Louisiana Attorney Faces Trial for Federal Sex Offense

Baton Rouge attorney Christopher Young will be tried in October on federal child pornography possession and distribution charges. Federal prosecutors have alleged that Young forwarded videos of young boys performing bestiality on 33 separate occasions to 38 individuals in 2013 and 2015. Young has vehemently denied these allegations, claiming that the videos that he forwarded were merely jokes. Further, Young has alleged that he is being maliciously targeted because he refused to voluntarily cooperate with an unrelated federal corruption probe when Young was working as a lobbyist in Baton Rouge.

If convicted, Young could face a minimum of five years in prison and be compelled to register as a sex offender.

United States v. Young

Daniel P. Sullivan
dsullivan@mblb.com

Louisiana Supreme Court Affirms Finding of Age Discrimination, Reduces Damages

Plaintiff James Robinson was a campus police officer for the University of Louisiana system beginning in 1971. Plaintiff received various promotions throughout his career, reaching the rank of Major. Beginning in 1999, Plaintiff was solely responsible for the contents of the evidence room within the University of Louisiana-Lafayette Police Department (“ULLPD”). In December 2010, the police department precinct was to undergo renovations. The police chief requested that Plaintiff conduct a full inventory of the evidence room prior to any evidence being transferred. Once the evidence had been inventoried and relocated, responsibility for the evidence room was to be transferred to a younger, lower-ranking police officer. Subsequently, the evidence was relocated, but Plaintiff did not complete the inventory as requested. As a result, Plaintiff received a letter of discipline with a suspension recommended due to insubordination. Plaintiff also became the subject of an internal affairs investigation regarding missing evidence. Rather than accepting the suspension and rather than cooperating with internal affairs, Plaintiff voluntarily retired. Due to Plaintiff’s retirement, all disciplinary action was halted.

Plaintiff filed a cause of action under the federal age discrimination act and the Louisiana age discrimination act. At trial, the jury awarded damages totaling $367,918.00. In addition, Plaintiff was awarded attorney’s fees and court costs. The First Circuit Court of Appeals affirmed the jury’s finding of discrimination and affirmed the jury’s rejection of the ULLPD’s proffered, non-discriminatory basis for its actions.

On appeal to the Louisiana Supreme Court, the Court held that the jury’s finding of discrimination was not manifestly erroneous. However, the Court found that the amount of damages awarded was unsupported by the record. According to the evidence presented, Plaintiff retired at a salary of $69,000.00 per year and would have only worked a maximum of three additional years. Thus, the court affirmed the judgment, but reduced the damages to $207,000.00 ($69,000.00 annual salary x 3 years).

Robinson v. Board of University of Louisiana Systems and Joey Strum

Daniel P. Sullivan
dsullivan@mblb.com

Honorable Patricia Minaldi Announces Retirement

On July 31, 2017, United States District Court Judge Patricia Minaldi announced her retirement. Her announcement comes several months after taking medical leave for severe alcoholism; her medical leave was the result of a lawsuit filed by colleague U.S. Magistrate Kathleen Kay. Mag. Judge Kay, who has had power of attorney over Judge Minaldi’s affairs since 2007, alleged that Judge Minaldi’s physical and mental capacity obstructed her abilities to manage her personal and financial affairs. Judge Minaldi revoked Mag. Judge Kay’s power of attorney within days after suit was filed.  Judge Minaldi was nominated as District Judge in the Lake Charles division in 2003 by former President George W. Bush. Her retirement leaves the Lake Charles division without a district judge.

Megan T. Jaynes
mjaynes@mblb.com

The Need to Plead Policy Exclusions as Affirmative Defenses is Real

When denying coverage under the exclusions of an insurance policy, it is imperative that the exclusions be explicitly pled in an answer as affirmative defenses. The Court of Appeal for the Fourth Circuit of Louisiana recently affirmed the decision of the Civil District Court for the Parish of Orleans holding that the insurance policy in dispute provided coverage to the plaintiff. It was undisputed that the insurer failed to plead certain exclusions as affirmative defenses in its answer; rather, the insurer pled certain exclusions “Damage To Your Product,” “Damage To Your Work,” and “Damage To Imparted Property or Property Not Physically Injured,” and “any exclusion contained in the policy applies to preclude coverage” as affirmative defenses. The insurer asserted that by virtue into entering certain stipulations at trial to evidence related to the exclusions, its answer was enlarged to include the exclusions. The trial court and Fourth Circuit disagreed and refused to find that the defendant-insurer had properly asserted the exclusions, as they were not specifically pled as affirmative defenses.

Davis v. NOLA Home Construction, L.L.C., Garcia, and ABC Ins. Co.

Philip D. Lorio, IV
plorio@mblb.com

Baton Rouge Appeals Court Hears Oral Argument on Gov. Edwards’ LGBT-Rights Order

A three-judge panel at the Louisiana Court of Appeals for the First Circuit heard oral argument on Tuesday, August 15, 2017, on whether Governor John Bel Edwards’ April 2016 executive order to protect the rights of the LGBT community in state government was beyond the scope of his constitutionally-authorized powers.

Governor Edwards’ order seeks to ban discrimination in state government based on gender identity and sexual orientation. In December 2016, in response to a lawsuit filed by Attorney General Jeff Landry, District Court Judge Todd Hernandez ruled that Governor Edwards’ order violated Louisiana’s constitutional separation of powers. Specifically, Judge Hernandez ruled that Governor Edwards’ order unconstitutionally sought to create state law and tried to skirt Louisiana lawmakers who have opposed writing such protections into statute.

Governor Edwards’ camp claims, however, that Governor Edwards has absolute authority to implement contact terms for the executive branch of government and that his order is no different than the directives previously issued by former Louisiana governors.

The three-judge panel has not yet issued a decision.

Megan T. Jaynes
mjaynes@mblb.com

Joint Motion to Continue Does Not Interrupt Abandonment

The language of the Louisiana Code of Civil Procedure Article providing the grounds upon which a party may file a motion to dismiss on the grounds of abandonment continue to call for clarification of what constitutes abandonment. Article 561 provides that an action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years. Unsurprisingly, when a case has “sat” for three years disputes over what actions are considered steps in the prosecution or defense of a matter becomes a hot topic often presented to the courts for a resolution.

Recently the Court of Appeal for the Third Circuit of Louisiana (“Third Circuit”) affirmed the decision of the Seventh Judicial District Court for the Parish of Concordia to grant a Motion to Dismiss based on abandonment. The Third Circuit held that a joint motion to continue without date is not considered a step in the prosecution of a case, since by its very nature an indefinite continuance is not intended to hasten the matter to judgment.

Barber v. Jefferson, et al.

Philip D. Lorio, IV
plorio@mblb.com

Stipulating to Course and Scope 2.0

We previously noted the decision of the United States District Court for the Western District of Louisiana in Dennis v. Collins, 2016 WL 6637973 (W.D. La. 2016), in which the court held that a plaintiff cannot simultaneously pursue both (1) a negligence cause of action against an employee for which the employer is vicariously liable and (2) a direct negligent training and supervision cause of action against the employer when the employer stipulates that the employee was in the course and scope of employment when he committed the alleged negligence. The Middle District of Louisiana recently reached the same result on analogous facts.

In Wilcox v. Harco International Insurance, 2017 WL 2772088 (M.D. La. 2017), the defendant-driver was operating a commercial tractor-trailer owned by his employer when it collided with an automobile being driven by plaintiff. Although the underlying facts of the accident were disputed, defendants admitted that the defendant-driver was acting within the course and scope of his employment with the tractor-trailer’s owner at the time of the accident. Plaintiff asserted independent claims of negligence against both the defendant-driver and against the employer, specifically, that the employer failed to properly train the defendant-driver; failed to employ a safe and competent driver; failed to properly supervise and instruct its driver; and permitted its employees to drive while distracted. Defendants sought partial summary judgment arguing that it would constitute legal error for a jury to allocate separate fault against the employer independent of the negligence of its employee. The Court agreed both with this analysis and with the Western District’s holding in Dennis. Accordingly, the independent negligence claims against the employer-owner were dismissed with prejudice.

Wilcox v. Harco International Insurance

Eric W. Sella
esella@mblb.com

Serving, Issuing, and Quashing a Rule 45 Federal Subpoena – Oh My!

In 2013, Rule 45 of the Federal Rules of Civil Procedure was amended to allow for nationwide service of process. In other words, Rule 45(b)(2) now provides that “[a] subpoena may be served at any place within the United States.” In 2013, Rule 45 was further amended to clarify from which district court a subpoena must be issued. While prior law required a subpoena to be issued from the district court where the deposition or document production would be compelled, Rule 45 now provides that a subpoena must be issued from the court where the action is pending.

For example, if a party to a case, which is pending in the United States District Court for the Eastern District of Louisiana, seeks to serve a Rule 45 subpoena on a party or non-party who resides in Houston, Texas for a deposition to take place in a corporate office in Houston, Texas, Rule 45(a)(2) now requires that the subpoena be issued from the Eastern District of Louisiana. But, what if the party or non-party served with the subpoena seeks to quash it? In that case, Rule 45 provides that the party or non-party must file a motion to quash in “the court for the district where compliance is required.” Referencing the above example, although that subpoena was issued from the Eastern District of Louisiana (where the case is pending), the party or non-party who seeks to quash the subpoena must do so in the United States District Court for the Southern District of Texas – Houston Division, as that is the district court where compliance was required (the corporate office in Houston, Texas).

It is critical that a party/non-party be aware of the caveats of Rule 45, as issuing a subpoena from, and/or moving to quash a subpoena in, the wrong district court can cause a party/non-party much time, trouble, and expense.

Megan T. Jaynes
mjaynes@mblb.com

Per Person Bodily Injury Policy Limits

The Mississippi Supreme Court recently considered automobile insurance policy language regarding per person bodily injury liability limits. In Rylee v. Progressive Gulf Ins. Co., plaintiff’s husband was injured in a motorcycle accident. After each plaintiff, as husband and wife, received full “each person” policy limits for damages resulting from the bodily injury, they sued their own insurers for uninsured-underinsured motorist (UM) benefits, with each plaintiff claiming entitlement to separate “each person” policy limit awards.

The Mississippi Supreme Court, however, found that the clear language of the UM insurance policies specified that the policy limit for “each person” included any person’s claim based on one person’s bodily injury. The Court also cited precedent, in which it had previously found that to recover more than the “each person” limit for one person, there must be more than one person who sustained bodily injury during the accident. Accordingly, the court held that the wife’s loss-of-consortium claim fell under the policy limit for damages resulting from the husband’s bodily injury. Because the husband had already received full policy limits for damages resulting from his bodily injury, the claims against the insurers were properly dismissed on summary judgment.

Rylee v. Progressive Gulf Ins. Co.

Eric W. Sella
esella@mblb.com

Louisiana Constitution Requires Payment of Fair Market Value for Levee Improvement Servitudes

In January 2010, in an effort to upgrade the size of permanent levee servitudes, the Board of Commissioners of the South Lafourche Levee District (“BOC”) approved a resolution appropriating a permanent levee servitude affecting certain tracts of land located on the west bank of Bayou Lafourche. Chad M. Jarreau owned a 17.1 acre tract of land and was notified that one acre of that land was within the appropriated area. Jarreau received notification that he was to stop all activity on that tract immediately. In spite of this notice, Jarreau continued excavating dirt. The BOC filed for permanent injunction, and issued a check to Jarreau for $1,326.69 as compensation for value of the appropriated property. Jarreau rejected the dollar amount and filed a reconventional demand seeking compensation for the appropriated land, severance damages, economic and business losses, general damages, and statutory attorney’s fees. The district court awarded the BOC $16,956.00 for the dirt excavated by Jarreau, and awarded Jarreau $11,8609.00 as compensation for the appropriated tract, $164,705.00 for economic and business losses, $43,811.85 for attorney’s fees, and $26,490.95 for expert witness fees. The court of appeal affirmed the award for fair market value, but reversed the award of economic and business losses.

The Louisiana Supreme Court granted supervisory writ and considered what compensation, if any, to Jarreau was appropriate. The Supreme Court looked to both the United States Constitution and the Louisiana Constitution, which both contain provisions regarding the taking of private property for public use. The Louisiana Constitution provides for governmental taking of property that allows for: (1) expropriation of private property used for public purposes and (2) appropriation of private property necessary for levee or levee drainage purposes. Where expropriation refers to the taking of ownership, appropriation involves taking of merely a servitude. Under La. R.S. 38:301, where property is taken by way of a permanent levee servitude, compensation shall be the “fair market value of the property taken or destroy before the proposed use of the property or construction of the levee facilities.” The Supreme Court concluded that Jarreau was entitled to fair market value of the appropriated property at the time of the appropriation, which did not include lost profits or other severance damages. The court affirmed the award of $11,869.00 to Jarreau as compensation for the appropriated tract. Based on this award, the Court also awarded attorney’s fees of $2,635.57.

South Lafourche Levee District v. Jarreau

Daniel P. Sullivan
dsullivan@mblb.com