Whalen v. Morice

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SARAH A. WHALEN, ET AL CIVIL ACTION

VERSUS NO. 20-1265 C/W 20-1266

REF: 20-1265

MARK E. MORICE, ET AL SECTION “B”(4)

ORDER AND REASONS

Before the Court are several motions: defendant Douglas

Hammels motions for summary judgment (Rec. Docs. 127, 128, 134),

defendants Roger Caillouet and City of New Orleans’ (the “City

Defendants”) motions for summary judgment (Rec. Docs. 129, 136),

defendant Mark Morice’s motions for summary judgment (Rec. Docs.

130, 135)1 and plaintiffs’ motions for extension of time to

complete discovery (Rec. Docs. 141, 159) and to expedite such

motion (Rec. Doc. 142). Accordingly,

IT IS ORDERED that:

•

Douglas Hammel's motions for summary (Rec. Docs. 127, 128) are

GRANTED.

•

Detective Roger Caillouet and City of New Orleans’ motions

for summary judgment (Rec. Doc. 129, 136) are GRANTED.

1 Defendants previously filed individual motions to dismiss for failure to state

a claim (Rec. Docs. 66, 67, 68, 69, 71). The motions to dismiss for failure to

state a claim shall merge with the respective motions for summary judgment.

Defendants Ty Wiltz, Gerald A. Turlich, and Keith Lobrano have been voluntarily

dismissed from this action.

•

Mark Morices’s motions for summary judgment (Rec. Docs. 130,

135) are GRANTED.

•

Plaintiffs’ motion for extension of time to complete

discovery (Rec. Docs. 141, 159) are DENIED.

•

Plaintiffs’ motion to expedite their motion for extension of

time (Rec. Doc. 142) is DISMISSED AS MOOT.

•

Supplemental jurisdiction over remaining state law claims is

declined.

•

All other pending motions are declined and DISMISSED AS MOOT

per above rulings. (Rec. Docs. 66, 67, 68 and 69 and 167)

I. FACTS AND PROCEDURAL HISTORY

This action arises out of alleged personal and professional

transgressions by several Louisiana-licensed attorneys and

members of law enforcement. Plaintiff Sarah Whalen is an

attorney representing co-plaintiffs Theodore A. “Ted” Ladner,

Jr. and Ladner’s Industries Co. (collectively the “Ladner

Plaintiffs”) in a separate state lawsuit involving defendant

Mark E. Morice and his late wife Heidi Nuss. Rec. Doc. 1 at 7;

see Nuss v. Ladner’s Indus. Co., No. 2018-11691, Civ. Dist. Ct.,

Orleans Par. Ms. Nuss contracted with Ladner’s Pools to

construct a swimming pool at their home in the Lakeview

neighborhood. A dispute arose about construction of the pool

and litigation followed. Mr. Morice and defendant Douglas S.

Hammel represented Ms. Nuss.

On April 24, 2019, Whalen, in her capacity as the Ladner

Plaintiffs’ attorney, visited the Morice home to investigate

claims and document the construction site that was visible to

the public. Rec. Doc. 1 at 9. Whalen photographed the condition

of the construction site at the Morice home while standing

either on the public street or sidewalk. Id. During this time,

defendant Mark Morice confronted Whalen, took his own

photographs and videos of Whalen and her car, allegedly pursued

Whalen in his vehicle, and called 9-1-1 to report a suspicious

person. Id. at 9-11.

The New Orleans Police Department dispatched officers Roy

Shackelford, Joseph Maher, Lucretia Gantner, and defendant

Detective Roger Caillouet to the scene. Rec. Doc. 156 at 12.

When Detective Caillouet arrived, neither Whalen nor Morice were

present. Id. Detective Caillouet ran the license plate number

that Morice had provided the 9-1-1 dispatcher and marked the

incident’s disposition as “Gone on Arrival.” Id.

Plaintiffs David Bruce Spizer and Sarah Whalen are

unmarried romantic partners and are listed as co-owners of

Whalen’s vehicle. Rec. Doc. 1 at 14. On May 3, 2020, Morice

subsequently commenced a second lawsuit in state court and filed

a Motion for a Temporary Restraining Order against Whalen,

Spizer, and the Ladner Plaintiffs, id. at 17, in the Civil

District Court for Orleans Parish. Id. at 16; see Morice v.

Whalen, No. 19-4676, Civ. Dist. Ct., Orleans Par. Whalen alleges

that Detective Caillouet provided her and Spizer’s identities to

Morice after he looked up her vehicle and Morice used that

information to file his TRO against plaintiffs. Rec. Doc. 1 at

22. Morice contends that he hired his long-term private

investigator, Keith Lobrano, to determine who owned the vehicle

that was parked outside of his home taking photographs. Rec.

Doc. 156 at 15.

Morice accused plaintiffs of engaging in a pattern of

stalking, harassing, and intimidating Morice and his family. Id.

at 17. The court issued a restraining order on May 6, 2019,

enjoining plaintiffs from stalking, harassing, and intimidating

Morice and his family. Id. 24. Plaintiffs argue that the motion

for the TRO and Hammel’s statements during the state litigation

are the basis for their defamation claims against Hammel and

Morice. Rec. Docs. 62 at 13, 63 at 12.

Whalen and the Ladner Plaintiffs filed this lawsuit on

April 22, 2020; David Spizer filed his separate lawsuit that

same day, and the Court consolidated the two matters on July 7,

2020. Rec. Doc. 13. Plaintiffs allege defendants violated their

rights under 42 U.S.C. § 1983 and under the Driver’s Privacy

Protection Act; plaintiffs also accuse defendants of defamation,

invasion of privacy, abuse of process, abuse of right,

intentional infliction of emotional distress, malicious

prosecution, and general tort liability. Rec. Docs. 62, 63.

II. PARTIES’ CONTENTIONS

Plaintiffs Sarah Whalen and David Bruce Spizer assert that

(1) Morice personally contacted Detective Caillouet after calling

9-1-1 to report a suspicious person outside of his house, (2) that

Detective Caillouet transmitted the ownership information of the

vehicle to Morice as a professional courtesy because Morice is a

reserve deputy for Plaquemine Parish Sheriff’s Office, and (3)

that Morice and Detective Caillouet conspired to concoct a story

that a vehicle with plaintiffs’ license plate was involved in a

hit and run in order to justify running the license plate. Rec.

Docs. 62 at 6-7, 17; Rec. Docs. 63 at 14-18. Plaintiffs seek relief

under the DPPA and under § 1983 for these violations against

Detective Caillouet. Spizer alleges that because Detective

Caillouet conducted an “illegal, unreasonable, and warrantless

search and seizure of Spizer’s personal information” without

probable cause, Caillouet violated Spizer’s Fourth Amendment

rights. Rec. Doc. 63 at 15. He also alleges that Detective

Caillouet violated his Fourteenth Amendment right to privacy,

which amounted to a “deprivation of liberty, without due process

of law.” Id. at 15-16. Finally, Spizer seeks relief under § 1983

for the aforementioned conspiracy claim. Rec. Doc. 63 at 16.

Morice and Detective Caillouet have denied these allegations.

Morice testified that he does not believe he and Detective

Caillouet have even met before. Rec. Doc. 129-1 at 5. Further, the

Orleans Parish Communications (“OPCD”) records indicate that

Detective Caillouet was dispatched to the scene through the OPCD

dispatcher after Morice made the 9-1-1 call reporting a suspicious

person. Rec. Doc. 129-4 at 2-4, 8. Moreover, Morice admitted to

hiring Keith Lobrono, a private detective, to identify the owners

of the vehicle during his deposition for the state court

proceeding, id. at 56, and in his motion for a temporary

restraining order. Id. at 40. He then testified to hiring Lobrono

again during his deposition for the instant matter. Rec. Doc. 129-

1 at 7. Keith Lobrono swore in his affidavit that Mark Morice

called him to inquire about the ownership of the said vehicle,

Lobrono used a service called DENSPRI, LLC to retrieve the

necessary information, and then he called Mark Morice with the

information. Rec. Doc. 129-4 at 64. Lobrono also swore that he did

not receive vehicle information from Detective Caillouet or from

any other source other than DENSPRI, LLC. Id.

Detective Caillouet asserts that he did not need to justify

running a license plate when he responded to the 9-1-1 call

reporting a suspicious person and has denied authoring any reports

indicating the vehicle was involved in a hit and run. Rec. Docs.

129-1 at 8, 129-4 at 25-26, 29-30. Morice also testified that he

did not report any vehicle involved in a hit and run. Rec. Doc.

129-1 at 8. Moreover, NOPD conducted an exhaustive search for an

alleged hit and run report and found no document, report, or any

other indication regarding a hit and run for the vehicle. Rec.

Doc. 129-7.

LAW AND ANALYSIS

A. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, summary judgment is

appropriate when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986) (quoting Fed. R. Civ. P. 56(c)). See also TIG Ins. Co. v.

Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A

genuine issue of material fact exists if the evidence would allow

a reasonable jury to return a verdict for the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The

court should view all facts and evidence in the light most

favorable to the non-moving party. United Fire & Cas. Co. v. Hixson

Bros. Inc., 453 F.3d 283, 285 (5th Cir. 2006). Mere conclusory

allegations are insufficient to defeat summary judgment. Eason v.

Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).

The movant must point to “portions of ‘the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any,’ which it believes

demonstrate the absence of a genuine issue of material fact.”

Celotex, 477 U.S. at 323. If and when the movant carries this

burden, the non-movant must then go beyond the pleadings and

present other evidence to establish a genuine issue. Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). However, “where the non-movant bears the burden of proof

at trial, the movant may merely point to an absence of evidence,

thus shifting to the non-movant the burden of demonstrating by

competent summary judgment proof that there is an issue of material

fact warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d

616, 618 (5th Cir. 1994). “This court will not assume in the

absence of any proof that the nonmoving party could or would prove

the necessary facts, and will grant summary judgment in any case

where critical evidence is so weak or tenuous on an essential fact

that it could not support a judgment in favor of the [non-movant].”

McCarty v. Hillstone Rest. Grp., 864 F.3d 354, 357 (5th Cir. 2017).

B. The Driver’s Privacy Protection Act (“DPPA”)

Detective Caillouet asserts that (1) his actions constituted

a “permissible use” and (2) he never disclosed any information

regarding the license plate look up to Mark Morice. To state a

claim under DPPA, a plaintiff must allege (1) a defendant knowingly

obtained, disclosed, or used personal information; (2) from a motor

vehicle record; (3) for a purpose not permitted. 18 U.S.C. §

2724(a); Taylor v. Acxiom Corp., 612 F.3d 325, 335 (5th Cir. 2010).

Under DPPA, disclosure of personal motor vehicle information is

generally prohibited, but there are “permissible uses” of such

information, including: “For use by any … law enforcement agency,

in carrying out its functions …” 18 U.S.C. § 2721(b).

Plaintiffs aver that there is a genuine issue of fact as to

the source of the motor vehicle information but provides nothing

more than conjecture and unsubstantiated allegations to refute the

overwhelming evidence defendants provided. First and foremost,

Detective Caillouet was on-duty, working an NOPD overtime shift

for the Lakeview Crime Prevention District when he was dispatched

by OPCD to respond to Mark Morice’s 9-1-1 call and it was

permissible for him to look up the ownership information for the

license plate of the vehicle involved. See Darling v. Falls, 236

F. Supp. 3d 914, 923 (M.D.N.C. 2017). Detective Caillouet needed

no other justification to look up the license plate after Morice

reported a suspicious person photographing his house and provided

the make and model of the car and the car’s license plate number.

Plaintiffs try to link the proximity in time Detective Caillouet

logs the incident in his daily activity report to the timestamp of

Morice locating YouTube videos featuring Whalen and photographing

the computer screen showing her image to prove that Detective

Caillouet must have shared the plaintiffs’ information with

Morice. Rec. Doc. 136 at 7. The latter conclusions were whether

Morice was forthcoming during his depositions is not at issue here.

The Court does consider that Morice may have known Whalen’s

identity before getting the car owner’s information from Lobrano

as Whalen is the counsel of record in the pool case involving

Morice’s wife. It does not take a stretch of the imagination to

assume Morice may have recognized Whalen at that time.

Further, Detective Caillouet was acting in his capacity as a

law enforcement officer and was “carrying out [his] functions”

when he answered OPCD’s dispatch. His actions were appropriate

under the circumstances and permissible under the DPPA.

Plaintiff’s speculative theory regarding how Morice received

ownership information from the license plate lookup is unsupported

and irrelevant.

However, assuming Detective Caillouet provided the

information to Morice, Detective Caillouet is entitled to

qualified immunity. To overcome qualified immunity, plaintiffs

must prove that (1) the official violated a statutory or

constitutional right, and (2) that the right was “clearly

established” at the time of the challenged conduct. Morgan v.

Swanson, 659 F.3d 359, 371 (5th Cir. 2011). The Eleventh Circuit,

in Watts v. City of Miami, held that it “is not obviously clear

that an officer obtaining information for his own use is not within

the permissible use” of the DPPA. Watts v. City of Miami, 679 Fed.

App’x 806, 809 (11th Cir. 2017). Moreover, it is well established

that “not every disclosure of personal information will implicate

the constitutional right to privacy” and the “personal rights found

in the guarantee of personal privacy must be limited to those which

are fundamental or implicit within the concept of ordered

liberty.” Cooksey v. Boyer, 289 F.3d 513, 515-16 (8th Cir. 2002)

(internal quotation marks omitted). “[T]o violate the

constitutional right of privacy the information disclosed must be

either a shocking degradation or an egregious humiliation to

further some specific state interest, or a flagrant breach of a

pledge of confidentiality which was instrumental in obtaining the

personal information.” Id. at 516 (internal quotation marks

omitted). Both the Fourth Circuit and Eleventh Circuit have found

no constitutional right to privacy in the information protected by

the DPPA. See Pryor v. Reno, 171 F.3d 1281, 1288 n.10 (11th Cir.

1999), rev’d on other grounds, 528 U.S. 1111 (2000); Condon v.

Reno, 155 F.3d 453, 464-65 (4th Cir. 1998), rev’d on other grounds,

528 U.S. 141 (2000). To overcome the qualified immunity defense,

plaintiffs would have to show that no reasonable officer in

Detective Caillouet’s position could have believed that he was

accessing plaintiffs’’ driver’s information for a permissible use

under the DPPA. Watts v. City of Miami, 679 Fed. App’x 806, 810

(11th Cir. 2017). Plaintiffs failed to do so.

C. Remaining claims against all defendants

Subject matter jurisdiction in this matter is based on the

allegation that that Detective Caillouet and Mark E. Morice

violated the Driver’s Privacy Protection Act (“DPPA”). Because

plaintiff’s remaining constitutional claims are all predicated on

Detective Caillouet furnishing Morice with information ordinarily

protected under the DPPA, has brought nothing more than tenuous

evidence to refute the overwhelming testimony, official reports,

and affidavits that Detective Caillouet and Mark Morice did not

act in any prohibitive manner, and that, as mentioned above, the

type of protected information under the DPPA does not rise to the

level of a constitutional violation, the remaining § 1983 claims

should be dismissed as well.

District courts have discretion to decline to exercise

jurisdiction over state law claims under 28 U.S.C. § 1367. Courts

may decline supplemental jurisdiction over a state law claim if:

(1) the claim raises a novel or complex issue of state law; (2)

the claim substantially predominates over the claim or claims which

the district court has original jurisdiction; (3) the district

court has dismissed all claims over which it has original

jurisdiction; or (4) in exceptional circumstances, there are other

compelling reasons for declining jurisdiction. 28 U.S.C. §

1367(c). Courts also consider the common law factors of judicial

economy, convenience, fairness, and comity. Mendoza v. Murphy, 532

F.3d 342, 347 (5th Cir. 2008). District courts generally should

decline to exercise jurisdiction over remaining state-law claims

when all federal-law claims are eliminated before trial.

Brookshire Bros. Holding v. Dayco Products, 554 F.3d 595, 603 (5th

Cir. 2009). No single factor is dispositive, but the balance of

these factors favors declining supplemental jurisdiction.2

This matter has been pending since April 2020 and discovery

is closed. While these facts are more likely to weigh in favor of

retaining jurisdiction, e.g., Mendoza v. Murphy, 532 F.3d 342, 347

(5th Cir. 2008), the particular circumstances of this case support

declining supplemental jurisdiction. Plaintiffs raised two

arguments why this court should retain supplemental jurisdiction:

(1) they would have to file a new complaint in state court and

they will endure more costs, and (2) they are concerned with a

timely disposition because they are still waiting on a ruling in

the aforementioned state court case. Neither of these arguments

are convincing.

First, there is always a cost to litigation. However, the

expended and anticipated resources in this case are not so

consequential to support retaining jurisdiction. The docket has

2 The pleadings filed in this case can be summarized as largely relitigating the

facts in the state cases regarding the construction of the pool and Morice’s

TRO. Federal courts are an inappropriate venue for such frivolous attempts to

relitigate issues decided in state court or somehow seek a review of the state

court’s rulings on questions of state law. All licensed attorneys involved in

those state cases are subject to being admonished for wasting resources and

time.

less than two hundred entries and the court has not previously

ruled on any other substantive motions. Cf. Brookshire Bros.

Holding v. Dayco Products, 554 F.3d 595 (5th Cir. 2009) (concluding

the district court abused its discretion when it declined to

exercise supplemental jurisdiction after the case had generated

more than 1,300 entries in the docket, the district court had

decided forty-one, fourteen Daubert motions, and seven other

motions in limine); see Alphonse v. Arch Bay Holdings, 618 Fed.

App’x 765 (5th Cir. Jul. 13, 2015)(finding the parties expended

substantial resources, but not to the exceptional level as

Brookshire Bros. Holding). Further, plaintiffs have belatedly

identified expert witnesses or submitted late expert reports

beyond court–ordered deadlines. See Rec. Doc. 146. There are few

fact witnesses apart from the parties themselves. Rec. Docs. 121,

122, 123, 125. Finally, a significant waste of resources was of

the parties’ own making, i.e., not fully cooperating with each

other during discovery, failing to confer to prepare the pre-trial

order, failing to submit joint bench books as directed, and failing

to meet expert identification and reporting deadlines as noted

above. Rec. Docs. 119, 146, 166, 179.

Further, retaining jurisdiction does not provide the type of

relief for the separate pending state court action. Plaintiffs

have the right to seek appellate review for the disposition of

their state case. The filing a second action in state court has

no bearing on the first. Law Indus. v. Bd. of Supervisors, 300

So.2d 21, 26 (La. App. 1 Cir. 03/02/20); (“Mandamus, codified in

La. C.C.P. art. 3862, et seq., is an extraordinary remedy, to

be applied where ordinary means fail to afford adequate

relief.” (citing Hoag v. State, 889 So. 2d 1019, 1023 (La.

12/01/04). Lastly, the foundation for this action arose

primarily from conduct redress-able under state laws.

Accordingly, this Court declines to exercise supplemental

jurisdiction and the remaining state law claims are best addressed

in the forum from which they arose.

D. Extending Discovery

Finally, plaintiffs ask this Court to extend discovery for

the limited purpose of obtaining NOPD recordings of Whalen visiting

the 3rd Precinct to corroborate her allegation that she was

informed that NOPD’s computer systems indicated that her

vehicle was involved in a “hit and run.” Rec. Doc. 141-1.

The City Defendants timely responded to written discovery stating no

such recordings were found for the time period plaintiff

allegedly visited the precinct between August 27, 2019 and

September 5, 2019, as requested. Rec. Doc. 159-1. In fact,

defendants widened the search parameters and looked for footage of

any such interaction across an entire month between August 20, 2019

to September 20, 2019 as well as from November 4, 2019 to November

11, 2019 and found no footage of Whalen visiting the 3rd Precinct.

Rec. Doc. 159 at 2. The City Defendants maintain that they are

unable to produce video footage or police reports—original or

supplemental—that do not exist and never existed.

This Court has the inherent power to enforce its scheduling

order and FRCP 16(b) provides that a scheduling order “may be

modified only for good cause and with the judge’s consent.” Valero

Mktg. & Supply Co. v. M/V ALMI Sun, No. 14-cv-2712, 2016 WL

9412610, at *1 (E.D. La. January 8, 2016) (citing Flaska v. Little

River Marine Constr. Co., 389 F.2d 885, 886 & n.3 (5th Cir. 1968));

Fed. R. Civ. P. 16(b)(4). 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). In deciding whether to

grant a continuance, the Court's “judgment range is exceedingly

wide,” for it “must consider not only the facts of the particular

case but also all of the demands on counsel's time and the

court's.” Streber v. Hunter, 221 F.3d 701, 736 (5th Cir. 2000)

(internal citations omitted).

The record shows the City did exhaustive searches to locate

alleged recordings for all periods requested and beyond.

Plaintiffs have not provided supportive reasons to reopen

discovery. Moreover, any such footage would be irrelevant to this

case, because as explained above, Detective Caillouet's actions

were permissible under the DPPA and otherwise entitled to good

faith immunity. As such, good cause does not exist to extend

discovery on this issue.

New Orleans, Louisiana, this 17th day of September, 2021

_____________________________________

SENIOR UNITED STATES DISTRICT JUDGE