor. See Davis v. Karl, No. 10 -875, 20 11 WL 1320 3134, at *2 (E.D. La. Feb. 2, 20 11) (no prejudice in allowing am ended answer to include new affirmative defense when the plaintiff was on notice of the defendant’s intention to argue specific defense). Finally, the availability of an additional continuance is not a factor because there is no prejudice to plaintiffs. On balance, the Rule 16(b) factors therefore support a finding that defendants should be granted leave to am end their answer. Applying the Rule 15(a) factors supports the same conclusion. While defendants may have exhibited undue delay in waiting to form ally am end their answer, there is no evidence of any bad faith or dilatory m otive on their part. See Fom an, 371 U.S. at 182. Nor have defendants repeatedly failed to cure deficiencies in am endments the Court has previously allowed. See id. And as already addressed, there is no prejudice to plaintiffs in granting the am endm ent. Magistrate J udge Roby denied defendants’ m otion on the grounds that granting leave to am end would be futile, because defendants failed to plead the affirm ative defense of fraud with the specificity required under the Federal Rules. The court will now address this conclusion. Federal Rules of Civil Procedure 8(b) and (c) set forth the pleading requirements for defenses and affirmative defenses, respectively. Fed. R. 13 Civ. P. 8(b)-(c). A “defense” is a “stated reason why the plaintiff . . . has no valid case.” Black’s Law Dictionary (10 th ed. 20 14). An “affirm ative defense” is an “assertion of facts and argum ents that, if true, will defeat the plaintiff’s . . . claim, even if all the allegations in the com plaint are true.” Id. A defendant is required to “state in short and plain term s its defenses to each claim asserted against it” and “affirm atively state any avoidance or affirm ative defense. . . .” Fed. R. Civ. P. 8(b)(1)(A) and (c)(1). In W oodfield v. Bow m an, the Fifth Circuit held that affirm ative defenses are subject to the sam e pleading requirements as a com plaint and articulated a “fair notice” standard for pleading affirm ative defenses. 193 F.3d 354, 362 (5th Cir. 1999). Under this standard, a defendant is required to plead an affirm ative defense “with enough specificity or factual particularity to give the plaintiff ‘fair notice’ of the defense that is being advanced.” Id. (citing Autom ated Med. Labs. v. Arm our Pharm . Co., 629 F.2d 1118, 1122 (5th Cir. 1980 )). Courts in this district have continued to apply W oodfield’s “fair notice” standard even after Iqbal and Tw om bly announced a higher pleading standard for com plaints. See, e.g., Harris v. USA Ins. Cos., No. 11-20 1, 20 11 WL 3841869, at *3 (E.D. La. Aug. 30 , 20 11) (noting that in Rogers v. McDorm an, 521 F.3d 381 (5th Cir. 20 0 8), the Fifth Circuit applied the W oodfield standard even after Tw om bly was decided); 14 Schlesinger v. Hasco Thibodaux, LLC, No. 13-6237, 20 14 WL 527657, at *2 (E.D. La. Feb. 7, 20 14) (same). Notwithstanding this typical pleading standard, affirm ative defenses of fraud m ust be pleaded with the particularity required by Rule 9(b). See Fisk Elec. Co. v. Fid. & Deposit Co. of Md., No. 12-953, 20 13 WL 59290 7, at *5 (E.D. La. Feb. 14, 20 13). The Magistrate J udge correctly noted that defendants cannot state an affirm ative defense of fraud. That affirm ative defense requires defendants to plead the elem ents of fraud under Louisiana law—including reliance. See, e.g., Farnham v. Electrolux Hom e Care Prod., Ltd., 527 F. Supp. 2d 584, 588 (W.D. Tex. 20 0 7) (holding that because reliance was an element of fraud under Texas law, “a disclaim er of reliance precludes a party from raising fraud as an affirm ative defense”). Defendants’ assertions throughout this litigation are incompatible with fraud, because defendants do not allege that they ever believed plaintiffs’ representations to be true. But defendants’ proposed amendment is not futile. Defendants’ assertion that plaintiffs conspired to, and did, intentionally cause this collision to recover dam ages in litigation is sim ply a defense to plaintiffs’ negligence claim . 47 This defense com plies with the pleading standard for defenses set by Rule 8(b). It is a statem ent in “short and plain terms” 47 R. Doc. 33-4 at 4 ¶ 13, 5-6 ¶ 15, 9 ¶ 27. 15 explaining why plaintiffs’ claim for negligence fails. Fed. R. Civ. P. 8(b)(1)(A). The proposed amended answer also contains a properly-pleaded affirm ative defense along these lines. Defendants assert that even if plaintiffs can establish Cham bers acted negligently, defendants should not be held fully liable for plaintiffs’ injuries because plaintiffs’ “intentional acts . . . contributed to the occurrence of the alleged accident” and their dam ages. 48 This statem ent is akin to “illegality” and “contributory negligence,” both of which are affirm ative defenses listed in Rule 8(c). See Fed. R. Civ. P. 8(c). This affirm ative defense is adequately pleaded because defendants provide plaintiffs with “fair notice” of the nature of the defense and what arguments they will m ake at trial. See W oodfield, 193 F.3d at 362. 49 Because defendants’ assertions in their proposed am ended answer satisfy the pleading standards for defenses and affirmative defenses in Rules 8(b) and (c), am endm ent is not futile. In all, because defendants’ m otion satisfies Rules 16(b) and 15(a), the Court will set aside the Magistrate J udge’s order and grant defendants leave to amend their answer. 48 Id. at 5 ¶ 14, 6-7 ¶ 16. Defendants’ answer would also satisfy the Iqbal and Tw om bly pleading standards. 49 16 B. Mo tio n to Pe rm it D e p o s itio n s o f Fact W itn e s s e s Plaintiffs m ove for leave to conduct eight depositions after the discovery deadline has passed. 50 They seek to depose (1) Tara Blunt, (2) Charlotte J ones, (3) Raym ond Riley, (4) Cornelius Garrison, (5) Marlene Kennedy, (6) Harry Dorsey, (7) a Rule 30 (b)(6) deposition of J .S. Investigations, and (8) Robert Weber. 51 Plaintiffs’ m otion is denied. As an initial m atter, plaintiffs’ m otion violates the Court’s order that “[t]here will be no further m otion practice of any kind unless ordered by the Court.”52 Plaintiffs’ m otion is denied for this reason alone. Plaintiffs’ m otion is separately denied under Rule 16(b) for each of the witnesses they seek to depose. 1. Tara Blunt, Charlotte Jones, Ray m ond Riley , Cornelius Garrison, and Marlene Kennedy First, plaintiffs have not provided an adequate explanation for their delay in deposing these individuals to justify an extension of the discovery deadline. See S&W Enters., 315 F.3d at 536. The record reflects that plaintiffs were on notice as early as October 20 18 that each of these individuals was relevant to defendants’ argum ent that this collision was 50 51 52 R. Doc. 210 . R. Doc. 210 -1 at 3. R. Doc. 173. 17 staged. On October 18, 20 18, defendants asked each plaintiff during depositions whether they knew these individuals. 53 Defendants’ briefing papers in connection with their m otion to alter the Court’s dism issal of their counterclaim also included m any of these individuals’ nam es, and linked them to other sim ilar accidents on Interstate 10 . 54 Those briefs were filed in October and Novem ber 20 18. 55 Then, on February 23, 20 19, nearly one m onth before the deadline, defendants disclosed in an interrogatory response that they intended to call each of these individuals to testify at trial. 56 In that response, defendants stated the topics on which each witness would testify. 57 The record thus reflects that before the discovery deadline, plaintiffs were aware (1) of these individuals’ identities, (2) that defendants had linked m any of them to other sim ilar collisions on Interstate 10 , and (3) of defendants intention to have them testify at trial and the m atters on which they could testify. Plaintiffs nevertheless chose not to depose them . There is 53 See R. Doc. 216-1; R. Doc. 216-2; R. Doc. 216-3. See R. Doc. 22-1; R. Doc. 32. 55 Id. 56 R. Doc. 210 -1 at 5; R. Doc. 216-4 at 2-5. 57 R. Doc. 210 -1 at 5-7. Plaintiffs contend that defendants’ disclosure was m aterially different from their witness list, which was filed into the record at the close of discovery in accordance with the Court’s scheduling order. But a com parison of the disclosure with the witness list reveals that they were substantially the sam e. See id. Plaintiffs’ argument that any insufficiency in defendants’ interrogatory responses justifies an extension of the discovery deadline is therefore unavailing. 18 54 not good cause to extend the discovery deadline in such a circum stance. See EEOC v. Prod. Fabricators Inc., 285 F.R.D. 418, 422-23 (D. Minn. 20 12) (finding no good cause to reopen discovery to allow a party to further depose a witness, when the party “m ade a strategic decision about what to ask [the witness] during his deposition”). In addition, the record suggests that plaintiffs personally know some of the individuals they now seek to depose. Defendants assert—and plaintiffs have never fully rebutted—that these individuals are either related to plaintiffs or otherwise have som e social connections to them . 58 For instance, plaintiffs Antoine Clark and Shirley Harris both stated during their depositions that they were at Tara Blunt’s apartment before the collision. 59 Plaintiffs also concede that Harris spoke to Cornelius Garrison on the day of the collision. 60 Plaintiffs have also produced to the Court a sworn affidavit from Marlene Kennedy, in which she recants statements she previously m ade regarding staging accidents. 61 This affidavit suggests that plaintiffs or their counsel have had access to Kennedy. 58 59 60 61 That plaintiffs have these See R. Doc. 21-1 (defendants’ proposed am ended counterclaim ). R. Doc. 175-1 at 7; R. Doc. 175-2 at 3-4. See R. Doc. 20 8-1 at 9. See R. Doc. 20 8-3. 19 connections reinforces that plaintiffs have no good explanation for why they were not able to depose these individuals during the discovery deadline. Plaintiffs’ stated explanation for their inability to depose these individuals before the discovery deadline is that they believed their testim ony was not relevant at trial, and therefore they did not want to “burden plaintiffs with unnecessary costs.”62 Plaintiffs state that they believed their testim ony was not relevant because the Court had dism issed defendants’ counterclaim twice, and because the Magistrate J udge denied defendants leave to am end their answer on April 5, 20 19. 63 But any suggestion that the Magistrate J udge’s order influenced plaintiffs’ decision not to depose these individuals before the discovery deadline fails, because that order was issued m ore than two weeks after the discovery deadline. 64 Plaintiffs’ argument that the Court’s prior dism issal of defendants’ counterclaim somehow justifies their decision not to depose these individuals during discovery is sim ilarly unavailing. The Court dism issed defendants’ counterclaim because they failed to state a cognizable cause of action for fraud under Louisiana law. 65 This decision was irrelevant to 62 63 64 65 R. Doc. 210 -5 at 10 . Id. at 9-10 . See R. Doc. 9; R. Doc. 147. See R. Doc. 20 at 6-8. 20 defendants’ defense that they should not be held liable for plaintiffs’ alleged injuries because plaintiffs staged the collision. Plaintiffs’ apparent m isunderstanding of the difference between a counterclaim and a defense does not constitute good cause to now conduct these depositions. As already m entioned, plaintiffs were on notice in J uly 20 18 —when defendants filed their initial counterclaim—that defendants would assert this defense at trial. 66 Defendants then m oved for leave to file their am ended answer on J anuary 14, 20 19 to form ally include this defense in their answer. 67 That m otion was pending up to and through the March 18, 20 19 discovery deadline. Plaintiffs were thus aware well before the discovery deadline that defendants intended to assert this defense at trial, but opted to m ove to exclude these individuals from testifying rather than depose them. 68 Plaintiffs are not entitled to a do-over now. Next, plaintiffs do not show the im portance of conducting these depositions. Plaintiffs argue that they are im portant (1) because the Court instructed plaintiffs’ counsel at the pretrial conference to investigate whether plaintiffs’ claims in this litigation are true, and (2) because “the truth needs 66 67 68 See R. Doc. 13. R. Doc. 33. R. Doc. 154. 21 to be uncovered so that this case can either be dism issed or so that this case can proceed to trial.”69 This is a woeful excuse to reopen discovery. Discovery is conducted for the benefit of the parties, not the parties’ attorneys. The Court’s statement to counsel was a rem inder that they should take it upon them selves to ensure that they are not representing parties who are m aking untruthful claim s. That inquiry of course should have been m ade at the beginning of this litigation, or whenever counsel enrolled in it. It is not a reason to reopen discovery. Finally, defendants would be prejudiced by granting this extension, because they would have to expend resources defending these depositions when the discovery deadline has already passed. Plaintiffs therefore have not shown good cause to depose these witnesses under Rule 16(b). 2. Harry Dorsey Plaintiffs’ m otion to depose Harry Dorsey is also denied under Rule 16(b). Plaintiffs explain that Dorsey was not disclosed as a potential witness in defendants’ interrogatory responses, and that they therefore did not learn of Dorsey’s potential testim ony until defendants filed their witness and exhibit list on March 18, 20 19. 70 March 18 was also the discovery deadline. 71 69 70 71 R. Doc. 210 -1 at 11. Id. at 10 . R. Doc. 9. 22 But defendants disclosed Dorsey’s identity in a brief filed in November 20 18, in which they identified him as part of a sim ilar collision on Interstate 10 around the time of plaintiffs’ collision. 72 Defendants’ February 23, 20 19 interrogatory responses also connected Dorsey to a sim ilar collision. 73 Plaintiffs were thus on notice before the discovery deadline that defendants believed Dorsey to be relevant to their argument that plaintiffs staged this collision, but plaintiffs still chose not to depose him. In addition, plaintiffs evidently have had access to Dorsey already, because they are in possession of his sworn affidavit in which he recants his prior statem ents regarding staging another collision. 74 This affidavit lessens the im portance of his deposition, because plaintiffs already possess im peachm ent evidence. Plaintiffs therefore have not shown good cause to extend the discovery deadline to depose Dorsey. 3. J.S. Investigations Plaintiffs also seek to conduct a Rule 30 (b)(6) deposition of J .S. Investigations. J .S Investigations was disclosed in defendants’ February 23, 20 19 interrogatory response as investigator J oe Schem bre’s corporate 72 73 74 R. Doc. 32 at 8. R. Doc. 216-4 at 11. R. Doc. 20 8-2. 23 entity. 75 Plaintiffs therefore do not have good cause to conduct this deposition for the reasons already stated. 4. Robert W eber Lastly, plaintiffs seek to depose Robert Weber, an investigator who secured a recorded statement from Marlene Kennedy in which she adm itted to having knowledge of other individuals staging collisions. 76 Plaintiffs state that the statem ent was videotaped, and in the video Weber is seen buying Kennedy food and handing her twenty dollars. 77 Plaintiffs argue that this video “raises questions” whether defendants are “paying witnesses” to offer statements favorable to defendants. 78 Plaintiffs do not state when they received this recorded statement. Defendants state in their brief that they produced it to plaintiffs on J anuary 29, 20 19. 79 Their February 23, 20 19 interrogatory response indeed refers to this recorded statement. 8 0 The record before the Court thus indicates that plaintiffs were aware of this recorded statement prior to the discovery deadline, but chose not to pursue 75 76 77 78 79 80 R. Doc. 216-4 at 7. R. Doc. 210 -1 at 12. Id. Id. R. Doc. 216 at 9. R. Doc. 216-4 at 13-14. 24 Weber’s deposition. They therefore do not have good cause to conduct this deposition for the reasons already stated. C. Mo tio n to Alte r o r Am e n d th e Co u rt’s Ord e r This m otion also violates the Court’s order that m otion practice is closed, and is dismissed on that basis alone. 81 It is also dism issed on the m erits. Plaintiffs’ m otion is brought under Rule 60 (b) to alter the Court’s prior order denying plaintiffs’ m otion to exclude certain witnesses from testifying. A district court has broad discretion to grant or deny a m otion under Rule 60 (b). Halicki v. La. Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir 1998). Under Rule 60 (b), a court m ay grant relief from a final judgm ent or order only upon a showing of: (1) m istake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in tim e to m ove for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), m isrepresentation, or other m isconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or 81 R. Doc. 173. 25 otherwise vacated, or it is no longer equitable that the judgm ent should have prospective application; or (6) any other reasons justifying relief from the operation of the judgm ent. Fed. R. Civ. P. 60 (b). The burden of establishing at least one of these reasons is on the m oving party, and the determ ination of whether that burden has been m et rests with the discretion of the Court. See Lavespere v. N iagra Mach. & Tool W orks, Inc., 910 F.2d 167, 173 (5th Cir. 1990 ). Plaintiffs’ m otion is largely a refutation of the Court’s determ ination on the merits. 8 2 Plaintiffs argue that the witnesses the Court has perm itted to testify are not relevant to this case. This is not a proper basis for a m otion under Rule 60 (b). But plaintiffs do identify one Rule 60 (b) reason in their m otion. Plaintiffs state that defendants m isrepresented evidence that they subm itted to the Court in their opposition to plaintiffs’ m otion to exclude Harry Dorsey. 8 3 See Fed. R. Civ. P. 60 (b)(3) (“m isrepresentation” by opposing party is grounds for relief from order). Defendants subm itted plaintiff Shirley Harris’s phone records to the Court, and stated that in those records was evidence that Dorsey had been in contact with Harris around the tim e of 82 83 See R. Doc. 20 8-1. Id. at 5-6. 26 the collision. Plaintiffs now subm it an affidavit from Harris, in which she states that the phone num ber defendants claim ed belonged to Dorsey—50 430 0 -3555—is actually the num ber for Harris’s cousin Danielle. 8 4 In response, defendants have produced a “Patient Inform ation” form that they state is from Dorsey’s m edical records, in which Dorsey listed his phone num ber as 50 4-30 0 -3555. 85 This is a factual dispute between the parties that can be addressed during Dorsey’s testim ony at trial. It is not grounds to alter the Court’s judgm ent. But defendants are instructed that—consistent with the Court’s prior orders—they m ust lay a foundation at trial that Dorsey was in contact with Harris around the tim e of the subject collision before eliciting testim ony about other collisions Dorsey claim s to have staged. 84 85 See R. Doc. 20 8-4. R. Doc. 215 at 5; R. Doc. 215-2. 27 IV. CON CLU SION For the foregoing reasons, the Magistrate J udge’s order denying defendants’ m otion for leave to file a supplemental and am ending answer is set aside, and defendants’ m otion for leave to file a supplem ental and am ending answer is GRANTED. Plaintiffs’ m otions are DENIED. New Orleans, Louisiana, this _ _28th _ _ _ day of May, 20 19. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 28
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