# Whalen v. Morice

> District Court, E.D. Louisiana · September 17, 2021

URL: https://www.frixlaw.com/law-library/cases/10187057

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** September 17, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10187057

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10187057. Public record. Not legal advice.