Petition for Writ of Certiorari — Ryan Haygood, et al., Petitioners v. Camp Morrison, et al.
Supreme Court briefDec 16, 2024
Ask Donna
What actually matters in this document.
Text
PETITION APPENDIX
Page(s)
Appendix A — Court of Appeals Order on Petition for
Rehearing En Banc
(Sept. 17, 2024) ........................................................ 1a
Appendix B — Court of Appeals Opinion
(Sept. 17, 2024) ....................................................... 3a
Appendix C— Court of Appeals Judgment
(Aug. 15, 2024) ....................................................... 18a
Appendix D — Court of Appeals Opinion
(Aug. 15, 2024) ...................................................... 20a
Appendix E— District Court Memorandum Order
(Mar. 29, 2023) ..................................................... 35a
Appendix F— Court of Appeals Judgment
(Mar. 2, 2023)
..................................................... 37a
Appendix G— District Court Memorandum Order
(Jan. 28, 2022) ..................................................... 39a
Appendix H— District Court Memorandum Ruling
(Aug. 17, 2021) ...................................................... 43a
Appendix I— District Court Order
(Aug. 17, 2021) ...................................................... 53a
Appendix J— Court of Appeals Judgment
(Sept. 4, 2020) ...................................................... 54a
Appendix K— Court of Appeals Opinion
(Sept. 4, 2020) ...................................................... 57a
Appendix L— District Court Memorandum Order
(Feb. 7, 2020)
...................................................... 59a
Appendix M— District Court Order
(May 21, 2019) ...................................................... 61a
Appendix N— District Court Order
(Mar. 14, 2019) ...................................................... 62a
Appendix O— District Court Memorandum Ruling
(Mar. 14, 2019) ...................................................... 63a
Appendix P— District Court Memorandum Ruling
(Mar. 31, 2014) ..................................................... 70a
Appendix Q— District Court Order
(Mar. 31, 2014) ...................................................... 86a
Appendix R— Supreme Court of Louisiana Order
(Dec. 14, 2012) ...................................................... 88a
Appendix S— District Court Complaint Exhibit “A”
State Court of Appeals Opinion
(Sept. 26, 2012) ........................................................ 89a
Appendix T— District Court Notice of Appeal
(Apr. 4. 2023) ........................................................ 107a
Appendix U— District Court Notice of Appeal
(Feb. 7, 2020)
.................................................... 110a
Appendix V— District Court Complaint
(Feb. 13, 2013) .................................................... 112a
1a
—APPENDIX A —
United States Court of Appeals
for the Fifth Circuit
NO. 23-30194
RYAN HAYGOOD; HAYGOOD DENTAL CARE, L.L.C.,
Plaintiffs—Appellants,
versus
CAMP MORRISON; C. BARRY OGDEN; KAREN
MOORHEAD; DANA GLORIOSO,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:13-CV-335
FILED September 17, 2024
Lyle W. Cayce, Clerk
ON PETITION FOR REHEARING EN BANC
Before SMITH, ENGELHARDT,
and RAMIREZ, Circuit Judges.
PER CURIAM:
Treating the petition for rehearing en banc as a
petition for panel rehearing (5TH CIR. R. 35 I.O.P.),
the petition for panel rehearing is DENIED. Because
no member of the panel or judge in regular active
service requested that the court be polled on rehearing
2a
en banc (FED. R. APP. P. 35 and 5TH CIR. R. 35), the
petition for rehearing en banc is DENIED.
The opinion issued August 15, 2024, 2024 U.S.
LEXIS 20684, is WITHDRAWN, and the following is
SUBSTITUTED:
No. 23-30194
*****
3a
— APPENDIX B —
United States Court of Appeals
for the Fifth Circuit
NO. 23-30194
RYAN HAYGOOD; HAYGOOD DENTAL CARE, L.L.C.,
Plaintiffs—Appellants,
versus
CAMP MORRISON; C. BARRY OGDEN;
KAREN MOORHEAD; DANA GLORIOSO,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:13-CV-335
FILED September 17, 2024
Lyle W. Cayce, Clerk
OPINION
Before SMITH, ENGELHARDT, and RAMIREZ,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
This appeal arises from an investigation by the
Louisiana State Board of Dentistry (“the Board”) into
Ryan Haygood, a dentist who practiced in the
Shreveport/Bossier City area. Haygood opened a new
practice that successfully recruited patients from
4a
other established dentists. Upset, those established
dentists allegedly conspired to drive Haygood from the
market by using their influence with, and positions
on, the Board to revoke Haygood’s dental license.
Beginning in late 2006, the Board launched an
investigation of Haygood that led to the revocation of
his license in 2010.
A sprawling legal quagmire unfolded over the
next several years, but only small bits are relevant to
this appeal. Specifically, in 2012, a Louisiana
appellate court vacated the Board’s revocation after
holding that the Board had deprived Haygood of due
process by allowing a Board attorney to serve both
prosecutorial and adjudicative roles. Haygood then
entered a consent decree with the Board that allowed
him to keep his license.
While that appeal was pending, Haygood filed
a civil action in state court against numerous
individuals involved in, and affiliated with, the
investigation. The state court civil action alleged
violations of Haygood’s due process rights and averred
that the competing dentists, the Board members, and
Board employees had engaged in unfair competition
by using the Board’s investigative powers to drive him
from the marketplace. In February 2013, about two
years after filing the state complaint, and after the
disposition of the state appeal, Haygood sued in
federal court claiming, inter alia, injuries under 42
U.S.C. § 1983 and the Louisiana Unfair Trade
Practices Act (“LUTPA”), La. R.S. 51:1401 et seq. The
5a
federal complaint and state complaint contained
nearly identical factual allegations.
The district court dismissed the federal
complaint for failure to state claims under § 1983 and
the LUTPA. The district court also found that both
claims were frivolous and awarded attorney’s fees to
the defendants. Haygood appealed the fee award only,
averring that the district court erred in awarding fees
and, alternatively, was erroneous in its fee
calculation.
The district court did not err in awarding fees
for a frivolous § 1983 claim, but it made a mistaken
calculation of the amount. Therefore, we affirm the
decision to award fees but remit the award to
$98,666.50.
I.
Haygood contended that the competing dentists
helped fabricate complaints to the Board concerning
his treatment of periodontal issues, so the Board
launched an investigation into Haygood’s practice
based on those complaints. Numerous instances of
alleged impropriety followed. Relevant here, H.O.
Blackwood—a competitor of Haygood’s and a director
of the Board—communicated with C. Barry Ogden,
the executive director of the Board, and Camp
Morrison, an investigator with the Board. Blackwood,
Ogden, and Morrison allegedly took steps to tilt Board
proceedings in a way that would ensure Haygood’s
loss of license.
6a
For example, Ogden appointed Brian Begue as
independent counsel for the Board during Haygood’s
hearings. The independent counsel is supposed to
provide neutral advice and recommendations to Board
members (who are mostly medical professionals) and
may not “participate[] in the investigation or
prosecution of the case.” Yet “Begue repeatedly
disregarded this role and interjected himself into the
hearing” by “cross examining witnesses, providing
supportive information to complaint counsel,
providing and suggesting objections to complaint
counsel and openly questioning the testimony of Dr.
Haygood.”
Ogden and Morrison also designated Robert
Dies as an expert to testify against Haygood despite
knowing that Dies was a direct competitor of
Haygood’s and that the relationship between the two
was “antagonistic.” Dies lacked experience in
periodontal dentistry. Though the Board ended up
appointing a new expert, it still used Dies’s testimony
in the proceeding.
Finally, Morrison engaged Karen Moorhead
and Dana Glorioso as investigators to pose as fake
patients to gather incriminating evidence against
Haygood. But Moorhead and Glorioso were neither
law enforcement officers nor licensed private
investigators—they were dental assistants who
worked for former and current Board members. Thus,
7a
they may have violated Louisiana law by posing as
patients in Morrison’s investigation.11
The Board “found Dr. Haygood guilty of eight
specifications under two separate charges, ordered
permanent revocation of his dentistry license, and
assessed the maximum monetary fine allowed by
law[,] $40,000, awarding all costs at $133,074.02, for
a total of $173,074.02.” Haygood v. La. State Bd. of
Dentistry, 101 So. 3d 90, 93 (La. Ct. App. 2012).
Haygood appealed to the state trial court, which
largely affirmed the substantive findings but
remanded for reconsideration of the sanctions. Id. at
94. The Board reduced the monetary penalty by
$5,000, but maintained the license revocation, and the
trial court affirmed. Id.
The state appellate court, however, “reverse[d]
the trial court’s judgment which affirmed the
revocation of Dr. Haygood’s license and remand[ed]
th[e] matter to the Board for a new hearing.” Id. at 92.
The appellate court reasoned that “the combination of
the Board’s general counsel’s [Begue’s] roles of
prosecutor and adjudicator violated Dr. Haygood’s
[federal and state] due process rights.” Id. at 92, 96–
See LA. REV. STAT. ANN. § 37:3520(A): “It shall be
unlawful for any person knowingly to commit any of the following
acts . . . [p]rovide contract or private investigator service without
possessing a valid license [or] [e]mploy an individual to perform
the duties of a private investigator who is not the holder of a valid
registration card.”
1
8a
97. The Louisiana Supreme Court denied the Board’s
petition for review, 2 and the Board and Haygood
eventually entered a consent decree, in 2016,
resolving the dispute and allowing Haygood to keep
his license.
Haygood filed two lawsuits against Morrison,
Ogden, Moorhead, and Glorioso during the pendency
of those proceedings. The first was filed on September
26, 2011, in state district court (“the state complaint”).
The second was filed on February 13, 2013, in federal
district court (“the federal complaint”). The state
complaint alleged violations of the Louisiana
Constitution’s due process clause and that the
defendants engaged in unfair trade practices. The
federal complaint alleged, inter alia, violations of
LUTPA and § 1983. Both complaints contained nearly
identical factual allegations, paralleling what we have
set out above.
The federal district court dismissed the federal
complaint for failure to state a claim. With respect to
the LUTPA claim, the court held that Haygood could
not plausibly claim that any named defendant had
done any act that would enable him or her to gain a
competitive advantage over Haygood. With respect to
the § 1983 claim, the court held that it had been filed
outside the statute of limitations and was therefore
prescribed.
2
2012-2333 (La. 12/14/12), 104 So. 3d 445.
9a
Defendants in the federal case then sought
attorney’s fees under 42 U.S.C. § 1988 and LA. REV.
STAT. ANN. § 51:1409(A). The district court found
that fees under § 1988 were warranted because “the
plaintiffs clearly knew, or should have known,” that
the § 1983 claim was “clearly time-barred.” The court
also found that fees under § 51:1409(A) were warranted because “the Haygood Plaintiffs’ [sic] failed to
allege any act by Defendants which would enable
them to achieve an unfair competitive advantage.”
The court awarded the defendants “attorneys’ fees and
costs in the amount of $110,993.62.”
Haygood appealed only the fee award and does
not challenge the underlying dismissal of his claims.
He maintains that the district court erred in holding
that (1) his § 1983 claim was so clearly time-barred as
to be frivolous; (2) his LUTPA claim was groundless
and brought in bad faith or for the purposes of
harassment; and (3) $110,993.62 was a reasonable
award.
II.
“We review an award of attorney’s fees under §
1988 for abuse of discretion. A district court abuses its
discretion if it awards sanctions based on an
erroneous view of the law or a clearly erroneous
assessment of the evidence.” Walker v. City of
Bogalusa, 168 F.3d 237, 239 (5th Cir. 1999) (internal
quotation marks and citations omitted).
Section “1988 authorizes a district court to
award attorney’s fees to a defendant upon a finding
10a
that the plaintiff’s [§ 1983] action was frivolous,
unreasonable, or without foundation.” Fox v. Vice, 563
U.S. 826, 833 (2011) (internal quotation marks and
citations omitted). A claim is frivolous under § 1988 if
it is not “colorable” and lacks “arguable merit.”
Vaughn v. Lewisville Indep. Sch. Dist., 62 F.4th 199,
204 (5th Cir. 2023) (quoting Vaughner v. Pulito, 804
F.2d 873, 878 (5th Cir. 1986)). To make that
determination, a district court may consider various
“factors,” such as, inter alia, whether the plaintiff
“established a prima facie case” or whether the claims
were foreclosed by “squarely controlling precedent.”
Id. at 204–05 (internal citations omitted).
Haygood’s § 1983 claim alleged that the
defendants “deprived Dr. Haygood of his right to a fair
and impartial hearing; presented knowingly false or
exaggerated claims; [and] provided evidence obtained
through unlawful means . . . .” As discussed above,
Haygood’s due process rights were likely violated by
at least some of the named defendants during the
pendency of the Board’s investigation. Assuming
arguendo that that established a prima facie case, the
propriety of the § 1988 fee award turns on whether the
district court properly found the federal complaint
time-barred and whether the time bar outweighed the
underlying merits. It did. 3
The defendants averred, for the first time at oral
argument, that Haygood’s notice of appeal was defective because
it designated only the order setting the fee amount, not the
separate order awarding fees in the first place. But in our circuit,
“an appeal from a final judgment sufficiently preserves all prior
3
11a
“Congress did not provide a statute of
limitations for claims brought under 42 U.S.C. §
1983.” Brown v. Pouncy, 93 F.4th 331, 332 (5th Cir.
2024), petition for cert. filed (U.S. June 18, 2024) (No.
23-1332). Instead, “a forum state’s general or residual
statute of limitations for personal injury claims
applies to Section 1983 claims. In Louisiana, that
period is one year.” Id. (citations omitted). 4 “Although
courts look to state law for the length of the
limitations period, the time at which a § 1983 claim
accrues is a question of federal law, conforming in
general to common-law tort principles.” McDonough v.
Smith, 588 U.S. 109, 115 (2019) (internal quotation
orders intertwined with the final judgment.” Jordan v. Ector
Cnty., 516 F.3d 290, 294 (5th Cir. 2008) (internal quotation
marks and citation omitted). And “an order awarding attorney’s
fees or costs is not reviewable on appeal until the award is
reduced to a sum certain,” meaning an “order [that] does not
reduce the sanctions to a sum certain . . . is not an appealable
final decision.” S. Travel Club v. Carnival Air Lines, 986 F.2d
125, 131 (5th Cir. 1993) (per curiam).
Haygood’s notice of appeal designated the final decision
with respect to the award of fees and costs because it designated
the order setting the award amount. See Davis v. Abbott, 781
F.3d 207, 213 n.5 (5th Cir. 2015). Thus, the notice of appeal
“sufficiently preserve[d]” challenges to the order awarding fees,
and we have jurisdiction to review both the award of fees and the
fee amount. See Jordan, 516 F.3d at 294.
Effective July 1, 2024, Louisiana’s statute of limitations
for delictual actions, or torts, is two years. See TORT ACTIONS,
2024 La. Sess. Law Serv. Act 423 (H.B. 315). The two-year
limitations period applies only to actions arising after July 1,
2024. Id.
4
12a
marks and citation omitted). That means, in
Louisiana, the limitations period for a § 1983 claim is
one year from when the plaintiff knew or should have
known that he “has a complete and present cause of
action” under “analogous common-law torts.” Id. at
115–16 (cleaned up). 5
The parties dispute the tort to which Haygood’s
claim is most analogous. Haygood avers that his
claims are analogous to malicious prosecution and/or
fabrication of evidence. 6 An action under § 1983
analogous to malicious prosecution or fabrication of
evidence accrues upon “favorable termination of [the]
prosecution.” Id. at 117. The defendants contend that
those torts cannot be analogous because Haygood filed
his federal complaint well before the favorable
termination of the Board’s proceedings. 7
The defendants are correct. Malicious
prosecution requires, as an element of the tort, the
favorable
termination
of
proceedings.
See
See also Helton v. Clements, 832 F.2d 332, 335 (5th Cir.
1987) (“[T]he statute of limitations begins to run from the
moment the plaintiff becomes aware that he has suffered an
injury or has sufficient information to know that he has been
injured.” (citations omitted)).
5
The Supreme Court has treated the common-law torts of
malicious prosecution and fabrication of evidence as
interchangeable. See McDonough, 588 U.S. at 116.
6
As noted above, the federal complaint was filed on
February 13, 2013, and the consent decree was entered June 9,
2016.
7
13a
RESTATEMENT (SECOND) OF TORTS § 658 (AM.
LAW INST. 1965). Haygood entered a consent decree
that brought the investigation to a close on June 9,
2016. That decree likely represented the favorable
termination of the Board’s proceedings. 8 The state
appellate court’s decision vacating the Board’s fine
and license suspension was not a favorable
termination because the court “remand[ed] th[e]
matter to the Board for a new hearing.” Haygood, 101
So. 3d at 98. 9 That means malicious prosecution
and/or fabrication of evidence cannot be the analogous
tort.
The defendants do not postulate an analogous
tort. Rather, they insist that any analogous, and
otherwise viable, common-law tort claim-arising from
the 2006-2010 Board proceedings culminating in the
revocation of Haygood’s dental license, including the
complaints made and the investigation thereof-had
accrued on or before September 26, 2011, when he
filed his state court action.
Cf. Thompson v. Clark, 596 U.S. 36, 39 (2022) (“To
demonstrate a favorable termination of a . . . § 1983 [claim] for
malicious prosecution, a plaintiff need only show that his
prosecution ended without a conviction.”).
8
See also id. at 46 (“The technical prerequisite is only that
the particular prosecution be disposed of in such a manner that
it cannot be revived.” (cleaned up)). Something remanded for
further proceedings can, of course, be revived in the sense that
the tribunal could reach the same disposition.
9
14a
The defendants are again correct. Wallace v.
Kato, 549 U.S. 384, 388 (2007) (cleaned up). Therefore,
the one-year limitations began to run on September
26, 2011, and the district court did not err in finding
that the February 13, 2013, federal complaint was so
clearly time-barred that it lacked arguable merit.
III.
Having determined that the district court did
not err in awarding fees under § 1988, we turn to
whether it calculated the fee award properly. It did
not. 10
10
The district court also found that fees were warranted
under LA. REV. STAT. ANN. § 51:1409(A) because Haygood’s
LUTPA claim was groundless and brought in bad faith. But the
court focused entirely on the § 1988 award when setting the fee
amount, using the associated federal standards exclusively to
award $110,261.16 in fees and $732.46 in costs.
Contrary to Haygood’s contentions, it was not error for
the court to rely entirely on the federal standards in calculating
the fee amount. “A court need not segregate fees where the facts
and issues are so closely interwoven” that separation of the work
done on each issue is impracticable. Mota v. Univ. of Tex. Hous.
Health Sci. Ctr., 261 F.3d 512, 528(5th Cir. 2001) (citation
omitted). That is why, where the “issues [are] difficult to
segregate, no reduction of fees is required.” Abell v. Potomac Ins.
Co., 946 F.2d 1160, 1169 (5th Cir. 1991) (citations omitted).
There was extensive overlap between Haygood’s § 1983
claim and his LUTPA claim. Indeed, both were premised on
identical factual allegations; the relevant motion practice dealt
with both claims. The LUTPA claim was “so closely interwoven”
with the § 1983 claim that the district court did not err in using
the federal standard exclusively and in failing to differentiate
15a
“[A]n award of attorney’s fees under section
1988 should normally be based on multiplying a
reasonable number of hours worked by a reasonable
rate of compensation.” Cobb v. Miller, 818 F.2d 1227,
1231 (5th Cir. 1987). That “lodestar method yields a
fee that is presumptively sufficient” to constitute a
“reasonable fee.” Perdue v. Kenny A. ex rel. Winn, 559
U.S. 542, 552 (2010). The presumptively sufficient fee
may then be enhanced if “a fee applicant” produces
“specific evidence” of factors not already “subsumed in
the lodestar calculation.” Id. at 553 (internal
quotation marks and citations omitted). Overarching
all of that is the district court’s broad discretion to
“determine whether the time expended by [movant’s]
counsel was reasonable.” Riverside v. Rivera, 477 U.S.
561, 573 n.6 (1986).
Haygood avers that the district court did not
closely scrutinize the time reports submitted by the
defendants. The record belies that contention for most
of the fees awarded. The defendants’ private attorneys
requested $103,392.60. The court, however, went linebetween the time billed on the LUTPA claim and the time billed
on the § 1983 claim. See Mota, 261 F.3d at 528. That decision,
though proper, has the effect of rendering irrelevant the district
court’s finding that fees were warranted under § 51:1409(A).
Because the court based the fee calculation entirely on § 1988,
there is no need to assess whether the findings under §
51:1409(A) were correct—the reasonableness of the award turns
entirely on whether the court calculated the fee award under §
1988 properly.
16a
by-line, multiplying the hours worked by a reasonable
hourly rate, and ultimately determined that defendants’ private attorneys had miscalculated. Thus, the
court awarded $98,666.50. Given the court’s obvious
care and attention to the amount billed by the private
attorneys, we cannot say it abused its discretion in
setting the lodestar at $98,666.50. 11
The court also awarded $11,594.66 for time
billed by the Louisiana Attorney General’s office. But
the court did not use the lodestar method because “a
change in data tracking procedures” at the Attorney
General’s Office deprived the court of “the number of
hours or hourly rates billed by attorneys at the
Louisiana Office of the Attorney General.” Thus, the
court was provided with only the “Total Amount
Billed” by each state attorney. The court accepted the
word of the state’s attorneys and awarded the total
amount they said they billed.
Our precedent does not permit the district court
to bypass the lodestar in that way. 12 We have no idea
how many hours the state’s lawyers attorneys spent;
that dooms any fee award on their behalf.
The district court did not add any enhancements. It did
award the defendants costs of $732.46, but Haygood does not
contest that.
11
See Combs v. City of Huntington, 829 F.3d 388, 392 (5th
Cir. 2016) (“The court must first calculate the lodestar, which is
equal to the number of hours reasonably expended multiplied by
the prevailing hourly rate . . . .” (emphasis added) (internal
quotation marks and citation omitted)).
12
17a
Thus, the district court committed an error of
law (and hence abused its discretion) by awarding
$11,594.66 in fees without using the lodestar method.
We remit the fee award to $98,666.50—the amount
calculated properly.
For the reasons explained, we AFFIRM the
decision to award fees for a frivolous § 1983 claim but
REMIT the fee award to $98,666.50. The award of
costs is not affected.
18a
— APPENDIX C—
United States Court of Appeals
for the Fifth Circuit
NO. 23-30194
RYAN HAYGOOD; HAYGOOD DENTAL CARE, L.L.C.,
Plaintiffs—Appellants,
versus
CAMP MORRISON; C. BARRY OGDEN;
KAREN MOORHEAD; DANA GLORIOSO,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:13-CV-335
FILED: August 15, 2024
Lyle W. Cayce, Clerk
Before SMITH, ENGELHARDT, and RAMIREZ,
Circuit Judges.
JUDGMENT
This cause was considered on the record on
appeal and was argued by counsel.
IT IS ORDERED and ADJUDGED that we
AFFIRM the decision to award fees for a frivolous §
1983 claim but REMIT the fee award to $98,666.50.
The award of costs is not affected.
19a
IT IS FURTHER ORDERED that each party is
to bear own costs on appeal.
The judgment or mandate of this court shall
issue 7 days after the time to file a petition for
rehearing expires, or 7 days after entry of an order
denying a timely petition for panel rehearing, petition
for rehearing en banc, or motion for stay of mandate,
whichever is later. See Fed. R. App. P. 41(b). The court
may shorten or extend the time by order. See 5th Cir.
R. 41 I.O.P.
Certified as a true copy and issued
mandate on Sep 18, 2024
as the
Attest: Clerk, U.S. Court of Appeals, Fifth
Circuit
20a
— APPENDIX D —
United States Court of Appeals
for the Fifth Circuit
NO. 23-30194
RYAN HAYGOOD; HAYGOOD DENTAL CARE, L.L.C.,
Plaintiffs—Appellants,
versus
CAMP MORRISON; C. BARRY OGDEN;
KAREN MOORHEAD; DANA GLORIOSO,
Defendants—Appellees.
Appeal from the United States District Court for the
Western District of Louisiana
USDC No. 5:13-CV-335
FILED: August 15, 2024
OPINION
Before SMITH, ENGELHARDT,
RAMIREZ, Circuit Judges. JERRY E.
and
SMITH, Circuit Judge:
This appeal arises from an investigation by the
Louisiana State Board of Dentistry (“the Board”) into
Ryan Haygood, a dentist who practiced in the
Shreveport/Bossier City area. Haygood opened a new
practice that successfully recruited patients from
21a
other established dentists. Upset, those established
dentists allegedly conspired to drive Haygood from the
market by using their influence with, and positions
on, the Board to revoke Haygood’s dental license.
Beginning in late 2006, the Board launched an
investigation of Haygood that led to the revocation of
his license in 2010.
A sprawling legal quagmire unfolded over the
next several years, but only small bits are relevant to
this appeal. Specifically, in 2012, a Louisiana
appellate court vacated the Board’s revocation after
holding that the Board had deprived Haygood of due
process by allowing a Board attorney to serve both
prosecutorial and adjudicative roles. Haygood then
entered a consent decree with the Board that allowed
him to keep his license.
While that appeal was pending, Haygood filed
a civil action in state court against numerous
individuals involved in, and affiliated with, the
investigation. The state court civil action alleged
violations of Haygood’s due process rights and averred
that the competing dentists, the Board members, and
Board employees had engaged in unfair competition
by using the Board’s investigative powers to drive him
from the marketplace. In February 2013, about two
years after filing the state complaint, and after the
disposition of the state appeal, Haygood sued in
federal court claiming, inter alia, injuries under 42
U.S.C. § 1983 and the Louisiana Unfair Trade
Practices Act (“LUTPA”), La. R.S. 51:1401 et seq. The
22a
federal complaint and state complaint contained
nearly identical factual allegations.
The district court dismissed the federal
complaint for failure to state claims under § 1983 and
the LUTPA. The district court also found that both
claims were frivolous and awarded attorney’s fees to
the defendants. Haygood appealed the fee award only,
averring that the district court erred in awarding fees
and, alternatively, was erroneous in its fee
calculation.
The district court did not err in awarding fees
for a frivolous § 1983 claim, but it made a mistaken
calculation of the amount. Therefore, we affirm the
decision to award fees but remit the award to
$98,666.50.
I.
Haygood contended that the competing dentists
helped fabricate complaints to the Board concerning
his treatment of periodontal issues, so the Board
launched an investigation into Haygood’s practice
based on those complaints. Numerous instances of
alleged impropriety followed. Relevant here, H.O.
Blackwood—a competitor of Haygood’s and a director
of the Board—communicated with C. Barry Ogden,
the executive director of the Board, and Camp
Morrison, an investigator with the Board. Blackwood,
Ogden, and Morrison allegedly took steps to tilt Board
proceedings in a way that would ensure Haygood’s
loss of license.
23a
For example, Ogden appointed Brian Begue as
independent counsel for the Board during Haygood’s
hearings. The independent counsel is supposed to
provide neutral advice and recommendations to Board
members (who are mostly medical professionals) and
may not “participate[] in the investigation or
prosecution of the case.” Yet “Begue repeatedly
disregarded this role and interjected himself into the
hearing” by “cross examining witnesses, providing
supportive information to complaint counsel,
providing and suggesting objections to complaint
counsel and openly questioning the testimony of Dr.
Haygood.”
Ogden and Morrison also designated Robert
Dies as an expert to testify against Haygood despite
knowing that Dies was a direct competitor of
Haygood’s and that the relationship between the two
was “antagonistic.” Dies lacked experience in
periodontal dentistry. Though the Board ended up
appointing a new expert, it still used Dies’s testimony
in the proceeding.
Finally, Morrison engaged Karen Moorhead
and Dana Glorioso as investigators to pose as fake
patients to gather incriminating evidence against
Haygood. But Moorhead and Glorioso were neither
law enforcement officers nor licensed private
investigators—they were dental assistants who
worked for former and current Board members. Thus,
24a
they may have violated Louisiana law by posing as
patients in Morrison’s investigation. 1
The Board “found Dr. Haygood guilty of eight
specifications under two separate charges, ordered
permanent revocation of his dentistry license, and
assessed the maximum monetary fine allowed by
law[,] $40,000, awarding all costs at $133,074.02, for
a total of $173,074.02.” Haygood v. La. State Bd. of
Dentistry, 101 So. 3d 90, 93 (La. Ct. App. 2012).
Haygood appealed to the state trial court, which
largely affirmed the substantive findings but
remanded for reconsideration of the sanctions. Id. at
94. The Board reduced the monetary penalty by
$5,000, but maintained the license revocation, and the
trial court affirmed. Id.
The state appellate court, however, “reverse[d]
the trial court’s judgment which affirmed the
revocation of Dr. Haygood’s license and remand[ed]
th[e] matter to the Board for a new hearing.” Id. at 92.
The appellate court reasoned that “the combination of
the Board’s general counsel’s [Begue’s] roles of
prosecutor and adjudicator violated Dr. Haygood’s
[federal and state] due process rights.” Id. at 92, 96–
See LA. REV. STAT. ANN. § 37:3520(A): “It shall be
unlawful for any person knowingly to commit any of the following
acts . . . [p]rovide contract or private investigator service without
possessing a valid license [or] [e]mploy an individual to perform
the duties of a private investigator who is not the holder of a valid
registration card.”
1
25a
97. The Louisiana Supreme Court denied the Board’s
petition for review, 1 and the Board and Haygood
eventually entered a consent decree, in 2016,
resolving the dispute and allowing Haygood to keep
his license.
Haygood filed two lawsuits against Morrison,
Ogden, Moorhead, and Glorioso during the pendency
of those proceedings. The first was filed on September
26, 2011, in state district court (“the state complaint”).
The second was filed on February 13, 2013, in federal
district court (“the federal complaint”). The state
complaint alleged violations of the Louisiana
Constitution’s due process clause and that the
defendants engaged in unfair trade practices. The
federal complaint alleged, inter alia, violations of
LUTPA and § 1983. Both complaints contained nearly
identical factual allegations, paralleling what we have
set out above.
The federal district court dismissed the federal
complaint for failure to state a claim. With respect to
the LUTPA claim, the court held that Haygood could
not plausibly claim that any named defendant had
done any act that would enable him or her to gain a
competitive advantage over Haygood. With respect to
the § 1983 claim, the court held that it had been filed
outside the statute of limitations and was therefore
prescribed.
1
2012-2333 (La. 12/14/12), 104 So. 3d 445.
26a
Defendants in the federal case then sought
attorney’s fees under 42 U.S.C. § 1988 and LA. REV.
STAT. ANN. § 51:1409(A). The district court found
that fees under § 1988 were warranted because “the
plaintiffs clearly knew, or should have known,” that
the § 1983 claim was “clearly time-barred.” The court
also found that fees under § 51:1409(A) were warranted because “the Haygood Plaintiffs’ [sic] failed to
allege any act by Defendants which would enable
them to achieve an unfair competitive advantage.”
The court awarded the defendants “attorneys’ fees and
costs in the amount of $110,993.62.”
Haygood appealed only the fee award and does
not challenge the underlying dismissal of his claims.
He maintains that the district court erred in holding
that (1) his § 1983 claim was so clearly time-barred as
to be frivolous; (2) his LUTPA claim was groundless
and brought in bad faith or for the purposes of
harassment; and (3) $110,993.62 was a reasonable
award.
II.
“We review an award of attorney’s fees under §
1988 for abuse of discretion. A district court abuses its
discretion if it awards sanctions based on an
erroneous view of the law or a clearly erroneous
assessment of the evidence.” Walker v. City of
Bogalusa, 168 F.3d 237, 239 (5th Cir. 1999) (internal
quotation marks and citations omitted).
27a
Section “1988 authorizes a district court to
award attorney’s fees to a defendant upon a finding
that the plaintiff’s [§ 1983] action was frivolous,
unreasonable, or without foundation.” Fox v. Vice, 563
U.S. 826, 833 (2011) (internal quotation marks and
citations omitted). “[W]here it is clear from the face of
a complaint” that “the claims asserted are barred by
the applicable statute of limitations, those claims are
properly dismissed [as frivolous].” Gartrell v. Gaylor,
981 F.2d 254, 256 (5th Cir. 1993) (per curiam).
Haygood’s § 1983 claim alleged that the
defendants “deprived Dr. Haygood of his right to a fair
and impartial hearing; presented knowingly false or
exaggerated claims; [and] provided evidence obtained
through unlawful means . . . .” As discussed above,
Haygood’s due process rights were likely violated by
at least some of the named defendants during the
pendency of the Board’s investigation. Thus, the
frivolity of his § 1983 claim, and the propriety of the §
1988 fee award, turn entirely on whether the district
court properly found the federal complaint timebarred. It did. 1
1
The defendants averred, for the first time at oral
argument, that Haygood’s notice of appeal was defective because
it designated only the order setting the fee amount, not the
separate order awarding fees in the first place. But in our circuit,
“an appeal from a final judgment sufficiently preserves all prior
orders intertwined with the final judgment.” Jordan v. Ector
Cnty., 516 F.3d 290, 294 (5th Cir. 2008) (internal quotation
marks and citation omitted). And “an order awarding attorney’s
28a
“Congress did not provide a statute of
limitations for claims brought under 42 U.S.C. §
1983.” Brown v. Pouncy, 93 F.4th 331, 332 (5th Cir.
2024), petition for cert. filed (U.S. June 18, 2024) (No.
23-1332). Instead, “a forum state’s general or residual
statute of limitations for personal injury claims
applies to Section 1983 claims. In Louisiana, that
period is one year.” Id. (citations omitted). 1 “Although
courts look to state law for the length of the
limitations period, the time at which a § 1983 claim
accrues is a question of federal law, conforming in
general to common-law tort principles.” McDonough v.
Smith, 588 U.S. 109, 115 (2019) (internal quotation
marks and citation omitted). That means, in
fees or costs is not reviewable on appeal until the award is
reduced to a sum certain,” meaning an “order [that] does not
reduce the sanctions to a sum certain . . . is not an appealable
final decision.” S. Travel Club v. Carnival Air Lines, 986 F.2d
125, 131 (5th Cir. 1993) (per curiam).
Haygood’s notice of appeal designated the final decision
with respect to the award of fees and costs because it designated
the order setting the award amount. See Davis v. Abbott, 781
F.3d 207, 213 n.5 (5th Cir. 2015). Thus, the notice of appeal
“sufficiently preserve[d]” challenges to the order awarding fees,
and we have jurisdiction to review both the award of fees and the
fee amount. See Jordan, 516 F.3d at 294.
Effective July 1, 2024, Louisiana’s statute of limitations
for delictual actions, or torts, is two years. See TORT ACTIONS,
2024 La. Sess. Law Serv. Act 423 (H.B. 315). The two-year
limitations period applies only to actions arising after July 1,
2024. Id.
1
29a
Louisiana, the limitations period for a § 1983 claim is
one year from when the plaintiff knew or should have
known that he “has a complete and present cause of
action” under “analogous common-law torts.” Id. at
115–16 (cleaned up). 1
The parties dispute the tort to which Haygood’s
claim is most analogous. Haygood avers that his
claims are analogous to malicious prosecution and/or
fabrication of evidence. 2 An action under § 1983
analogous to malicious prosecution or fabrication of
evidence accrues upon “favorable termination of [the]
prosecution.” Id. at 117. The defendants contend that
those torts cannot be analogous because Haygood filed
his federal complaint well before the favorable
termination of the Board’s proceedings. 3 The
defendants are correct. Malicious prosecution
requires, as an element of the tort, the favorable
termination of proceedings. See RESTATEMENT
See also Helton v. Clements, 832 F.2d 332, 335 (5th Cir.
1987) (“[T]he statute of limitations begins to run from the
moment the plaintiff becomes aware that he has suffered an
injury or has sufficient information to know that he has been
injured.” (citations omitted)).
1
The Supreme Court has treated the common-law torts of
malicious prosecution and fabrication of evidence as
interchangeable. See McDonough, 588 U.S. at 116.
2
As noted above, the federal complaint was filed on
February 13, 2013, and the consent decree was entered June 9,
2016.
3
30a
(SECOND) OF TORTS § 658 (AM. LAW INST. 1965).
Haygood entered a consent decree that brought the
investigation to a close on June 9, 2016. That decree
likely represented the favorable termination of the
Board’s proceedings. 1 The state appellate court’s
decision vacating the Board’s fine and license
suspension was not a favorable termination because
the court “remand[ed] th[e] matter to the Board for a
new hearing.” Haygood, 101 So. 3d at 98. 2 That means
malicious prosecution and/or fabrication of evidence
cannot be the analogous tort.
The defendants do not postulate an analogous
tort. Rather, they insist that any analogous, and
otherwise viable, common-law tort claim―arising
from the 2006-2010 Board proceedings culminating in
the revocation of Haygood’s dental license, including
the complaints made and the investigation
thereof―had accrued on or before September 26, 2011,
when he filed his state court action.
1
Cf. Thompson v. Clark, 596 U.S. 36, 39 (2022) (“To
demonstrate a favorable termination of a . . . § 1983 [claim] for
malicious prosecution, a plaintiff need only show that his
prosecution ended without a conviction.”).
See also id. at 46 (“The technical prerequisite is only that
the particular prosecution be disposed of in such a manner that
it cannot be revived.” (cleaned up)). Something remanded for
further proceedings can, of course, be revived in the sense that
the tribunal could reach the same disposition.
2
31a
The defendants are again correct. Wallace v.
Kato, 549 U.S. 384, 388 (2007) (cleaned up). Therefore,
the one-year limitations began to run on September
26, 2011, and the district court did not err in finding
that the February 13, 2013, federal complaint was
easily time-barred.
III.
Having determined that the district court did
not err in awarding fees under § 1988, we turn to
whether it calculated the fee award properly. It did
not. 1
The district court also found that fees were warranted
under LA. REV. STAT. ANN. § 51:1409(A) because Haygood’s
LUTPA claim was groundless and brought in bad faith. But the
court focused entirely on the § 1988 award when setting the fee
amount, using the associated federal standards exclusively to
award $110,261.16 in fees and $732.46 in costs.
1
Contrary to Haygood’s contentions, it was not error for
the court to rely entirely on the federal standards in calculating
the fee amount. “A court need not segregate fees where the facts
and issues are so closely interwoven” that separation of the work
done on each issue is impracticable. Mota v. Univ. of Tex. Hous.
Health Sci. Ctr., 261 F.3d 512, 528 (5th Cir. 2001) (citation
omitted). That is why, where the “issues [are] difficult to
segregate, no reduction of fees is required.” Abell v. Potomac Ins.
Co., 946 F.2d 1160, 1169 (5th Cir. 1991) (citations omitted).
There was extensive overlap between Haygood’s § 1983
claim and his LUTPA claim. Indeed, both were premised on
identical factual allegations; the relevant motion practice dealt
with both claims. The LUTPA claim was “so closely interwoven”
with the § 1983 claim that the district court did not err in using
32a
“[A]n award of attorney’s fees under section
1988 should normally be based on multiplying a
reasonable number of hours worked by a reasonable
rate of compensation.” Cobb v. Miller, 818 F.2d 1227,
1231 (5th Cir. 1987). That “lodestar method yields a
fee that is presumptively sufficient” to constitute a
“reasonable fee.” Perdue v. Kenny A. ex rel. Winn, 559
U.S. 542, 552 (2010). The presumptively sufficient fee
may then be enhanced if “a fee applicant” produces
“specific evidence” of factors not already “subsumed in
the lodestar calculation.” Id. at 553 (internal
quotation marks and citations omitted). Overarching
all of that is the district court’s broad discretion to
“determine whether the time expended by [movant’s]
counsel was reasonable.” Riverside v. Rivera, 477 U.S.
561, 573 n.6 (1986).
Haygood avers that the district court did not
closely scrutinize the time reports submitted by the
defendants. The record belies that contention for most
the federal standard exclusively and in failing to differentiate
between the time billed on the LUTPA claim and the time billed
on the § 1983 claim. See Mota, 261 F.3d at 528. That decision,
though proper, has the effect of rendering irrelevant the district
court’s finding that fees were warranted under § 51:1409(A).
Because the court based the fee calculation entirely on § 1988,
there is no need to assess whether the findings under §
51:1409(A) were correct—the reasonableness of the award turns
entirely on whether the court calculated the fee award under §
1988 properly.
33a
of the fees awarded. The defendants’ private attorneys
requested $103,392.60. The court, however, went lineby-line, multiplying the hours worked by a reasonable
hourly rate, and ultimately determined that
defendants’ private attorneys had miscalculated.
Thus, the court awarded $98,666.50. Given the court’s
obvious care and attention to the amount billed by the
private attorneys, we cannot say it abused its
discretion in setting the lodestar at $98,666.50. 1
The court also awarded $11,594.66 for time
billed by the Louisiana Attorney General’s office. But
the court did not use the lodestar method because “a
change in data tracking procedures” at the Attorney
General’s Office deprived the court of “the number of
hours or hourly rates billed by attorneys at the
Louisiana Office of the Attorney General.” Thus, the
court was provided with only the “Total Amount
Billed” by each state attorney. The court accepted the
word of the state’s attorneys and awarded the total
amount they said they billed.
Our precedent does not permit the district court
to bypass the lodestar in that way. 2 We have no idea
The district court did not add any enhancements. It did
award the defendants costs of $732.46, but Haygood does not
contest that.
1
2
See Combs v. City of Huntington, 829 F.3d 388, 392 (5th
Cir. 2016) (“The court must first calculate the lodestar, which is
equal to the number of hours reasonably expended multiplied by
34a
how many hours the state’s lawyers attorneys spent;
that dooms any fee award on their behalf.
Thus, the district court committed an error of
law (and hence abused its discretion) by awarding
$11,594.66 in fees without using the lodestar method.
We remit the fee award to $98,666.50—the amount
calculated properly.
*****
For the reasons explained, we AFFIRM the
decision to award fees for a frivolous § 1983 claim but
REMIT the fee award to $98,666.50. The award of
costs is not affected.
the prevailing hourly rate . . . .” (emphasis added) (internal
quotation marks and citation omitted)).
35a
— APPENDIX E—
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
RYAN HAYGOOD, DDS, ET AL.
VERSUS.
BRIAN BEGUE, ET AL.
CIVIL ACTION NO. 13-0335
JUDGE S. MAURICE HICKS, JR
MAGISTRATE JUDGE HORNSBY
MEMORANDUM ORDER
On January 28, 2022, this Court granted in
part the Motions for Reconsideration of and/or to Alter
or Amend the Memorandum Rulings and Orders
Awarding Attorney Fees to Defendants (Record
Documents 326, 327, & 328). See Record Document
342. The Court was persuaded by Plaintiffs’
contention that an award of attorney fees was
premature because the merits of their appeal had not
yet been ruled on by the Fifth Circuit. See id. The
Court granted the motions “only to the extent that the
orders awarding attorney fees [were] stayed and
otherwise held in abeyance until such time as the
Fifth Circuit issues its opinion in Haygood II.” Id. at
3.
The Fifth Circuit issued its opinion in Haygood
II on March 2, 2023. See Record Document 343. The
36a
mandate was issued on March 24, 2023. See id. The
Fifth Circuit held:
[W]e AFFIRM the district court’s orders on
Haygood’s Rule 60(b) motion and on
Haygood’s motion for an extension of time to
file a notice of appeal, and we DISMISS for
lack of jurisdiction the remainder of
Haygood’s appeal.
Id. at 15.
Accordingly, this Court’s previous order
(Record Document 342) staying the orders awarding
attorney fees (Record Documents 320-325) and
otherwise holding such orders in abeyance is now
VACATED. 1 Such orders (Record Documents 320325) are no longer stayed or held in abeyance.
IT IS SO ORDERED.
THUS DONE AND SIGNED, in Shreveport,
Louisiana, this 29th day of March,2023.
s/ United States District Judge
1 The total amount of attorney fees awarded in August 2021 was
$270,661.80. See Record Document 342 at 1, citing Record
Documents 320-325.
37a
— APPENDIX F—
United States Court of Appeals
for the Fifth Circuit
NO. 18-30866
RYAN HAYGOOD;
HAYGOOD DENTAL CARE, L.L.C.,
Plaintiffs—Appellants,
versus
ROSS H. DIES; ROSS H. DIES J. CODY COWEN
BENJAMIN A. BEACH, A PROFESSIONAL
DENTAL L.L.C.; ROBERT K. HILL; HILL D D S,
INCORPORATED; CAMP MORRISON; C. BARRY
OGDEN; KAREN MOORHEAD; DANA GLORIOSO;
H.O.
BLACKWOOD;
ROBERT
D
D
S,
INCORPORATED
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:13-CV-335
FILED March 2, 2023
Lyle W. Cayce, Clerk
Before RICHMAN, Chief Judge, and BARKSDALE
and DUNCAN, Circuit Judges.
38a
JUDGMENT
This cause was considered on the record on
appeal and was argued by counsel.
No. 18-30866
IT IS ORDERED and ADJUDGED that the
judgment of the District Court is AFFIRMED IN
PART and DISMISSED IN PART in accordance with
the opinion of this Court.
IT IS FURTHER ORDERED that plaintiffsappellants pay to defendants-appellees the costs on
appeal to be taxed by the Clerk of this Court.
Certified as a true copy and issued as the
mandate on Mar 24, 2023
Attest: Clerk, U.S. Court of Appeals, Fifth Circuit
39a
— APPENDIX G—
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
RYAN HAYGOOD, DDS, ET AL.
VERSUS.
BRIAN BEGUE, ET AL.
CIVIL ACTION NO. 13-0335
JUDGE S. MAURICE HICKS, JR
MAGISTRATE JUDGE HORNSBY
MEMORANDUM ORDER
Before the Court are Plaintiffs’ three Motions
for Reconsideration of and/or to Alter or Amend the
Memorandum Rulings and Orders Awarding
Attorney Fees to Defendants. See Record Documents
326, 327, & 328. The total amount of attorney fees
awarded in August 2021 was $270,661.80. See Record
Documents 320-325. Defendants Robert K. Hill,
D.D.S. and Hill, D.D.S., Inc., Barry Ogden, Camp
Morrison, Karen Moorhead, Dana Glorioso, and H.O.
Blackwood, D.D.S. oppose the motions and contend
the Court’s award of attorney fees was entirely
proper. See Record Documents 334, 337, & 338.
The instant motions for reconsideration are
filed on five grounds: (1) Plaintiffs were deprived of
the opportunity to object to the detailed time
submissions since the Court did not issue a briefing
40a
schedule; (2) the award of attorney fees for discovery
and related activities conducted solely under the
auspices of the state court was in error; (3) the award
of attorney fees was premature; (4) the award of
attorney fees is erroneous; and (5) the general
impropriety of an award of attorney fees in this
matter. See Record Documents 326, 327, & 328. This
Court finds no legal grounds under Rules 54, 59, or
60 to reconsider or alter/amend it prior rulings based
on Plaintiffs’ arguments that they were deprived of
the opportunity to object to the detailed time
submissions since the Court did not issue a briefing
schedule; the award of attorney fees for discovery and
related activities conducted solely under the auspices
of the state court was in error; the award of attorney
fees is erroneous; and the general impropriety of an
award of attorney fees in this matter. While it is true
the Court did not set briefing deadlines after the
submission of the detailed time records, Plaintiffs’
“assum[ption] that the District Court had tabled the
quantum of attorney fees until such time as the Fifth
Circuit issued its opinion in Haygood II” was
misplaced. Record Documents 326-2 at 15, 327-2 at
16, & 328-2 at 16. Counsel for Plaintiffs were free to
inquire with the Court as to briefing deadlines and/or
to file a response to the detailed time submissions at
any time with the Court, but they failed to do so for
years, not simply a matter of months. Additionally,
this Court has previously addressed in great detail
not only the propriety of the award of attorney fees,
but also its lodestar analysis to reach the quantum of
41a
attorney fees. The Court specifically considered the
interwoven nature of the many claims and
proceedings in this case, all of which involved a
common core of facts and were based on related legal
theories. The motions are DENIED on these four
grounds.
The Court will now move to Plaintiffs’
argument that the award of attorney fees was
premature. Plaintiffs note:
[T]his Court’s rulings on the underlying
motions that formed the basis of the attorney
fees award are currently on appeal with the
Fifth Circuit. Haygood II. This matter was
submitted to the Fifth Circuit in July 2019;
the Fifth Circuit heard oral argument on
December 4, 2019; and, on May 28, 2020, the
Fifth
Circuit
requested
supplemental
briefing. Nearly two years after oral
argument – and as of the date of the filing of
this motion for reconsideration – the Fifth
Circuit has yet to issue an opinion.
Record Documents 326-2 at 21, 327-2 at 22, & 328-2
at 21-22. In sum, Plaintiffs contend an award of
attorney fees is premature because the merits of their
appeal have not yet been ruled on by the Fifth Circuit.
See Record Document 326-2 at 22, Record Document
327-2 at 22, & Record Document 328-2 at 22. The
Court is more persuaded by this argument and agrees
to stay the enforcement of the orders awarding
attorney fees in this case until such time as the Fifth
42a
Circuit rules in Haygood II. Thus, the Motions for
Reconsideration of and/or to Alter or Amend the
Memorandum Rulings and Orders Awarding Attorney
Fees to Defendants (Record Documents 326, 327, &
328) are GRANTED on this ground alone and only to
the extent that the orders awarding attorney fees are
stayed and otherwise held in abeyance until such time
as the Fifth Circuit issues its opinion in Haygood II.
Accordingly, as set forth above, Plaintiffs’
Motions for Reconsideration of and/or to Alter or
Amend the Memorandum Rulings and Orders
Awarding Attorney Fees to Defendants (Record
Documents 326, 327, & 328) are GRANTED IN
PART AND DENIED IN PART.
IT IS SO ORDERED.
THUS DONE AND SIGNED, in Shreveport,
Louisiana, this 28th day of January, 2022.
43a
— APPENDIX H—
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
RYAN HAYGOOD, DDS, ET AL.
VERSUS.
BRIAN BEGUE, ET AL.
CIVIL ACTION NO. 13-0335
JUDGE S. MAURICE HICKS, JR
MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING
Before this Court is a Determination of
Attorney Fees, resulting from the prior granting of
Defendants Barry Ogden, Camp Morrison, Dana
Glorioso, and Karen Moorhead’s (collectively referred
to as “Defendants”) Motion for Attorney Fees. See
Record Document 293 & 294. For the reasons that
follow, Defendants are awarded attorneys’ fees and
costs in the amount of $110,993.62.
BACKGROUND
In March 2014, this Court granted Defendants’
Rule 12(b)(6) motion, dismissing the Haygood
Plaintiffs’ Section 1983 claims as prescribed and
holding that the Sherman Act, state law defamation,
and Louisiana Unfair Trade Practices Act (“LUTPA”)
claims failed under Rule 12(b)(6) and the
44a
Twombly/Iqbal standard. See Record Documents 110
& 111. All claims against the Defendants were
dismissed with prejudice. See id.
As to the Section 1983 claim, this Court held
that Defendants are entitled to reasonable attorneys’
fees under Section 1988(b). See Record Document
293. Section 1988(b) provides, in pertinent part:
In any action or proceeding to enforce a
provision of section[] . . . 1983 . . ., the court, in
its discretion, may allow the prevailing party,
other than the United States, a reasonable
attorney’s fee as part of the costs.
42 U.S.C. § 1988(b). Section 1988(b) “authorizes a
district court to award attorney’s fees to a defendant
upon a finding that the plaintiff’s action was
frivolous, unreasonable, or without foundation.” Fox
v. Vice, 563 U.S. 826, 833, 131 S.Ct. 2205, 2213 (2011)
(citation and internal quotation omitted). In finding
the Haygood Plaintiffs’ Section 1983 claim frivolous,
this Court reasoned:
Because over two years elapsed between the filing
of the initial proceeding in state court and the
instant case, this Court finds that the plaintiffs
clearly knew, or should have known, of the overt
acts which might constitute a § 1983 violation at
least two years before the instant suit was filed.
Therefore, this Court finds that the alleged
wrongdoing under 42 U.S.C. § 1983 by the
Defendants has prescribed under Louisiana law.
45a
.. .
. . . The Court additionally notes that even if this
action was not prescribed, the Rule 12(b)(6)
Motion filed by the Defendants nonetheless would
be granted because Dr. Haygood’s bald conclusory
allegations that he was involved in a conspiracy
with the Dental Board fails the plausibility
standard established in Twombly and Iqbal. See
Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007); see also Iqbal, 556 U.S. 662 (2009).
Record Document 110 at 5-6.
As to the LUTPA claims, this Court held that
Defendants are entitled to reasonable attorneys’ fees
under La. R.S. 51:1409(A), which provides, in
pertinent part:
Upon a finding by the court that an action under
this Section was groundless and brought in bad
faith or for purposes of harassment, the court may
award to the defendant reasonable attorney fees
and costs.
This Court found that the Haygood Plaintiffs failed to
allege any act by Defendants which would enable
them to achieve an unfair competitive advantage over
Plaintiffs. See id at 12. Thus, the LUTPA claims were
groundless and brought in bad faith or for purposes
of harassment, which entitled Defendants to
attorneys’ fees and costs under La. R.S. 51:1409(A).
46a
Accordingly, Defendants’ Motion for Attorney
Fees was granted on March 14, 2019. See Record
Document 293. Haygood’s resulting Motion for
Reconsideration of and/or to Alter or Amend the
Memorandum Ruling and Order Granting Attorney’s
Fees was denied. See Record Document 316.
Defendants timely filed Motions to Submit Detailed
Time Reports for the Determination of Attorney Fees
and now request attorneys’ fees and costs totaling
$114,987.26. See Record Document 311-3.
Haygood appealed the grant of attorneys’ fees,
and the Fifth Circuit dismissed the appeal for want
of jurisdiction. See Record Document 319. Courts of
appeal have authority to hear “appeals from all final
decisions of the district courts of the United States.”
28 U.S.C. § 1291. The Fifth Circuit reasoned that
because, at the time of appeal, no order existed
specifying the amount awarded in attorney’s fees, the
order was not final for purposes of appellate review.
See id. This Court must now determine reasonable
attorneys’ fees and costs.
LAW AND ANALYSIS
42 U.S.C. § 1988(b) authorizes a district court,
in its discretion, to award a reasonable attorney’s fee
to a prevailing party as part of the costs. Likewise,
La. R.S. 51:1409(A) authorizes award of reasonable
attorneys’ fees and costs to a defendant when a court
finds that the litigation was brought in bad faith or
for purposes of harassment. In their submission of
detailed time reports, Defendants identified three
47a
categories of expenses billed to clients in defense of
the instant suit: (1) the firm’s attorneys’ fees billed for
time expended solely in defense of the instant suit, (2)
attorneys’ fees billed by the Louisiana Office of the
Attorney General, and (3) costs relevant to the
instant federal litigation. See Record Document 3113.
Regarding the first and second categories,
reasonable attorney fee awards in federal actions are
determined by performing a two-step lodestar
analysis. See Perdue v. Kenny A. ex rel. Winn, 559
U.S. 542, 551, 130 S.Ct. 1662, 1672 (2010), Hensley v.
Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939
(1983), Calix v. Ashton Marine LLC, No. 14-2430,
2016 WL 4194119, at *1 (E.D. La. July 14, 2016).
First, “[a] lodestar is calculated by multiplying the
number of hours reasonably expended by an
appropriate hourly rate in the community for such
work.” Heidtman v. Cty. of El Paso, 171 F.3d 1038,
1043 (5th Cir. 1999). The lodestar is presumptively
sufficient, 559 U.S. at 552, but may then be decreased
or enhanced based on the relative weights of the
twelve factors set forth in Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714, 717–19 (5th
Cir. 1974). See Heidtman, 171 F.3d at 1043. The
Johnson factors are: “(1) the time and labor required;
(2) the novelty and difficulty of the issues; (3) the skill
required to perform the legal services properly; (4)
the preclusion of other employment by the attorney;
(5) the customary fee; (6) whether the fee is fixed or
contingent; (7) the time limitations imposed by the
48a
client or circumstances; (8) the amount involved and
results obtained; (9) the experience, reputation, and
ability of the attorneys; (10) the undesirability of the
case; (11) the nature and length of the professional
relationship with the client; and (12) the award in
similar cases.” 488 F.2d at 717–19.
The prevailing party bears the burden of
documenting and submitting the appropriate hours
expended and hourly rates. See Hensley v. Eckerhart,
461 U.S. at 437, 103 S.Ct. at 1941. Counsel for the
prevailing party must make a good faith effort to
exclude excessive, duplicative, or otherwise
unnecessary entries. See id. at 434, 103 S.Ct. at
1939–40. This Court, along with others within the
Fifth Circuit, has noted that “some cases . . . require
that attorneys perform work on numerous claims,
issues or even proceedings, not all of which
independently or standing alone give rise to a basis
for an award of attorney’s fees.” Sabre Industries, Inc.
v. Module X Solutions, LLC, No. 15-2501, 2019 WL
4794103, at *1 (W.D. La. Sept. 30, 2019) (citing
Cashman Equip. Corp. v. Smith Marine Towing
Corp., No. CV 12-945, 2013 WL 12229038, at *7 (E.D.
La. June 27, 2013), report and recommendation
adopted, No. CV 12-945, 2013 WL 12228976 (E.D. La.
July 12, 2013)); see also NOP, LLC v. Kansas, No.
CIV.A. 101423, 2011 SL 1485287, at *5 (E.D. La. Mar.
23, 2011), report and recommendation adopted, No.
CIV.A. 10-1423, 2011 WL 1558687 (E.D. La. Apr. 18,
2011). In such cases, courts “need not segregate fees
when the facts and issues are so closely interwoven
49a
that they cannot be separated.” Id. Rather, the
determinative inquiry is whether the claims include
a common core of facts or were based on related legal
theories linking them to the successful claim. See id.
If the facts and issues are closely interwoven, the
prevailing party may recover reasonable attorneys’
fees incurred to defend against the intertwined
claims. See id.
In the instant case, the law from which state
defamation and Sherman Act claims arise does not
provide for award of attorneys’ fees. See 15 U.S.C. §1
and §2. Based on review of the facts and
circumstances of this case, this Court finds that all of
the Plaintiff’s claims rest on a common core of
operative facts such that it would be impracticable to
separate the hours attributable to each related claim.
Defendants have exercised sound billing judgment in
seeking this award of attorneys’ fees by excluding
entries related to Plaintiffs’ case pending in State
Court and writing off otherwise unnecessary entries
before submitting time records to this Court. See
Record Document 311-3. The Court conducted a
thorough review of the Detailed Time Report
submitted by Defendants. Defendants requested
$102,660.14 as the sum of monthly firm invoices. Yet,
this Court’s review and calculation of the total
monthly firm invoices was $98,666.50. See Record
Documents 311-3 & 311-4. Thus, this Court will treat
the sum of $98,666.50 as the amount of attorneys’
fees requested by Defendants. Based upon this
Court’s review of the facts of this case and the
50a
Detailed Time Reports in Record Document 311, this
Court finds that the hours invoiced as represented in
the detailed time report are reasonable for purposes
of the lodestar calculation.
This Court must also determine reasonable
hourly rates for billing attorneys and paralegals. A
reasonable hourly rate is “to be calculated according
to the prevailing market rates in the relevant
community” and is a rate “adequate to attract
competent counsel.” Blum v. Stenson, 465 U.S. 886,
895–97, 104 S.Ct. 1541, 1547–48. This Court accepts
that hourly rates of $125-140 for attorneys with
varying experience, $25-50 for law clerks, and $50 for
a paralegal are acceptable rates within the Western
District of Louisiana. Such rates are also customary
as to the fees normally charged by the firm. See
Record Document 311-6. Thus, the hourly rates are
reasonable for purposes of the lodestar calculation.
This Court notes that Exhibit A-2 does not
provide the number of hours or hourly rates billed by
attorneys at the Louisiana Office of the Attorney
General because of a change in data tracking
procedures between 2014 and 2015. See Record
Document 3113. Based on review of the facts of this
case, this Court finds the requested attorneys’ fees of
$11,594.66 reasonable given the Attorney General’s
role in this case.
Based on the foregoing analysis, the lodestar is
$110,261.16 ($98,666.50 plus $11,594.66). There is a
strong presumption that this lodestar figure is
51a
reasonable, “but that presumption may be overcome
in rare circumstances where the lodestar does not
adequately take into account a factor that may be
properly considered in determining a reasonable fee.”
Perdue, 559 U.S. at 554, 130 S.Ct. at 1673. The
lodestar includes most, if not all, of the relevant
factors constituting a reasonable attorney fee. See
Pennsylvania v. Delaware Valley Citizens’ Council
for Clean Air, 478 U.S. 546, 566, 106 S.Ct 3088, 3098
(1986). Novelty and complexity of issues, special skill
and experience of counsel, quality of representation,
and results obtained from litigation are presumably
fully reflected in the lodestar and thus cannot be
independent bases upon which a court increases the
lodestar. See Blum v. Stenson, 465 U.S. at 898–900,
104 S.Ct. at 1548– 50. This Court finds that none of
the Johnson factors warrant an increase or decrease
in the award sought by Defendants.
Under Rule 1.5(a) of the Louisiana Rules of
Professional Conduct, the factors to be considered in
determining the reasonableness of attorney’s fees are
substantially similar to those considered under the
federal lodestar analysis. This Court likewise finds
that none of the Rule 1.5(a) factors warrant an
adjustment to the award sought by Defendants.
As to the second category of expenses relating
to costs incurred in defense of the instant case,
reasonable
out-of-pocket
expenses
such
as
photocopying, paralegal assistance, travel, and
telephone are generally recoverable in cost awards.
52a
See Associated Builders & Contractors of La., Inc. v.
Orleans Par. Sch. Bd., 919 F.2d 374, 380 (5th Cir.
1990). Ultimately, reasonableness of costs awarded is
within the sound discretion of the Court. See id.; see
also La. Code Civ. Proc. Ann. art. 1920. This Court
has reviewed the requested costs and finds all
requested costs in Record Document 3114 reasonable.
Thus, this Court awards Defendants costs totaling
$732.46.
CONCLUSION
Based on the foregoing analysis, this Court
finds attorneys’ fees in the amount of $110,261.16
and costs in the amount of $732.46 to be reasonable.
Defendants Barry Ogden, Camp Morrison, Dana
Glorioso, and Karen Moorhead are hereby awarded
$110,993.62 in attorneys’ fees and costs.
An order consistent with the terms of the
instant Memorandum Ruling shall issue herewith.
THUS DONE AND SIGNED, in Shreveport,
Louisiana, this 17th day of August, 2021.
53a
— APPENDIX I—
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
RYAN HAYGOOD, DDS, ET AL.
VERSUS.
BRIAN BEGUE, ET AL.
CIVIL ACTION NO. 13-0335
JUDGE S. MAURICE HICKS, JR
MAGISTRATE JUDGE HORNSBY
ORDER
Based on the foregoing Memorandum Ruling,
IT IS ORDERED that Defendants Barry
Ogden, Camp Morrison, Dana Glorioso, and Karen
Moorhead’s are awarded attorneys’ fees and costs in
the amount of $110,993.62.
THUS DONE AND SIGNED, in Shreveport,
Louisiana, this 17th day of August, 2021.
54a
— APPENDIX J—
United States Court of Appeals
for the Fifth Circuit
NO. 20-30133
RYAN HAYGOOD;
HAYGOOD DENTAL CARE, L.L.C.,
Plaintiffs—Appellants,
versus
CAMP MORRISON; C. BARRY
OGDEN; KAREN MOORHEAD;
DANA GLORIOSO,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:13-CV-335
Summary Calendar
FILED September 4, 2020
Lyle W. Cayce, Clerk
OPINION
Before HAYNES, WILLET, and HO, Circuit Judges
55a
PER CURIAM: 1
This appeal concerns an attorney’s fee award.
Ryan Haygood and Haygood Dental Care, LLC
(collectively, “Haygood”) sued Camp Morrison, C.
Barry Ogden, Karen Moorhead, and Dana Glorioso
(collectively, “Appellees”), along with defendants not
part of this appeal. After dismissing Haygood’s claims,
the district court granted Appellees’ motion for
attorney’s fees and denied Haygood’s resulting motion
for reconsideration. Haygood now appeals. For the
following reasons, we DISMISS the appeal for want of
jurisdiction.
Under 28 U.S.C. § 1291, we have authority to
hear “appeals from all final decisions of the district
courts of the United States.” In most cases, “an order
is final only when it `ends the litigation on the merits
and leaves nothing for the court to do but execute the
judgment.’” Club Retro, L.L.C. v. Hilton, 568 F.3d 181,
214 (5th Cir. 2009) (quoting Coopers & Lybrand v.
Livesay, 437 U.S. 463, 467 (1978)). An order imposing
attorney’s fees that leaves the amount for “later
determination” is not final for purposes of appellate
review. Southern Travel Club. v. Carnival Air Lines,
986 F.2d 125, 131 (5th Cir. 1993) (“[A]n order
awarding attorney’s fees or costs is not reviewable on
Pursuant to 5TH CIRCUIT RULE 47.5, the court has
determined that this opinion should not be published and is not
precedent except under the limited circumstances set forth in
5TH CIRCUIT RULE 47.5.
1
56a
appeal until the award is reduced to a sum certain.”);
see also Pechon v. La. Dept. of Health, 368 F. App’x
606, 609–10 (5th Cir. 2010) (explaining that a claim
for attorney’s fees is “a separate action from one on the
merits” and leaving the amount in question is not a
final order).
On March 14, 2019, the district court granted a
motion for attorney’s fees in Appellees’ favor without
specifying the amount awarded. It then ordered
Appellees to file detailed time reports within twentyone days of the order so that it could determine a
reasonable amount for attorney’s fees. After an
extension, Appellees submitted a motion to file
detailed time reports with an attached exhibit
reflecting same. Thereafter, the district court granted
the motion to submit detailed time reports, but it has
not yet entered an order specifying the precise amount
of attorney’s fees awarded. Since no order exists
specifying the amount awarded in attorney’s fees, we
lack jurisdiction over this appeal.
DISMISSED.
57a
— APPENDIX K—
United States Court of Appeals
for the Fifth Circuit
NO. 20-30133
Summary Calendar
RYAN HAYGOOD; HAYGOOD DENTAL CARE,
L.L.C.,
Plaintiffs
—
Appellants,
versus
CAMP MORRISON; C. BARRY OGDEN; KAREN
MOORHEAD; DANA GLORIOSO,
Defendants
—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:13-CV-335
FILED September 4, 2020
Lyle W. Cayce, Clerk
Before HAYNES, WILLET, and HO, Circuit Judges.
58a
JUDGMENT
This cause was considered on the record on
appeal and the briefs on file.
IT IS ORDERED and ADJUDGED that the
appeal is DISMISSED for lack of jurisdiction.
IT IS FURTHER ORDERED that appellants
pay to appellees the costs on appeal to be taxed by the
Clerk of this Court.
59a
— APPENDIX L—
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
RYAN HAYGOOD, DDS, ET AL.
VERSUS.
BRIAN BEGUE, ET AL.
CIVIL ACTION NO. 13-0335
JUDGE S. MAURICE HICKS, JR
MAGISTRATE JUDGE HORNSBY
MEMORANDUM ORDER
Before the Court is Plaintiffs’ Motion for
Reconsideration of and/or to Alter or Amend the
Memorandum Ruling and Order Granting Attorney’s
Fees to Defendants Barry Ogden, Camp Morrison,
Dana Glorioso, and Karen Moorhead. See Record
Document 302. Plaintiffs contend that the Court’s
ruling is improper due to mistake and/or
inadvertence; is otherwise erroneous as a matter of
law; and/or is erroneous due to an intervening change
in controlling law. See id. Plaintiffs ask that the
award of attorney’s fees be vacated and reversed. See
id. Defendants Barry Ogden, Camp Morrison, Dana
Glorioso, and Karen Moorhead have opposed the
Motion for Reconsideration. See Record Document
305.
60a
This Court has reviewed all of the pertinent
parts of the record and likewise considered the legal
standards applicable to Rules 54, 59, and 60. Based on
the foregoing and the showing made by Plaintiffs in
the instant motion, the Motion for Reconsideration of
and/or to Alter or Amend the Memorandum Ruling
and Order Granting Attorney’s Fees to Defendants
Barry Ogden, Camp Morrison, Dana Glorioso, and
Karen Moorhead (Record Document 302) is hereby
DENIED.
IT IS SO ORDERED.
THUS DONE AND SIGNED, in Shreveport,
Louisiana, this 7th day of February, 2020.
61a
— APPENDIX M—
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
RYAN HAYGOOD, DDS, ET AL.
VERSUS.
BRIAN BEGUE, ET AL.
CIVIL ACTION NO. 13-0335
JUDGE S. MAURICE HICKS, JR
MAGISTRATE JUDGE HORNSBY
ORDER
Considering the foregoing Motion to Submit
Detailed Time Report submitted by Barry Ogden,
Camp Morrison, Karen Moorhead, and Dana Glorioso
(the “Motion”), I find that it has merit, and that
therefore
IT IS HEREBY ORDERED that the Motion be
and is hereby GRANTED, and that the Detailed
Time Report attached as Exhibit “A” to the Motion
will be submitted in the above-captioned and
numbered action.
THUS DONE AND SIGNED on this
21st day of May, 2019, at Shreveport,
Louisiana.
s/ Maurice Hicks, Jr., Chief Judge
UNITED STATES DISTRICT COURT
62a
— APPENDIX N—
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
RYAN HAYGOOD, DDS, ET AL.
VERSUS.
BRIAN BEGUE, ET AL.
CIVIL ACTION NO. 13-0335
JUDGE S. MAURICE HICKS, JR
MAGISTRATE JUDGE HORNSBY
ORDER
Based on the foregoing memorandum Ruling,
IT IS ORDERED that the Motion for
Attorney’s Fees (Record Document 230) filed by
Defendants Barry Ogden, Camp Morrison, Dana
Glorioso, and Karen Moorhead (collectively referred
to as “Defendants”) be and is hereby GRANTED. No
later than twenty-one days from the date of this
Order, Defendants are ordered to file a separate
motion to submit detailed time reports, such that a
lodestar analysis can be performed to determine the
amount of reasonable attorneys fees.
THUS DONE AND SIGNED, in Shreveport,
Louisiana, this 14th day of March, 2019.
63a
— APPENDIX O—
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
RYAN HAYGOOD, DDS, ET AL.
VERSUS.
BRIAN BEGUE, ET AL.
CIVIL ACTION NO. 13-0335
JUDGE S. MAURICE HICKS, JR
MAGISTRATE JUDGE HORNSBY
MEMORANDUM RULING
Before the Court is a Motion for Attorney's
Fees (Record Document 230) filed by Defendants
Barry Ogden, Camp Morrison, Dana Glorioso, and
Karen Moorhead (collectively referred to as
"Defendants"). Defendants seek to recover reasonable
attorney's fees under 42 U.S.C. § 1988(b) and La. R.S.
51:1409(A). Plaintiffs Ryan Haygood, D.D.S. and
Haygood Dental Care, LLC (hereinafter referred to as
"Dr. Haygood" or the "Haygood Plaintiffs") opposed
the motion. See Record Document 256. For the
reasons set forth below, the Motion for Attorney's
Fees is GRANTED.
64a
BACKGROUND
In March 2014, this Court granted Defendants'
Rule 12(b)(6) motion, dismissing the Haygood
Plaintiffs' Section 1983 claims as prescribed and
holding that the Sherman Act, state law defamation,
and Louisiana Unfair Trade Practices Act ("LUTPA")
claims failed under Rule 12(b)(6) and the
Twombly/lqbal standard. See Record Documents 110
& 111. All of the claims against Defendants were
dismissed with prejudice. See id. As to the Section
1983 claims, this Court reasoned:
Dr. Haygood filed a state court claim
which named these Defendants on September
27, 2011. However, no claim fora 42 U.S.C. §
1983 violation against these Defendants
occurred until the filing of the complaint in
the instant matter on February 13, 2013.
Because over two years elapsed between the
filing of the initial proceeding in state court
and the instant case, this Court finds that the
plaintiffs clearly knew, or should have known,
of the overt acts which might constitute a §
1983 violation at least two years before the
instant suit was filed. Therefore, this court
finds that the alleged wrongdoing under 42
U.S.C. § 1983 by the Defendants has
prescribed under Louisiana law.
...
65a
. . . Dr. Haygood received notice of the
revocation of his license on or about
November 8, 2010. . . . Therefore, the § 1983
claims against Defendants had already
prescribed when the federal suit was filed on
February 13, 2013.
The Court additionally notes that even if
this action was not prescribed, the Rule
12(b)(6) Motion filed by the Defendants
nonetheless would be granted because Dr.
Haygood's bald conclusory allegation that
these Defendants were involved in a
conspiracy with the Dental Board fails the
plausibility standard established in Twombly
and lqbal. See Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007); see also Ashcroft v. lqbal,
556 U.S. 662 (2009).
Record Document 110 at 5-6. This Court dismissed
the LUTPA claims, holding:
In the instant matter, Dr. Haygood fails to
allege any act by these Defendants which
would enable them to achieve an unfair
competitive advantage over Plaintiffs (no can
he since none of these Defendants are
dentists). Therefore, Defendants' Motion to
Dismiss this claim is GRANTED.
Id. at 12.
66a
LAW AND ANALYSIS
Defendants argue they are the prevailing
parties with respect to the Haygood Plaintiffs' Section
1983 claims and LUPTA claims; thus, they maintain
they are entitled to reasonable attorney's fees under
Section 1988(b) and Section 1409, "as the [Section]
1983 and LUPTA claims against him were frivolous
and brought in bad faith." Record Document 189 at 2.
Section 1988(b) provides, in pertinent part:
In any action or proceeding to enforce a
provision of section[] . . . 1983 . . ., the court,
in its discretion, may allow the prevailing
party, other than the United States, a
reasonable attorney's fee as part of the costs.
42 U.S.C. § 1988(b). In the context of prevailing
defendants, Section 1988(b) is meant "to protect
defendants from burdensome litigation having no
legal or factual basis." Fox v. Vice, 563 U.S. 826, 833,
131 S.Ct. 2205, 2213 (2011) (citation omitted). Thus,
Section 1988 "authorizes a district court to award
attorney's fees to a defendant upon a finding that the
plaintiff's action was frivolous, unreasonable, or
without foundation." Id. (citation and internal
quotation omitted). The Fox court further reasoned:
[A] defendant may deserve fees even if not
all the plaintiff's claims were frivolous. . . .
That remains true when the plaintiff's suit
also includes non-frivolous claims. The
67a
defendant, of course, is not entitled to any fees
arising from these non-frivolous charges. But
the presence of reasonable allegations in a
suit does not immunize the plaintiff against
paying for the fees that his frivolous claims
imposed.
Id. at 834, 131 S.Ct. at 2214 (internal citations
omitted).
Here, this Court held that "the plaintiffs clearly
knew, or should have known, of the overt acts which
might constitute a § 1983 violation at least two years
before the instant suit was filed." Record Document
110 at 5. Claims that are clearly time-barred are
meritless and are properly deemed frivolous. See
Provensal v. Gaspard, 524 F. App'x 974, 977 (5th Cir.
2013); see also Willis v. W. Carroll Parish Det. Ctr.,
No. 09-1716, 2010 WL 2291994 (W.D. La. Apr. 28,
2010); report and recommendation adopted, 09-1716,
2010 WL 2291996 (W.D. La. June 2, 2010); Brown v.
Pool, 79 F. App'x 15 (5th Cir. 2003); Zihlaysky v. Police
Dep't of Bossier City, 244 F.3d 136 (5th Cir. 2000);
Williams v. Connick, 30 F.3d 1495 (5th Cir. 1994).
Section 1409(A) provides, in pertinent part:
Upon a finding by the court that an action
under this Section was groundless and
brought in bad faith or for purposes of
harassment, the court may award to the
defendant reasonable attorney fees and costs.
68a
La. R.S. 51:1409(A). Section 1409(a) "is penal in
nature and is subject to reasonably strict
construction." Walker v. Hixson Autoplex of Monroe,
L.L.C., 51,758 (La. App. 2 Cir. 11/29/17), citing
Double—Eight Oil & Gas, L.L.C. v. Caruthers
Producing Co., Inc., 41,451 (La. App. 2 Cir. 11/20/06),
942 So.2d 1279. Courts have "discretion in
determining whether to award attorney's fees under
the statute." See id.
In its March 2014 ruling, this Court concluded
that the Haygood Plaintiffs' failed to allege any act by
Defendants which would enable them to achieve an
unfair competitive advantage. See Record Document
110 at 12. The Court further noted that such
allegations were not possible because none of these
Defendants were dentists. See id.
Thus, the
undersigned believes that the totality of the record
establishes that the Haygood Plaintiffs' LUPTA
claims were groundless and were brought in bad faith
or for purposes of harassment.
CONCLUSION
The Haygood Plaintiffs' Section 1983 were
frivolous and their LUPTA claims were groundless
and brought in bad faith or for purposes of
harassment. Accordingly, Defendants' Motion for
Attorney Fees (Record Document 230) be and is
hereby GRANTED. No later than twenty-one days
from the date of this Memorandum Ruling,
Defendants shall file a separate motion to submit
detailed time reports, such that a lodestar analysis
69a
can be performed to determine the amount of
reasonable attorneys fees. IT IS SO ORDERED.
THUS DONE AND SIGNED, in Shreveport,
Louisiana, this 14th day of March, 2019.
s/ Maurice Hicks, Jr., Chief Judge,
UNITED STATES DISTRICT COURT
70a
— APPENDIX P—
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
CIVIL ACTION NO. 13-CV-0335
RYAN HAYGOOD, DDS and HAYGOOD
DENTAL CARE, LLC
VERSUS
JUDGE MAURICE
HICKS, JR.
BRIAN BEGUE, ET AL
MAGISTRATE JUDGE
HORNSBY
MEMORANDUM RULING
Before this Court is a Motion to Dismiss
(Record Document 29) filed by Defendants Barry
Odgen, Camp Morrison, Dana Glorioso, and Karen
Moorhead (hereafter referred to as Defendants)
under Rule 12(b)(6) and in the alternative, Motion for
Summary Judgment on the theory that the claims are
not yet ripe and, thus this Court lacks subject matter
jurisdiction See Record Document 29. For the reasons
which follow, the Motion to Dismiss under Rule
12(b)(6) is GRANTED.
BACKGROUND
The allegations in the instant suit relate to
formal complaints by patients and other dentists
which eventually led to an investigation and
administrative proceeding wherein Dr. Ryan
71a
Haygood’s dental license was revoked by the
Louisiana State Board of Dentistry (“Dental Board”).
The Dental Board initially became involved because
of a complaint against Dr. Haygood, claiming that he
recommended extensive and expensive treatment
plans after over-diagnosing/unnecessarily diagnosing
patients with peridontal disease. The investigation
and resulting administrative proceeding took place
over a three year period.
On November 8, 2010, at the conclusion of four
days of adversarial hearings, which included the
presentation of witnesses, experts and medical /
dental evidence, a three-member disciplinary panel
revoked Dr. Haygood’s dental license and levied fines
against him. This punishment was imposed due to
Dr. Haygood’s violations of the Dental Practice Act.
Louisiana Revised Statute Section 37:751 et seq.
Dr. Haygood appealed the November 8, 2010
decision of the Dental Board to the Civil District
Court of Orleans Parish (“CDC”) Docket No. 201012060. On May 31, 2011, the CDC affirmed some of
the findings, but remanded part of the case the to
Dental Board due to the erroneous inclusion of
charges against Dr. Haygood that were previously
dismissed. In all other respects, the CDC affirmed the
Dental Board’s decision. Dr. Haygood appealed the
portion of the May 31, 2011 decision of the CDC which
was affirmed to the Louisiana Fourth Circuit Court
of Appeal, Docket No. 2011-CA-1327.
72a
On August 29, 2011, the Dental Board issued
a decision regarding the remanded portion of the suit.
It again levied fines against Dr. Haygood and
affirmed the revocation of his dental license in its
Amended Decision After Remand. This decision was
also appealed by Dr. Haygood to the CDC, which
affirmed the ruling on December 9, 2011. The two
decisions by the CDC (May 31, 2011 and August 29,
2011) were consolidated on appeal to the Louisiana
Fourth Circuit Court of Appeal. The Fourth Circuit
vacated and remanded the Dental Board’s ruling,
finding that the Dental Board’s independent counsel
participated in the administrative hearing in dual
roles as prosecutor and adjudicator in violation of Dr.
Haygood’s due process rights.
Plaintiffs, Ryan Haygood, DDS and his dental
limited liability company (hereafter referred to as Dr.
Haygood or Plaintiffs), brought the instant lawsuit
against Ogden, Morrison, Glorioso, and Moorhead,
among other defendants, on February 13, 2013,
alleging damages arising out of violations of 42 U.S.C.
1983, and 15 U.S.C. § 1 and § 2, as well as Louisiana
state law claims for defamation and for violations of
the Louisiana Unfair Trade Practices Act - LSA-R.S.
51:1409 et seq. (Document 71-2). The defendant filed
a Motion to Dismiss for failure to state a claim and
dismissal due to untimeliness in regards to violations
of 42 U.S.C. § 1983, antitrust violations, defamation,
and violations of the Louisiana Unfair Trade
Practices Act.
73a
LAW AND ANALYSIS
A. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) allows
for dismissal of an action “for failure to state a claim
upon which relief can be granted.” While a complaint
attacked by a Rule 12(b)(6) motion does not need
detailed factual allegations, in order to avoid
dismissal, the plaintiff’s factual allegations “must be
enough to raise a right to relief above the speculative
level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555, 127 S.Ct. 1955, 1964-65 (2007); see also Cuvillier
v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). A
plaintiff’s obligation “requires more than labels and
conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. The
Supreme Court recently expounded on the Twombly
standard, explaining that a complaint must contain
sufficient factual matter to state a claim to relief that
is plausible on its face. See Ashcroft v. Iqbal, – U.S. –
, 129 S.Ct. 1937, 1949 (2009). “A claim has facial
plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Id. In evaluating a motion to dismiss, the
Court must construe the complaint liberally and
accept all of the plaintiff’s factual allegations in the
complaint as true. See In re Katrina Canal Breaches
Litigation, 495 F.3d 191, 205 (5th Cir. 2009).
Although courts generally are not permitted to
review materials outside of the pleadings when
74a
determining whether a plaintiff has stated a claim for
which relief may be granted, there are limited
exceptions to this rule. Specifically, a court may
consider documents attached to a Fed. R. Civ. P.
12(b)(6) motion to be part of the pleadings if the
plaintiff refers to those documents and they are
central to the claim. See Collins v. Morgan Stanley
Dean Witter, 224 F.3d 496, 498-499 (5th Cir. 2000);
Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d
285, 288 (5th Cir. 2004). Additionally, pleadings filed
in state or other federal district courts are matters of
public record and the Court may take judicial notice
of those documents in connection with a Rule 12(b)(6)
motion to dismiss. See Cinel v. Connick, 15 F.3d
1338, 1343 (5th Cir. 1994).
B. Legal Analysis
1. 42 U.S.C. § 1983
Dr. Haygood claims a violation by the
Defendants under Title 42, Section 1983 of the United
States Code. To state a claim under this statute, the
plaintiff must establish that he was deprived of a right
secured by the Constitution or laws of the United
States, and that the alleged deprivation was
committed under the color of state law. See American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119
S.Ct. 977, 985 (1999). “[T]he under color-of-state-law
element of § 1983 excludes from its reach merely
private conduct, no matter how discriminatory or
wrongful.” Id.
75a
Dr. Haygood alleges that these Defendants,
together with the other named defendants, including
the state dental board, conspired to limit competition
among dentists in the Shreveport/ Bossier City area.
Dr. Haygood claims that the defendants (individually
and in conspiracy) “deprived and denied Plaintiffs of
their constitutional and/or statutory rights.” [Record
Document 71-2, § 167]. Defendants deny the
allegation, and further assert that the § 1983 claim for
the alleged wrongdoing has prescribed.
The Court will first address the prescription
issue. Claims brought under Title 42, Section 1983 of
the United States Code are subject to state statutes
of limitation for personal injury actions. Owens v.
Okure, 488 U.S. 235, 249-251 (1989). In Louisiana,
there is a one (1) year prescriptive period for § 1983
claims, as established by LSA-C.C. Art. 3492.
Hawkins v. McHugh, 46 F.3d 10, 12 (5th Cir. 1995);
Smith v. Humphrey, 10-1070, 2012 WL 1970883 *2
(W.D. La. 04/09.12); adopted by 2012 WL 1969317. In
the case of a conspiracy, the prescriptive period
begins to toll from the moment that the plaintiff knew
or should have known of the overt acts involved in the
conspiracy. Helton v. Clements, 832 F.2d 332, 335 (5th
Cir. 1987); Smith, supra at *3. Therefore, the claims
asserted in the instant case are subject to a one (1)
year prescriptive period.
Dr. Haygood filed a state court claim which
named these Defendants on September 27, 2011.
However, no claim for a 42 U.S.C. § 1983 violation
76a
against these Defendants occurred until the filing of
the complaint in the instant matter on February 13,
2013. Because over two years elapsed between the
filing of the initial proceeding in state court and the
instant case, this Court finds that the plaintiffs
clearly knew, or should have known, of the overt acts
which might constitute a § 1983 violation at least two
years before the instant suit was filed. Therefore, this
court finds that the alleged wrongdoing under 42
U.S.C. § 1983 by the Defendants has prescribed
under Louisiana law.
The Court finds the Defendant’s argument
citing Brossette v. City of Baton Rouge, 837 F.Supp.
759, 762 (E.D. La. 1993) compelling. In Brossette, a
bar owner’s liquor license was suspended by the
Alcoholic Beverage Control Board (“ABCB”) for
violations of a Baton Rouge ordinance. The
suspension was appealed through the Louisiana
courts, and the Louisiana Supreme Court ultimately
reversed the decision and remanded the case for the
district court for a new trial. Id. at 761. Following the
Louisiana Supreme Court decision, Brosette filed a §
1983 claim in federal court. The federal court
determined that the plaintiff’s cause of action arose
from a “single act” against Brossette, the suspension
of this license. Therefore, the prescriptive period
began to toll from the day he received notice that his
license was suspended. Id. At 763. Accordingly, the
claim was already prescribed on the day he filed the
federal proceedings, more than a year after Brossette
received notice of the suspension. Id. At 762.
77a
The rationale applied in Brossette is directly
on point in the instant matter. Dr. Haygood received
notice of the revocation of his license on or about
November 8, 2010. This single act of the Dental Board
revoking Dr. Haygood’s Dental License provides the
date from which the one-year prescriptive period
began to toll. Therefore, the § 1983 claim against the
Plaintiffs was prescribed when suit was filed on
February 13, 2013.
The Court additionally notes that even if this
action was not prescribed, the Rule 12(b)(6) Motion
filed by the Defendants nonetheless would be granted
because Dr. Haygood’s bald conclusory allegation
that these Defendants were involved in a conspiracy
with the Dental Board fails the plausibility standard
established in Twombly and Iqbal. See Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
B. 15 U.S.C. § 1 and § 2
The Sherman Act, 15 U.S.C. § 1 and § 2,
provides the framework to forbid monopolies within
the United States. To establish a violation under
Section 1, the plaintiff must prove: (1) the defendants
engaged in a conspiracy, (2) that restrained trade (3)
in the relevant market. Gold Bridge Technology, Inc.
v. Motorola, Inc., 547 F.3d 266, 271 (5th Cir. 2008),
cert denied 556 U.S._____(2009); Apani Sw. Inc. v.
Coca-Cola Enter., Inc., 300 F.3d 620, 627 (5th Cir.
2002); Johnson v. Hosp. Corp. Of Am., 95 F.3d 383,
392 (5th Cir. 1996). The first element that must be
78a
shown by the plaintiff is that the defendants engaged
in a conspiracy. To establish the first element, “the
complaint must contain enough factual matter to
suggest that an agreement among the alleged
conspirators was actually made.” Dowdy v. Dowdy
Partnership v. Arbitron, Inc., 2010 WL 3942755, *3
(S.D. Miss. 2010)(citing Twombly at 556). The
Supreme Court in the Twombly decision further
provided:
Asking for plausible grounds to infer an
agreement does not impose a probability
requirement at the pleading stage; it simply
calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence
of illegal agreement.
Twombly at 545.
With regard to allegations of a conspiracy,
courts have held that plaintiffs “must do more than
plead facts that may be consistent with a conspiracy
– [the plaintiffs] must plead facts that suggest a prior
agreement between the Defendants.” Dowdy at *4.
Here, Plaintiffs allege that the defendants
were involved in a conspiracy to purposefully restrain
trade among dentists in Northwest Louisiana. The
allegation is based on claimed circumstantial
evidence of communications between various named
defendants. As the Defendants point out, the
Plaintiffs fail to point to any facts regarding “(1)
when, where, or how a conspiracy was formed, (2)
79a
that the Defendants, in fact, agreed to restrain the
trade of dental services, (3) that Defendants
communicated regarding the restraint of trade, or (4)
that Defendants shared a common intent to restrain
trade.” Record Document 29-1 at p. 28. Accordingly,
the plaintiff’s compliant of a conspiracy as required
under § 1 is simply a bare allegation and fails to meet
the necessary pleading requirements established in
Twombly.
Likewise, Dr. Haygood’s allegation under § 2
also fails to meet the minimum requirement
established by the Twombly standard. Section 2
states that it is illegal to “monopolize, or attempt to
monopolize, or combine or conspire with any other
person or persons, to monopolize any part of the trade
or commerce among the several States.” Further,
Section 2 “covers both concerted and independent
action, but only if that action ‘monopolize[s]’ or
‘threatens actual monopolization,’ a category that is
narrower than restraint of trade.” Am. Needle, Inc. v.
Nat’l Football League, 130 S. Ct. 2201, 2208-2209
(2010)(internal citations omitted). To succeed under
Section 2, “it is generally required that...a plaintiff
must prove (1) that the defendant has engaged in
predatory or anticompetitive conduct with (2) a
specific intent to monopolize and (3) a dangerous
probability of achieving monopoly power.” Spectrum
Sports, Inc. V. McQuillan, 506 U.S. 447, 113 S.Ct.
884, 890-891 (1983). Specifically, a plaintiff must
show “the defendant’s ability to lessen or destroy
competition in that market.” Id. at 457.
80a
In the instant matter, Dr. Haygood fails to provide any
plausible facts that these non-dentist Defendants had
a “dangerous probability of actual monopolization.” As
mentioned supra, Dr. Haygood failed to provide
plausible facts that these Defendants were involved in
a conspiracy. 2
Therefore, Plaintiffs’ claims for conspiracy
against these Defendants are DISMISSED pursuant
to FRCP 12(b)(6).
C. State Law Defamation Claim
Dr. Haygood’s next cause of action against
these Defendants is for defamation under Louisiana
state law. Under Louisiana law, defamation, which is
a delictual action, is subject to a one year prescriptive
period. La. C.C. art. 3492. W.T.A. v. N.Y., 2010-839
(La. App. 3rd Cir. 3/9/11) 58 So.3d 612, 617, writ
denied, 2011-0491 (La. 05/06/11) 250 So.3d 1285;
Farber v. Bobear, 2010-0985 (La. App. 4th Cir.
1/19/11), 56 So.3d 1061, 1069; Doughty v. Cummings,
44,812 (La. App. 2nd Cir. 12/30/09), 28 So.3d 580,
583, writ denied, 2010-0251 (La. 04/09/10), 31 So.3d
394; Clark v. Wilcox, 2004 - 2254 (La. App. 1st Cir.
12/22/05), 928 So.2d 104, 112,writ denied, 2006-0185
2 “One who does not compete in a product market or conspire
with a competitor cannot be held liable as a monopolist in that
market.” White v. Rockingham Radiologists, Ltd., 820 F.2d 98,
104 (4th Cir. 1987).
81a
(La. 6/2/06), 929 So.2d 1252; see also Federal &
Deposit Co. of Maryland v. Smith, 730 F.2d 1026,
1035 (5th Cir. 1984). Under Article 3492 of the
Louisiana Civil Code, prescription in a defamation
case tolls from the date injury or damage is sustained.
Farber, 56 So.3d at 1069. Each publication or
communication of a defamatory statement is a
separate cause of action; therefore, multiple
publications or communications are independent and
cannot be considered to be continuous. Wiggins, 475
So.2d at 781; see also Collinson v. Tarver Land Dev.,
LLC., 111787, 2012 WL 688551 *1 (W.D. La.
02/01/2012).
The defendant pleading prescription typically
bears the burden of proving that the claim has
prescribed. However, when the face of the petition
reveals that the plaintiff’s claim has prescribed, the
burden shifts to the plaintiff to show why the claim
has not prescribed. Hogg v. Chevron USA, Inc., 20092632 (La. 7/6/10), 45 So.3d 991, 998; W.T.A., 58 So.3d
at 617; Farber 56 So.3d at 1069.
According to the Complaint the instant case,
even if a basis existed for a cause of action for
defamation, the last administrative hearing which
would have given rise to this cause of action occurred
in October, 2010. See Record Document 71-2.
At the very latest, the claimed damages from
the alleged defamation would have been known to Dr.
Haygood and, therefore, by his one-person dental
limited liability company, when he learned of the
82a
revocation of his dental license in November, 2010 or
even after the amended decision after remand in
August, 2011. The instant lawsuit was not filed until
February 13, 2013; however, Dr. Haygood claims that
the filing of the state court proceedings against these
defendants in the First Judicial District, Caddo
Parish, Louisiana on September 26, 2011,
interrupted prescription.
However, Dr. Haygood fails to satisfy the
minimum pleading requirements for a defamation
suit. Under Louisiana law, Plaintiffs must allege all
of the following elements for a defamation: (1)
defamatory words; (2) publication or communication
to persons other than the one defamed; (3) falsity; (4)
malice, actual or implied; and (5) resulting injury.”
While under Louisiana law a quoted statement is not
required, the plaintiff must provide reasonable
specificity. See Badeaux v. Southwest Computer
Bureau, Inc., 2005-0612 (La. 3/17/06); 929 So.2d
1211, 1218. In the instant matter, Dr. Haygood’s
complaint fails to meet the Badeaux requirements.
Accordingly, Defendants’ Motion to Dismiss is
GRANTED.
D. Louisiana Unfair Trade Practices Act - LSAR.S. 51:1401 et seq.
The next cause of action brought by the
Plaintiffs is under the Louisiana Unfair Trade
Practices Act. This act grants a private action to:
“Any person who suffers any ascertainable loss of
money or movable property, corporeal or incorporeal,
83a
as a result of the use of employment by another
person of an unfair or deceptive method, act, or
practice declared unlawful by R.S. 51:1405.” La. R.S.
51:1409. “Unfair methods of competition and unfair
or deceptive acts or practices in the conduct of any
trade or commerce are hereby declared unlawful.” La.
R.S. 51:1405. “‘Trade’ or ‘commerce’ means the
advertising, offering for sale, sale, or distribution of
any services and any property, corporeal or
incorporeal, immovable or movable, and any other
article, commodity, or thing of value wherever
situated, and includes any trade or commerce directly
or indirectly affecting the people of the state.” La.
R.S. 51:1402. The Court already discussed conspiracy
in the context of Section 1 of the Sherman Act, the
Plaintiff’s bald allegation of a conspiracy fails to meet
the necessary pleading requirements under Federal
Rule of Civil Procedure 12. Supra, p. 8. For those
same reasons, the Court fails to find that a conspiracy
existed in the LUTPA context. Therefore, the Court
will analyze the LUTPA claims against these
Defendants on an individual basis.
LSA-R.S. 51:1405(A) prohibits any “unfair or
deceptive acts or practices in the conduct of any trade
or commerce.” The Courts have the power to
determine, on a case-by-case basis, the type of
conduct that falls within that category. Sheramine
Services, Inc. v. Shell Deepwater Production
Company, Inc., 2009-1633 (La. 04/23/10), 35 So.3d
1053, 1059. The Sheramine decision provides
additional guidance. There the Louisiana Supreme
84a
Court required that a plaintiff must allege conduct
that “offends established public policy and is
immoral, unethical, oppressive, unscrupulous or
substantial[ly] injurious.” Id.; Cargill, Inc. v.
Degesch America, Inc., 875 F. Supp. 2d 667, 676
(E.D. La. 2012); Jones Energy Co., LLC v.
Chesapeake Louisiana, L.P., 873 F. Supp. 2d 779,
789 (W.D. La. 2012).
In the instant matter, Dr. Haygood fails to
allege any act by these Defendants which would
enable them to achieve an unfair competitive
advantage over Plaintiffs (nor can he since none of
these Defendants are dentists). Therefore,
Defendants’ Motion to Dismiss this claim is
GRANTED.
CONCLUSION
Based on the foregoing, the Motion for
Summary Judgment filed by these Defendants is
GRANTED. Court finds that: (1) Plaintiffs claim
under 42 U.S.C. § 1983 has prescribed; and (2)
Plaintiffs failed to meet the pleading standard
required under Twombly and Iqbal regarding the
alleged violations of 15 U.S.C. §1 and §2, state
defamation laws, and LUTPA. Accordingly, all of
Plaintiffs claims against Barry Ogden, Camp
Morrison, Dana Glorioso, and Karen Moorhead are
hereby DISMISSED WITH PREJUDICE.
85a
THUS DONE AND SIGNED, in
Shreveport, Louisiana, this 31st day of March,
2014.
86a
— APPENDIX Q—
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
RYAN HAYGOOD, DDS, ET AL.
VERSUS.
BRIAN BEGUE, ET AL.
CIVIL ACTION NO. 13-0335
JUDGE S. MAURICE HICKS, JR
MAGISTRATE JUDGE HORNSBY
ORDER
Considering Defendants, Barry Ogden, Camp
Morrison, Dana Glorioso, and Karen Moorhead ’s,
Motion to Dismiss [Record Document 29], IT IS
ORDERED that the Motion is GRANTED. Having
thoroughly reviewed the record, and the briefs filed
therein, the Court finds: (1) Plaintiffs claim under 42
U.S.C. § 1983 has prescribed; and (2) Plaintiffs failed
to meet the pleading standard required under
Twombly and Iqbal regarding the alleged violations
of 15 U.S.C. §1 and §2, state defamation laws, and
LUTPA.
Therefore, the Defendants’ Motion to Dismiss
[Record Document 29] is GRANTED. IT IS
ORDERED that all of Plaintiffs claims against
Barry Ogden, Camp Morrison, Dana Glorioso, and
Karen Moorhead are hereby DISMISSED WITH
PREJUDICE.
.
87a
Therefore, THUS DONE AND SIGNED in
Shreveport, Louisiana, this 31st day of March, 2014.
.
88a
— APPENDIX R—
SUPREME COURT OF LOUISIANA
NO. 2012-C-2333
C. RYAN HAYGOOD, DDS
VERSUS
LOUISIANA STATE BOARD OF DENTISTRY
ORDER
IN RE: Louisiana State Board of Dentistry;
Defendant; Applying For Writ of Certiorari and/or
Review, Parish of Orleans, Civil District Court Div. K,
No. 2010-12060 C/W 11-10167; o the Court of Appeal,
Fourth Circuit, No. 2011-CA-1327 C/W 2012-0214
C/W 2010-0215;
_ _ _ _ _ _
December 14, 2012
Denied.
GGG
BJJ
JPV
JTK
MRC
WEIMER, J., would grant.
.
89a
— APPENDIX S—
FOURTH CIRCUIT COURT OF APPEAL
STATE OF LOUISIANA
NO. 2011-CA-1327
C. RYAN HAYGOOD, DDS
VERSUS
LOUISIANA STATE BOARD
OF DENTISTRY
CONSOLIDATED
WITH:
CONSOLIDATED
WITH:
C. RYAN HAYGOOD,
D.D.S.
C. RYAN HAYGOOD,
D.D.S.
VERSUS
VERSUS
LOUISIANA STATE
BOARD OF
DENTISTRY
LOUISIANA STATE
BOARD OF
DENTISTRY
NO. 2012-CA-0214
NO. 2012-CA-0215
EXHIBIT “A”
.
90a
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2010-12060, C/W 10-12060, C/W 11-10167,
DIVISION "K-5"
Honorable Herbert A. Cade, Judge
******
Judge Tern F. Love
(Court composed of Judge James F. McKay III, Judge
Terri F. Love, Judge Roland L. Belsome)
BELSOME, J., CONCURS WITH REASONS
Scott L. Zimmer
COOK YANCEY KING & GALLOWAY333 Texas
Street, Suite 1700, P. O. Box 22260, Shreveport, LA
71120--2260
COUNSEL FOR PLAINTIFF/APPELLANT
M. Thomas Arceneaux
BLANCHARD WALKER O'QUIN & ROBERTS
400 Texas Street, Suite 1400
P.O. Drawer 1126
Shreveport, LA 71163—1126
COUNSEL FOR DEFENDANT/APPELLEE
VACATED AND REMANDED
September 26, 2012
.
91a
OPINION
Dr. C. Ryan Haygood appeals the decision of the
Louisiana State Board of Dentistry to permanently
revoke his dentistry license. Dr. Haygood maintains
that the Board's decision cannot be upheld because
the Board's independent counsel, who is also its
general counsel, participated in the administrative
hearing in dual roles as prosecutor and adjudicator.
After conducting a de novo review, we find the
combination of the Board's general counsel's roles of
prosecutor and adjudicator violated Dr. Haygood's due
process
rights.
We
find
the
Board
improperly combined the prosecutorial and judicial
functions by allowing its general counsel, Mr. Brian
Begue, to serve as the prosecutor, general counsel,
panel member, and adjudicator for the proceedings
against Dr. Haygood. We hold this conduct is violative
of the Louisiana Administrative Procedure Act and
Dr. Haygood's due process right to a neutral
adjudicator and a fair hearing.
We find the Louisiana State Board of
Dentistry's decision to revoke Dr. C. Ryan Haygood's
dental license is arbitrary and capricious; therefore,
we reverse the trial court's judgment which affirmed
the revocation of Dr. Haygood's license and remand
this matter to the Board for a new hearing.
FACTS AND PROCEDURAL HISTORY
The Louisiana State Board of Dentistry
("Board") opened an investigation of Dr. C. Ryan
.
92a
Haygood, D.D.S. in 2007 after receiving complaints
from some of his patients regarding the treatment
plans he recommended and the dental care that he
provided. Prior to filing formal charges against Dr.
Haygood, an informal resolution conference was held,
with Dr. Haygood denying all allegations of
wrongdoing. Subsequent to Dr. Haygood's denial of
the charges against him, Board member, Dr. Conrad
McVea, directed the Board's investigator, Camp
Morrison, "to send people in" to Dr. Haygood's office.
According to Mr. Morrison, this was the first time that
the Board had "sent people in to act as patients."
Mr. Morrison engaged multiple individuals at
an hourly rate to pose as patients who purported to
have various periodontal symptoms and complications
and sought treatment from Dr. Haygood based upon
their alleged conditions, including Dana Glorioso and
Karen Moorehead. Ms. Glorioso worked for Dr. Louis
Joseph, who was an active Board member at the time
he recommended her to Mr. Morrison. Ms. Glorioso
used the alias "Dana Brister" when she was examined
Dr. Haygood. Karen Moorehead was recommended by
Dr. White Graves, a former Board member and Ms.
Moorehead's employer. Ms. Moorehead used the alias
"Karen Hill" when she was treated by Dr. Haygood.
Seven other patients were involved in the
investigation against Dr. Haygood.
Formal charges were filed against Dr. Haygood
at the conclusion of the investigation. The Board
formally charged him with violating La. R.S. 37:776
.
93a
(A)(16) (Charge 1) on nine occasions (Specifications 1
through 9), La. R.S. 37:776(a)(19) and La. R.S.
37:776(A)(15) (Charge 2) on three occasions
(Specifications 1 through 3) and La. R.S. 37:776(A)(7)
and (8) (Charge 3) on three occasions (Specification 1
through 3). The nine specifications in Charge 1
alleged that Dr. Haygood engaged in conduct
intended to deceive or defraud the public by
fraudulently diagnosing periodontal disease and
other dental conditions and intending to deceive the
individuals regarding the necessity of treatment.
Charge 2 alleged that Dr. Haygood improperly offered
discounts in exchange for patient referrals. Charge 3
alleged Dr. Haygood failed to satisfy the prevailing
acceptable standard of dental practice. Charge 3 and
all specifications within it were dismissed by the
Board's complaint counsel prior to deliberation.
Four different hygienists were involved with
the care of the patients included in the charges
against Dr. Haygood; however, only two of Dr.
Haygood's hygienists, Julie Snyder and Wendy
Greene, were formally charged and faced disciplinary
action by the Board.
The Board's complaint counsel prosecuted the
charges against Dr. Haygood. The Board's general
counsel, Mr. Begue, was engaged by the Board to
serve as independent counsel to rule on evidentiary
matters. The three Board members who comprised
the disciplinary panel for Dr. Haygood's hearing were
.
94a
Doctors Samuel Trinca, Dean Manning, and James
Moreau, Jr.
At the conclusion of four days of testimony, the
Board found Dr. Haygood guilty of eight
specifications under two separate charges, ordered
permanent revocation of his dentistry license, and
assessed the maximum monetary fine allowed by law
$40,000, awarding all costs at $133,074.02, for a total
of $173,074.02.
Dr. Haygood appealed the Board's decision to
the trial court, and posted the proper security. The
trial court enjoined the Board from enforcing its
decision for the maximum amount of time allowed
under the Dental Practice Act. The court also
assessed costs against Dr. Haygood in the amount of
$133,074.02.
After a two-day hearing, the trial court
rendered judgment, which reversed the Board's
decision to delete findings of fact as to which both
parties agreed were either withdrawn during the
administrative trial, or for which no evidence was
adduced. The trial court affirmed the remainder of
the findings, but remanded to consider whether the
sanctions previously imposed remained appropriate.
The panel members subsequently issued an
Amended Decision which, pursuant to the trial
court's Judgment, eliminated the findings. However,
the discipline remained. After the Board's complaint
counsel filed a motion to amend, the Board issued an
.
95a
Amended Decision After Remand, deleted the $5,000
fine imposed for the Specification that had been
removed by the trial court, but maintained the
permanent license revocation, the $35,000 fine, and
costs.
Dr. Haygood filed a Petition for Review with
the trial court, contesting the Board's Amended
Decision After Remand. The trial court issued a
Judgment affirming the Amended Decision After
Remand.
Dr. Haygood timely appealed both Judgments
issued by the trial court.
LAW AND DISCUSSION
Standard of Review
The trial court applies the manifest error
standard of review in reviewing the facts as
determined by the administrative tribunal; the trial
court applies the arbitrary and capricious test in
reviewing the administrative tribunal's conclusions
and its exercise of discretion. Save Ourselves, Inc. v.
Louisiana Envtl. Control Comm 'n, 452 So. 2d 1152,
1159 (La. 1984); Rochon v. Whitley, 96-0835, p. 5 (La.
App. 1 Cir. 2/14/97), 691 So. 2d 189, 192. An aggrieved
party may obtain review of any final judgment of the
district court by appeal to the appropriate court of
appeal. "On review of the district court's judgment, no
deference is owed by the court of appeal to factual
findings or legal conclusions of the district court, just
as no deference is owed by the Louisiana Supreme
.
96a
Court to factual findings or legal conclusions of the
court of appeal." Eicher v. Louisiana State Police,
Riverboat Gaming Enforcement Div., 97-0121, p. 5 n.
5. See LA. CONST. art. V, § 5(C); Donnell v. Gray, 215
La. 497, 41 So. 2d 66, 67 (1949).
Moreover, "[a]ppellate review of a question of
law involves a determination of whether the lower
court's interpretive decision is legally correct."
Johnson v. Louisiana Tax Comm 'n, 01-0964, p. 2 (La.
App. 4 Cir. 1/16/02), 807 So. 2d 329, 331. The trial
court is required to conduct its review upon the record
that was before the Board. Crawford v. Am. Nat'l
Petroleum Co., 00-1063, p. 6 (La. App. 1 Cir.
12/28/01), 805 So. 2d 371, 377. It considers only facts
on the Board's record and questions of law. Id.
According to the Louisiana Supreme Court in St.
Pierre's Fabrication and Welding, Inc. v. McNamara,
495 So. 2d 1295, 1298 (La. 1986), the Board's findings
of fact are to be accepted by the reviewing trial court
where there is substantial evidence in the record to
support them. These findings of fact are not to "be set
aside unless they are manifestly erroneous in view of
the evidence on the entire record." Id. at 1298. The
Board's decision must be affirmed absent legal error
or a failure to follow the correct procedural standards.
Collector of Revenue v. Murphy Oil Co., 351 So. 2d
1234, 1236 (La. App. 4th Cir. 1977); Crawford, supra.
The standard of judicial review of a decision of
an agency is set forth in La. R.S. 37:786 and La. R.S.
49:964(G). La. R.S. 49:964(G) provides that:
.
97a
the court may reverse or modify the
decision if substantial rights of the
appellant have been prejudiced because
the administrative findings, inferences,
conclusions, or decisions are (1) in
violation of constitutional or statutory
provisions; (2) in excess of the agency's
statutory authority; (3) made upon
unlawful procedure; (4) affected by error of
law; (5) arbitrary, capricious, or an abuse
of discretion; or (6) manifestly erroneous.
The manifest error test is used in reviewing
the facts as found by the administrative tribunal; the
arbitrary and capricious test is used in reviewing the
administrative tribunal's conclusions and its exercise
of discretion. Save Ourselves, 452 So. 2d at 1159. On
legal issues, the reviewing court gives no special
weight to the findings of the administrative tribunal,
but conducts a de novo review of questions of law and
renders judgment on the record. See State, Through
Louisiana Riverboat Gaming Comm 'n v. Louisiana
State Police Riverboat Gaming Enforcement Div., 952355, p. 5 (La. App. 1 Cir. 8/21/96), 694 So. 2d 316,
319.
Commingling of Roles
Dr. Haygood argues that he was not afforded
due process at the hearing before the Board. He also
contends that during four days of testimony, Mr.
Begue "repeatedly interfered and zealously
advocated on behalf of the Board by cross-examining
.
98a
witnesses, supplying objections to complaint counsel,
and questioning the credibility of Dr. Haygood." The
Board argues that Dr. Haygood's allegations of bias
are unsubstantiated and do not warrant reversal of
the revocation of his license under the Allen case. The
Board contends that Mr. Begue's actions were to
"expedite the process." We have comprehensively
reviewed the transcripts of the four-day hearing, and
we agree with Dr. Haygood's representation of Mr.
Begue's actions.
Mr. Begue's Appointment as Independent
Counsel
As the Board's general counsel, Mr. Begue is
expected to serve in an advocacy role on behalf of the
Board. The Board's selection of its general counsel
taints the role of independent counsel, which is a role
that requires neutrality and independence and the
appearance of neutrality and independence. "In light
of the substantial powers given to administrative
bodies, the courts must be vigilent [sic] in assuring
that parties in administrative adjudications receive
the procedural protections our law affords." Allen v.
Louisiana State Bd. of Dentistry, 543 So. 2d 908, 915
(La. 1989). Mr. Begue's twofold role as prosecutor and
adjudicator violated Dr. Haygood's right to a hearing
that is fair and impartial and has the appearance of
being fair and impartial.
There is a risk of commingling the
prosecutorial and adjudicative functions of the Board
when an independent counsel acts as prosecutor.
.
99a
Title 46, Part XXXIII, § 923(D) of the
Louisiana Administrative Code limits Mr. Begue's
role to ruling on evidentiary matters. Section 923(D)
provides:
During and before an adjudication
hearing, the chairman shall rule upon all
evidentiary
objections
and
other
procedural questions, but in his discretion
may consult with the entire hearing panel
in executive session. At any such time, the
hearing panel may be assisted by legal
counsel, retained by the board for such
purpose, who is independent of complaint
counsel and who has not participated in
the investigation or prosecution of the
case. If the board or hearing panel is
attended by such counsel, the chairman
may delegate to such counsel ruling on
evidentiary
objections
and
other
procedural issues raised during the
hearing.
The type of commingling found in this case is
strictly prohibited by the Louisiana Administrative
Procedure Act. See La. R.S. 49:960. 1
1
La. R.S. 49:960 provides:
A. Unless required for the disposition of ex parte matters
authorized by law, members or employees of agency assigned to
render a decision or to make findings of fact and conclusions of
law in a case of adjudication noticed and docketed for hearing
.
100a
Procedural Management by the Board
The chairman of the disciplinary committee,
Dr. Trinca, delegated to the Board's general counsel
and appointed independent counsel for the hearing
panel "the obligation of ruling on all procedural and
evidentiary issues raised during the hearing of this
shall not communicate, directly or indirectly, in connection with
any issue of fact or law, with any party or his representative, or
with any officer, employee, or agent engaged in the performance
of investigative, prosecuting, or advocating functions, except
upon notice and opportunity for all parties to participate.
B. A subordinate deciding officer or agency member shall
withdraw from any adjudicative proceeding in which he cannot
accord a fair and impartial hearing or consideration. Any party
may request the disqualification of a subordinate deciding officer
or agency member, on the ground of his inability to give a fair
and impartial hearing, by filing an affidavit, promptly upon
discovery of the alleged disqualification, stating with
particularity the grounds upon which it is claimed that a fair and
impartial hearing cannot be accorded. The issue shall be
determined promptly by the agency, or, if it affects a member or
members of the agency, by the remaining members thereof, if a
quorum. Upon the entry of an order of disqualification affecting
a subordinate deciding officer, the agency shall assign another in
his stead or shall conduct the hearing itself. Upon the
disqualification of a member of an agency, the governor
immediately shall appoint a member pro tern to sit in place of
the disqualified member in that proceeding. In further action,
after the disqualification of a member of an agency, the
provisions of A.S. 49:957 shall apply.
.
101a
matter reserving the panel's right to overrule any
decision made by the counsel." Mr. Begue's sole role
during Dr. Haygood's hearing was to serve as
independent counsel — as an unbiased hearing
officer whose purpose was limited to ruling on
evidentiary matters. However, he participated in the
hearing before the Board's panel both as prosecutor
and adjudicator. The Board condoned Mr. Begue's
behavior and failed to acknowledge Dr. Haygood's
objection that Mr. Begue was overstepping his role in
the proceedings.
The record is replete with instances in which
Mr. Begue acted as prosecutor throughout the
proceedings, and at times, simultaneously acted as
prosecutor, panel member and independent counsel
— even ruling on his own objection. The Louisiana
Supreme Court held,
[w]e find the commingling of
prosecutorial and adjudicative functions
violates both the letter of the Louisiana
Administrative Procedure Act and the due
process goals it is designed to further ...
The idea of the same person serving as
judge and prosecutor is anathema under
our notions of due process. Such a scenario
is devoid of the appearance of fairness.
In Re Georgia Gulf Corp. v. Bd. of Ethics, 961907, p.7 (La. 1997), 694 So. 2d 173, 177. Without
objection from the Board, Mr. Begue expanded his
limited statutory duty. By allowing Mr. Begue to act
.
102a
as adjudicator and prosecutor, the Board violated Dr.
Haygood's due process rights.
Denial of Dr. Haygood's Due Process
Rights
It is unquestionable that Dr. Haygood has a
protected property right in his license to practice
dentistry and that he is entitled to due process of law
under both the federal and state constitutions. See
Banjavich v. Louisiana Licensing Bd. For Marine
Divers, 237 La. 467, 111 So. 2d 505, 511 (La. 1959). A
person cannot be deprived of life, liberty, or property
without due process of law. U.S. Const. Amend. XIV,
§ 1; LA. CONST. Art. 1, § 2. Due process requires a
fair trial before a fair tribunal. A due process violation
may exist even if an adjudicatory body's actual
impartiality is not proven. The appearance of fairness
and the absence of a probability of outside influence
on the adjudication are required by due process. Utica
Packing Co. v. Block, 781 F.2d 71, 77-78 (6th Cir.
1986); Allen, 543 So. 2d at 915.
Moreover, due process requires that the
accused be provided with a neutral and impartial
referee to impart fairness. The essential guarantee of
the Due Process Clause is fundamentally fair
procedure for the individual in the resolution of the
factual and legal basis for government actions which
deprive him of life, liberty or property. Therefore,
there must be some type of neutral and detached
decision maker, be it judge, hearing officer or agency.
This requirement applies to agencies and government
.
103a
hearing officers as well as judges. An impartial
decision maker is essential to due process. Even if an
individual cannot show special prejudice in his
particular case, the situation in which an official
occupies two inconsistent positions, one partisan and
the other judicial, necessarily involves a lack of due
process.
City of Alexandria v, Alexandria Civil Service
Comm 'n, 09-484, p. 7 (La. App. 3 Cir. 11/4/09), 23 So.
3d 407, 413 (citations omitted).
The Louisiana State Board of Dentistry is a
statutory agency created and governed by La. R.S.
37:753, et seq. La. R.S. 37:760A(4)(a) empowers the
Board with the sole authority to revoke, limit or
suspend licenses of dentists practicing in this state.
The relevant provisions provide as follows:
The board shall exercise, subject to
the provisions of this Chapter, the
following powers and duties:
Conduct hearings on proceedings to
revoke, limit, or suspend, and to revoke,
limit, or suspend a license granted under
this Chapter, as well as conduct hearings
to sanction unlicensed persons illegally
practicing dentistry or dental hygiene,
when evidence has been presented
showing violation of any of the provisions
of this Chapter.
.
104a
According to Title 46, Part XXXIII, § 923(B) of
the Louisiana Administrative Code, the conduct of an
adjudication hearing is explained as follows:
At
an
adjudication
hearing,
opportunity shall be afforded to complaint
counsel and respondent to present
evidence on all issues of fact and argument
on all issues of law and policy involved, to
call,
examine
and
cross-examine
witnesses, and to offer and introduce
documentary evidence and exhibits as
may be required for a full and true
disclosure of the facts and disposition of
the complaint.
"An impartial decision maker is essential to an
administrative adjudication that comports with due
process, even if de novo review is available." Butler v.
Dep't of Public Safety and Corr., 609 So. 2d 790, 793
(La. 1992). In this case, the Board's failure to comply
with Section 923(D) of the Louisiana Administrative
Code and the expressed due process requirements of
the Fourteenth Amendment of the United States
Constitution and Article 1, Section 2 of the Louisiana
Constitution, renders the decision to revoke Dr.
Haygood's license unenforceable.
Based upon our review of the record, we find
that Mr. Begue's functions of general counsel,
independent counsel, prosecutor and fact-finder were
so interwoven that they became indistinguishable,
which created the appearance of impropriety and
.
105a
deprived the proceedings of the imperative and
fundamental appearance of fairness. Therefore, the
Board's decision to revoke Dr. Haygood's license must
be reversed.
Dr. Haygood's Remaining Issues
Because we find that Dr. Haygood was denied
due process and that this matter is to be remanded to
the Board for a new hearing, we pretermit addressing
the remaining issues raised by Dr. Haygood alleging
other erroneous findings.
DECREE
We conclude that the combination of Mr.
Begue's roles of general counsel, prosecutor, and
adjudicator violated Dr. Haygood's due process
rights. We find the Board improperly combined the
prosecutorial and judicial functions by allowing its
general counsel, Mr. Begue, to serve as the
prosecutor, general counsel, panel member and
adjudicator for the proceedings against Dr. Haygood.
We hold this conduct is violative of the Louisiana
Administrative Procedure Act and Dr. Haygood's due
process right to a neutral adjudicator and a fair
hearing.
We find the Louisiana State Board of
Dentistry's decision to revoke Dr. Haygood's dental
license is arbitrary and capricious; therefore, we
reverse the trial court's judgment, which affirmed
the revocation of Dr. Haygood's license, and remand
this matter to the Board for a new hearing.
.
106a
VACATED AND REMANDED
BELSOME, J., CONCURS WITH REASONS
I respectfully concur with the majority's opinion
but write separately to further discuss the comingling of duties by the Board's independent
counsel. Although the independent counsel's role was
designed to be one that assisted the Board in
conducting the hearing in a fair and expeditious
manner, the record indicates his duties far exceeded
that role. Throughout the hearing the independent
counsel regularly took over the questioning of
witnesses eliciting testimony adverse to Dr. Haygood;
and while questioning Dr. Haygood he became
antagonistic and argumentative. A reading of the
hearing transcripts leaves one to believe that he was
working as co-counsel with the Board's attorney
rather than independent counsel. For these reasons I
concur with the conclusions reached by the majority
opinion.
.
107a
— APPENDIX T—
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
RYAN HAYGOOD, DDS, ET AL.
VERSUS.
BRIAN BEGUE, ET AL.
CIVIL ACTION NO. 13-0335
JUDGE S. MAURICE HICKS, JR
MAGISTRATE JUDGE HORNSBY
NOTICE OF APPEAL
PURSUANT to Federal Rules of Appellate
Procedure 3 and 4, notice is hereby given that
Plaintiffs, RYAN HAYGOOD, DDS and HAYGOOD
DENTAL CARE, LLC appeal to the United States
Court of Appeals for the Fifth Circuit from the
following:
•
Memorandum Order (R. Doc. 320) and Order
(R. Doc. 321) awarding attorneys’ fees and costs in the
amount of $64,285.52 to Defendant, H.O. Blackwood;
•
Memorandum Order (R. Doc. 322) and Order
(R. Doc. 323) awarding attorneys’ fees and costs in the
amount of $110,993.62 to Defendants, Barry Ogden,
Camp Morrison, Dana Glorioso, and Karen Moorhead;
and,
108a
•
Memorandum Order (R. Doc. 324) and Order
(R. Doc. 325) awarding attorneys’ fees and costs in the
amount of $95,382.66 to Defendants, Robert K. Hill,
D.D.S. and Hill D.D.S., Inc.
•
Memorandum Order (R. Doc. 342) and denying
in part and granting in part Plaintiff-Movant’s
Motions to Reconsider and/or to Alter or Amend the
Memorandum Rulings and Orders Awarding
Attorneys’ Fees to Defendants (R. Doc. 326, R. Doc.
327, and R. Doc. 328), and noting that it “agrees to
stay the enforcement of the orders awarding attorney
fees in this case until such time as the Fifth Circuit
rules in Haygood II [Haygood, et al. v. Dies, et al., No.
18-30866 (5th Cir. Mar. 2, 2023)].” (R. Doc. 342, at p.
3).
•
Memorandum Order ([R. Doc. 344]) vacating
the staying of the orders awarding attorney fees (R.
Docs. 320-325).
As noted above, the District Court, on March
29, 2023, issued a Memorandum Order stating, “this
Court’s previous order (Record Document 342) staying
the orders awarding attorney fees (Record Documents
320-325) and otherwise holding such orders in
abeyance is now VACATED. Such orders (Record
Documents 320-325) are no longer stayed or held in
abeyance.” (R. Doc. 344, at pp. 1-2) (emphasis in
original). Accordingly, this matter is now ripe for
appellate review. See Club Retro, L.L.C. v. Hilton, 568
F.3d 181, 214 (5th Cir. 2009) (quoting, Coopers &
Lybrand v. Livesay, 437 U.S. 463, 467 (1978)) (“[A]n
109a
order is final only when it ‘ends the litigation on the
merits and leaves nothing for the court to do but
execute the judgment.’”).
Respectfully submitted,
HARPER LAW FIRM
BY: /s/ Anne E. Wilkes
Jerald R. Harper, La. Bar No. 06585
Anne E. Wilkes, La. Bar No. 36729
110a
— APPENDIX U—
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
RYAN HAYGOOD, DDS, ET AL.
VERSUS.
BRIAN BEGUE, ET AL.
CIVIL ACTION NO. 13-0335
JUDGE S. MAURICE HICKS, JR
MAGISTRATE JUDGE HORNSBY
NOTICE OF APPEAL
PURSUANT to Federal Rules of Appellate
Procedure 3 and 4, notice is hereby given that
Plaintiffs, RYAN HAYGOOD, DDS and HAYGOOD
DENTAL CARE, LLC appeal to the United States
Court of Appeals for the Fifth Circuit from the
Memorandum Order (R. Doc. 316) entered in this
matter on February 7, 2020, denying Plaintiffs’
Motion for Reconsideration of and/or to Alter or
Amend the Memorandum Ruling and Order Granting
Attorney’s Fees to Defendants Barry Ogden, Camp
Morrison, Dana Glorioso, and Karen Moorhead (R.
Doc. 302).
Respectfully submitted,
BY:__s/Jerald R. Harper
JERALD R. HARPER
Louisiana State Bar No. 6585
111a
HARPER LAW FIRM
213 Texas Street
Shreveport, Louisiana 71101
(318) 213-8800 (telephone)
112a
— APPENDIX V—
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
RYAN HAYGOOD, DDS, AND HAYGOOD DENTAL CARE,
LLC
V.
BRIAN BEGUE, ROSS H. DIES, DDS, ROSS H. DIES,
DDS, J. CODY COWEN, DDS AND BENJAMIN A.
BEACH, DDS, A PROFESSIONAL DENTAL LIMITED
LIABILITY COMPANY, ROBERT K. HILL, DDS, HILL
DDS, INC., CAMP MORRISON, CAMP MORRISON
INVESTIGATIONS, LLC, C. BARRY OGDEN, KAREN
MOORHEAD AND DANA GLORIOSO
CIVIL ACTION NO.: 13-335
Filed: February 13, 2013
COMPLAINT FOR DAMAGES
ARISING OUT OF VIOLATIONS OF
42 U.S.C. 1983, AND 15 U.S.C. §1 AND §2.
NOW INTO COURT, through undersigned
counsel, come RYAN HAYGOOD, DDS and
HAYGOOD DENTAL CARE, LLC which hereby show
as follows:
113a
INTRODUCTION
This is an action for damages under
Amendment XIV of the United States Constitution, 42
U.S.C. 1983, and 15 U.S.C. §1 and §2.
JURISDICTION AND VENUE
This Court has original jurisdiction pursuant to
28 U.S.C. §1331 over Plaintiffs’ causes of action
arising under the Constitution of the United States,
42 U.S.C. §1983, and 15 U.S.C. §1 and §2. This Court
has supplemental jurisdiction over plaintiff’s causes of
action arising under Louisiana state law pursuant to
28 U.S.C. §1367.
This Court has original jurisdiction pursuant
to 28 U.S.C. §1332 over all of Plaintiffs’ causes of
action.
Venue lies in the United States District Court
for the Western District of Louisiana because a
substantial part of the events or omissions giving rise
to Plaintiffs’ claims occurred in Bossier and Caddo
Parishes, Louisiana, and a number of the named
defendants reside in Bossier and Caddo Parishes,
Louisiana. 28 U.S.C. § 1391(b)(1) and (2).
PLAINTIFFS
1.
Plaintiff Ryan Haygood is a resident of the
State of North Carolina.
114a
2.
Plaintiff Haygood Dental Care, LLC, is a
Louisiana Limited Liability Company and a citizen of
North Carolina.
DEFENDANTS
Made Defendants herein are:
3.
Defendant Brian Begue is an individual of the
full age of majority and a resident of Orleans Parish,
Louisiana. Mr. Begue acted as general counsel to the
Louisiana State Board of Dentistry (“the Board”) at all
times pertinent herein.
4.
Defendant Dr. Ross H. Dies is an individual of
the full age of majority and a domiciliary of Caddo
Parish, Louisiana. Dr. Dies is a competitor of
Plaintiffs who served as an expert for the Board at all
times pertinent herein.
5.
Defendant Ross H. Dies, DDS, J Cody Cowen,
DDS and Benjamin A. Beach, DDS, A Professional
Dental Limited Liability Company is a Louisiana
Limited Liability Company with its principal place of
business in Caddo Parish, Louisiana. Ross H. Dies,
DDS, J Cody Cowen, DDS and Benjamin A. Beach,
DDS, A Professional Dental Limited Liability
Company is a competitor of Plaintiffs. All acts alleged
115a
herein of Dr. Dies were committed on behalf of Ross
H. Dies, DDS, J Cody Cowen, DDS and Benjamin A.
Beach, DDS, A Professional Dental Limited Liability
Company.
6.
Defendant Dr. Robert K. Hill is an individual of
the full age of majority and a domiciliary of Bossier
Parish, Louisiana. Dr. Hill is a competitor of Plaintiffs
who assisted and encouraged the initiation of
complaints against Plaintiffs.
7.
Defendant Hill D.D.S., Inc. is a Louisiana
Corporation with its principal place of business in
Caddo Parish, Louisiana. Hill D.D.S. is a competitor
of Plaintiffs who assisted and encouraged the
initiation of complaints against Plaintiffs and the
prosecution of Dr. Haygood. All acts alleged herein of
Dr. Hill were committed on behalf of Hill D.D.S., Inc.
8.
Defendant Camp Morrison is an individual of
the full age of majority and a domiciliary of Orleans
Parish, Louisiana. Mr. Morrison is a private
investigator employed by the Board.
9.
Defendant Camp Morrison Investigations, LLC
is a Louisiana Limited Liability Company with its
principal place of business in Orleans Parish,
116a
Louisiana. Camp Morrison Investigations, LLC is
employed by the Board. All acts alleged herein of
Camp Morrison were committed on behalf of Camp
Morrison Investigations, LLC.
10.
Defendant C. Barry Ogden is an individual of
the full age of majority and a domiciliary of Orleans
Parish, Louisiana. He served as executive director of
the Board at all times pertinent herein. He is named
in his individual and official capacities.
11.
Defendant Karen Moorhead is an individual of
the full age of majority and a domiciliary of Union
Parish, Louisiana.
12.
Defendant Dana Glorioso, an individual of the
full age of majority and a domiciliary of Rapides
Parish, Louisiana.
13.
Plaintiffs are informed and believe and
therefore allege that Defendants were aided and
abetted in their activities by Dr. Conrad P. McVea, III,
Dr. H.O. Blackwood, Dr. Johnny Black, Dr. Tom
Colquitt, Jon Stewart, and perhaps others. Plaintiffs
reserve the right to supplement and amend these
pleadings as discovery dictates.
117a
BACKGROUND
14.
Dr. Haygood graduated from Louisiana Tech
University in 1997, Magna Cum Laude, with a degree
in molecular biology, and from Louisiana State
University of Dentistry with a Doctors of Dental
Surgery degree in 2000. After graduation from dental
school, Dr. Haygood moved to North Carolina, worked
at Baptist Hospital in Winston-Salem for a year, and
then was in private practice in Wake Forest from
August 2001 - October 2005. Dr. Haygood also taught
at UNC School of Dentistry in Chapel Hill.
15.
Shortly after graduation from dental school, Dr.
Haygood was also licensed to practice of dentistry in
the State of Louisiana. In 2005 he opened offices in
Shreveport and Bossier City, Louisiana, commencing
his practice through a limited liability company
named "Haygood Dental Care, LLC.” He actively
advertised his professional services in the
Shreveport/Bossier City community.
16.
In order to establish his new dental practice,
Dr. Haygood did not buy an existing dental practice
but, rather built a new practice "from the ground up."
All of his patients were "new patients".
118a
17.
In 2006, in an effort to obtain new patients, Dr.
Haygood began an active publicity campaign for his
new dental practices in Shreveport-Bossier, which
resulted in a significant increase in patients seeking
Dr. Haygood's professional services in those
communities. Although such advertising among
dentists is perfectly lawful, many dentists,
particularly older dentists in Louisiana, frown on such
publicity.
18.
Dr. Haygood's efforts to obtain new patients
were enormously successful, to the apparent
consternation of some other area dentists. Because
the population of the Shreveport-Bossier market did
not grow during the time period that Haygood
established his practice, the "new patients" obtained
by Dr. Haygood were necessarily patients who were
lost by other, competing dentists in the ShreveportBossier area.
19.
Shortly after Dr. Haygood's advertising
campaign began in earnest, and his practice began to
experience rapid growth, the Board apparently began
to receive complaints about alleged improper
professional practices of various sorts attributable to
Dr. Haygood. Dr. Haygood is informed and believes,
and therefore alleges, that these complaints were
119a
encouraged,
competitors.
if
not
directly
solicited,
by
his
20.
Beginning in late 2006 and the early months of
2007, the Board zealously embarked upon an
investigation, prosecution, and adjudication of a wide
variety of claims against Dr. Haygood, during the
course of which the Board and its agents and
contractors, (i) exceeded their lawful authority; (ii)
violated Dr. Haygood's rights to due process; (iii) acted
without neutrality; (iv) simultaneously acted in
adjudicatory and prosecutorial roles; (v) conducted
themselves in a manner which was unlawful and at
least in one case violative of the criminal laws of the
State of Louisiana; (vi) violated the Board's duty of
trust; and (vii) violated the Board's duty to maintain
such investigations in confidence.
21.
In late 2006, the Board received complaints
regarding Dr. Haygood from three patients of Dr.
Robert Hill and one patient of Dr. Kevin Martello. Dr.
Hill has admitted to assisting his patients in drafting
their complaints, to the extent of reviewing letters and
even taking a complaint letter from one patient’s chart
and showing it to at least one other patient for use as
an example.
120a
22.
Beginning no later than March 22, 2007, Dr.
H.O. Blackwood, a director of the Board and
competitor of Dr. Haygood from northwest Louisiana,
communicated directly and indirectly with C. Barry
Ogden and Camp Morrison, and developed a scheme
to contact "very motivated” dentists in the ShreveportBossier area seeking additional complaints against
Dr. Haygood. Discussions with these dentists led to
Morrison’s “concerns” and “questions” regarding a
number of other people who had not filed any
complaints with the Board.
23.
One such person, Jacqueline Foster, was
contacted by Dr. Tom Colquitt and encouraged to file
a complaint against Dr. Haygood. After speaking with
her via telephone, he thanked her “for her help,”
encouraged her to write a letter to the Board, and
enclosed an envelope in which she could forward him
a copy of her complaint, a copy of which he stated he
“would love to have.”
24.
Without any investigation, both Ogden and
Morrison developed a theory or opinion that Haygood
had a "predilection for diagnosing unnecessary
periodontal work.” The Defendants actively sought
evidence in support of that theory. In late March 2007,
Ogden authorized the issuance of subpoenas for
patients of various dentists in northwest Louisiana for
121a
the purpose of gathering additional complaints
against Dr. Haygood. Later, in June 2007, the Board
had the complainants examined by Dr. Dies, a direct
competitor of Dr. Haygood.
25.
An informal hearing of these complaints was
held in August 2007, during which Dr. Haygood
denied all allegations. Afterward, the Board,
apparently unable to formally charge Dr. Haygood on
the basis of the complaints in their possession and the
biased findings of Dr. Dies, decided to gather
additional damning evidence by directing Morrison to
retain unlicensed investigators to pose as patients
seeking treatment from Dr. Haygood.
26.
Though the investigation and proceedings of
the Board are to be conducted in strict secrecy, in
accordance with Louisiana law, in 2009 anonymous
internet posting containing false and derogatory
information that could have only been obtained during
the course of the Board’s investigation and
proceedings began to appear. Haygood’s investigation
and prosecution was also discussed among dentists in
Shreveport and Bossier City, Louisiana during the
2007-2010 time frame.
27.
The Board conducted informal hearings
involving Dr. Haygood on March 13, 2009, and
122a
November 13, 2009. A final complaint was issued
against Dr. Haygood on March 10, 2010.
28.
In an effort to bring additional pressure to bear
on Dr. Haygood, the Board determined to bring
charges against his two hygienists, Wendy Green and
Julie Snyder, who were accused of aiding and abetting
alleged fraudulent conduct by Haygood.
29.
The Board set a formal hearing before the
Disciplinary Committee ("Committee") consisting of
Dr. Samuel Trinca, Dr. Dean Manning, and Dr. James
Moreau on September 24-25, 2010 and October 22-23,
2010 relative to the formal administrative complaint
lodged against Dr. Haygood.
30.
During the hearing, Brian Begue, appointed to
act as “independent counsel” for the Board, repeatedly
disregarded this role and interjected himself into the
hearing as an additional "prosecutor" by cross
examining
witnesses,
providing
supportive
information to complaint counsel, providing and
suggesting objections to complaint counsel and openly
questioning the testimony of Dr. Haygood.
31.
Dr. Haygood introduced as a witness world
renowned periodontist, lecturer and author Dr.
123a
Raymond Yukna, who agreed with Dr. Haygood’s
professional opinions with respect to the professional
treatment at issue in the case.
32.
The Committee also heard the tainted expert
testimony of Dr. Dies and the two unlicensed private
investigators, whose testimony should never have
been permitted.
33.
After hearing the testimony of Dr. Yukna, M.
Thomas Arcenaux, prosecutor for the Board
approached the Board Director, Barry Ogden,
suggesting that the evidence might be insufficient for
any conviction. Ogden responded that the Board was
"in too far financially and boxed in politically" and the
case had to be pursued.
34.
On November 8, 2010, the Louisiana State
Board of Dentistry, whose members included but not
limited to a disciplinary committee consisting of Dr.
Samuel Trinca, Dr. Dean Manning and Dr. James
Moreau issued an Opinion, finding by "clear and
convincing evidence" under the Louisiana Dental
Practice Act multiple counts of engaging in conduct
intending to defraud the public, and, remarkably,
findings by Dr. Haygood guilty by "clear and
convincing evidence" of charges which had been
dismissed by the Board of Dentistry. Maximum fines
124a
were levied as to all counts. This proceeding was a
sham and the product of the actions of the defendants
and those Board members who aided and abetted
them.
35.
Dr. Haygood appealed the findings of the Board
by seeking judicial review in the Orleans Parish Civil
District Court, in accordance with the procedure set
forth in La. R.S. 37:786. The district court affirmed
some of the findings of the Board, reversed the
findings of fact as to which both parties agreed were
either withdrawn during the administrative trial, or
for which no evidence was adduced, and remanded the
case for reconsideration of the Board’s imposition of
sanctions. The Board issued a new judgment
eliminating the dismissed findings but retaining the
sanctions. After the Board’s complaint counsel filed a
motion to amend, the Board issued an Amended
Decision After Remand, deleted the $5,000 fine,
imposed for the Specification that had been removed
by the trial court, but maintained the permanent
license revocation, the $35,000 fine, and costs. Dr.
Haygood filed a Petition for Review with the trial
court, contesting the Board’s Amended Decision after
Remand. The trial court issued a Judgment affirming
the Amended Decision after Remand.
36.
Dr. Haygood timely appealed both Judgments
issued by the trial court to the Fourth Circuit Court of
125a
Appeals. The Fourth Circuit held that the manner in
which the Board conducted its proceedings against Dr.
Haygood (specifically, by permitting Brian Begue to
commingle his roles of general counsel, prosecutor,
and adjudicator) was arbitrary and capricious,
violated the Louisiana Administrative Procedure Act,
and denied Dr. Haygood his constitutional due process
rights to a neutral adjudicator and a fair hearing. A
copy of this opinion, and the denial of writs by the
Louisiana Supreme Court is attached hereto as
Exhibit “A.”
THE LOUISIANA STATE BOARD OF
DENTISTRY
37.
The Louisiana State Board of Dentistry (the
“Board”) is a state board of the State of Louisiana. The
Board was created under the provisions of La. R.S.
37:751, et seq. The Board, as provided by La. R.S.
36:259(E), is under the supervision and control of the
Louisiana Department of Health and Hospitals. The
Board is composed of 14 members, including 13
licensed and practicing dentists and one dental
hygienist. The Board also has 5 employees. All
members are appointed by the Governor and serve 5year terms. The Board is charged with the
responsibility of screening applicants, preparing and
administering examinations, issuing licenses for
dentists and dental hygienists, and investigating bona
fide complaints in the field of dentistry. Operations of
126a
the Board are funded by examination fees, license fees
and fines imposed on miscreant professionals.
38.
The Board and its Disciplinary Committee
stand in a relation of trust to the public, the profession
and those who appear before that body. Its
deliberations are to be conducted in utmost
confidence.
39.
By statute, the Board’s power to investigate is
limited as follows:
"The Board shall investigate complaints of
illegal evidence or a violation of this chapter,
when evidence is presented to the Board..."
(emphasis added)
Moreover, the Board has authority to investigate
"charges brought, which must be made under oath,
noticed and docketed." (emphasis added)
40.
When the Board performs an investigation in
good faith and determines to adjudicate a formal
administrative complaint against a dentist or other
dental professional, the Board is obligated to conduct
such hearing in a manner which, although not
necessarily perfect, must meet minimum levels of
fairness, independence and neutrality, free from
127a
malicious or
influences.
competitive
biases
or
financial
41.
In addition to the foregoing, Louisiana law
requires that such hearing be conducted in a manner
which maintains the appearance of fairness,
neutrality, and freedom from the taint of improper
influences, such as competitive considerations,
financial strains on the Board, and maliciousness on
the part of its participants.
42.
The financial statements for the Board for the
year end June 30, 2009 as set forth in the independent
auditor's report on financial statements submitted by
Leroy Chustz and Beverly A. Ryall, CPAs, stated as
follows under "Financial Highlights":
"The Louisiana State Board of
Dentistry's liabilities exceeded its assets
at the close of fiscal year 2009 by
$62,962.00, which represents a 267.4 per
cent increase from last fiscal year. The
net assets decreased by $100,569.00 (or
267.4 per cent). The Louisiana State
Board of Dentistry's revenue decreased
$61,740.00) or 6.4 per cent) and the net
results from activities decreased by
$49,702.00 (or 88.7 per cent)."
128a
43.
The same financial statements for year end
June 30, 2009 stated as follows under "Variations
Between Original and Final Budgets":
"Revenues were $210,000.00 under
budget, due mainly to lower than
expected revenue from license renewals
and enforcement actions. Expenditures
were approximately $148,000.00 under
budget due mainly to lower than
expected salaries and benefit expenses,
operating expenses and fixed asset
acquisitions."
44.
The Board's basic financial statements and
independent auditor's report for the year ending June
30, 2010 stated as follows:
"Net assets of the Louisiana State Board
of Dentistry decreased by $41,276.00 (or
65.6 per cent) from June 30, 2009 to June
30, 2010. Causes of this decrease include
an increase in legal and investigation
cost due to an increase in disciplinary
actions and an increase in computer
support
services
due
to
the
implementation of a new data base and
the computer hardware that supports it."
129a
45.
On Friday, May 7, 2010, the Board conducted a
special meeting in New Orleans, Louisiana. According
to the Minutes of that meeting, Mr. Barry Ogden,
Executive Director of the Board "brought the Board's
attention to the financial statements for the nine
month period ending March 31, 2010. He explained
that the Board currently had an unprecedented eight
formal proceedings against licensees and that those
proceedings had driven up the Board's legal and
investigative fees."
BRIAN BEGUE
46.
Defendant Ogden appointed Brian Begue, an
attorney who serves on the staff of the Board to act as
"independent counsel" for the Committee during the
hearings for Dr. Haygood.
47.
The duties of independent counsel are carefully
defined by statute so as to allow the Board the benefit
of legal counsel on evidentiary and procedural issues
but to remain entirely neutral so as to avoid conflict of
interest in acting as counsel both in an adjudicatory
role and a prosecutorial role. Specifically, La. C. 46923(D) states as follows:
"During and before adjudication hearing,
the chairman shall rule upon evidentiary
objections
and
other
procedural
130a
questions, but in his discretion may
consult with the entire hearing panel in
executive session. At any time, the
hearing panel may be assisted by legal
counsel retained by the Board for such
purpose, who is independent of
complaint counsel and who has not
participated in the investigation or
prosecution of the case. If the Board or
hearing panel is attended by such
counsel, the chairman may delegate to
such counsel ruling on evidentiary
objections and other procedural issues
raised during the hearing."
48.
As defendant Ogden was well aware at the time
he appointed Mr. Begue as "independent counsel", Mr.
Begue had already "participated in the investigation
or prosecution of the case" against Haygood.
49.
Moreover, despite the limitation placed on Mr.
Begue by statute, during the hearings pertaining to
Dr. Haygood, Begue repeatedly disregarded this role
and interjected himself into the hearing as an
additional “prosecutor” by cross examining witnesses,
providing supportive information to complaint
counsel, providing and suggesting objections to
complaint counsel and openly questioning the
testimony of Dr. Haygood.
131a
50.
Neither the Board members present at the
hearing nor the prosecuting attorney acting on behalf
of the Board did anything to discourage Begue’s
conduct.
51.
This impermissible confusion of the roles of the
Committee as both adjudicators and prosecutor
undermined whatever remaining integrity there were
to these proceedings and led to the Fourth Circuit’s
ruling holding that “...the Board improperly combined
the prosecutorial and judicial functions by allowing its
general counsel, Mr. Brian Begue, to serve as the
prosecutor, general counsel, panel member, and
adjudicator for the proceedings against Dr. Haygood.
We hold this conduct is violative of the Louisiana
Administrative Procedure Act and Dr. Haygood’s due
process right to a neutral adjudicator and a fair
hearing. We find the Louisiana State Board of
Dentistry’s decision to revoke Dr. C. Ryan Haygood’s
dental license is arbitrary and capricious..”
DR. ROBERT HILL
52.
Robert Hill has been a Louisiana dentist for the
past 19 years, and is a principal in Hill D.D.S., Inc.
The activities of Dr. Hill complained of were
performed on behalf of Hill D.D.S., Inc.
132a
53.
Beginning with the opening of Dr. Haygood’s
dental practices in Shreveport and Bossier in
December, 2005, Dr. Haygood and Dr. Hill became
direct, primary competitors in the professional
practice of dentistry in the greater Shreveport/Bossier
community. Their professional limited liability
companies are also direct, primary competitors.
54.
Three of the four initial complaints filed with
the Board against Dr. Haygood all stem from patients
of Dr. Hill, and Plaintiffs believe that Dr. Hill
encouraged the filing of these complaints. Dr. Hill
knew at least one of these patients personally.
Additionally, he has admitted to assisting these
patients in drafting their complaints, to the extent of
reviewing letters and violating HIPAA by taking a
complaint letter from one patient’s chart and showing
it to at least one other patient for use as an example.
55.
When deposed during the Board proceedings,
he could provide no explanation for his actions.
56.
When asked to provide patient records to the
Board, Dr. Hill voluntarily forwarded correspondence
to Camp Morrison listing his own opinions regarding
the treatment these patients received from Dr.
Haygood.
133a
DR. ROSS H. DIES
57.
Ross Dies has been a Louisiana dentist for the
past 25 years, and is a principal in Shreveport-Bossier
Family Dental Care, LLC. The activities Dr. Dies
complained of were performed on behalf of
Shreveport-Bossier Family Dental Care, LLC.
58.
Beginning with the opening of Dr. Haygood’s
dental practices in Shreveport and Bossier in
December, 2005, Dr. Haygood and Dr. Dies became
direct, primary competitors in the professional
practice of dentistry in the greater Shreveport/Bossier
community. Their professional limited liability
companies are also direct, primary competitors.
59.
At all times pertinent hereto, Dr. Dies had
developed a strong personal dislike and profound
animosity toward Dr. Haygood, expressing that
opinion to others both in and out of the dental
profession.
60.
Plaintiffs allege that C. Barry Ogden and H.O
Blackwood communicated with Camp Morrison and
Dr. Ross Dies throughout the investigation and
adjudication proceeding in an effort to assist in
134a
removing Dr. Haygood as a competitor in the practice
of dentistry in the State of Louisiana.
61.
No later than June 7, 2007, Ogden and
Morrison designated defendant Dr. Ross Dies as their
"expert", and forwarded medical records to him,
ostensibly for a neutral and independent evaluation of
"complaints", the vast majority of which were
apparently unsupported by written, sworn complaint
from patients.
62.
The Board was well aware that Dr. Dies was a
direct competitor with Dr. Haygood and in fact, Camp
Morrison later described Dies' relationship with Dr.
Haygood as that of an "antagonistic" competitor.
However, Morrison has characterized Dies as the
“obvious choice” for use as the Board’s expert.
63.
When Barry Ogden and Camp Morrison
communicated with Dr. Dies and sought his
assistance as an "expert" they admonished him that
"all this must be held in strictest confidence". Further,
Morrison assured him that there was no risk to his
participation in the scheme, guaranteeing that he
would "receive the benefit of immunity as you will be
acting on behalf of the LSBD and hence be an agent of
the State."
135a
64.
Though Dr. Dies understood that his
evaluations would be used as evidence against Dr.
Haygood, his evaluations are studded with
inaccuracies, falsehoods, exaggerations and improper
assumptions. These evaluations were introduced as
evidence in the proceedings by the conspirators
against Dr. Haygood conducted on September 24-25,
2010 and October 22-23, 2010, and Dr. Haygood
knowingly provided those evaluations for that very
purpose.
65.
In July 2007, Dr. Dies, purporting to act as an
“independent expert,” submitted written evaluations
of the records of patients which were the subject of the
investigation all of which found the treatment and
professional actions of Dr. Haygood to be improper.
Dr. Dies was neither an expert in periodontal
dentistry nor was he independent, as both the Board
and his co-conspirators were well aware.
66.
In March, 2010, Dr. Dies hired one of these two
hygienists, Wendy Green, despite the pending charges
against her and his role as Board "expert" in the
charges against Dr. Haygood.
67.
Dr. Dies was fully aware of the pending charges
against Ms. Green and began talking to her about the
136a
pending investigations prior to her interview with his
dental office. Green was ultimately hired, but before
she worked her first day at the office, Dr. Dies
approached Green and offered her immunity on behalf
of the Board for changing her testimony and testifying
against Dr. Haygood. During the same conversation,
Dr. Dies freely spoke of his "hate" for Haygood.
68.
Despite their impropriety, Dies' actions on
behalf of the Board were apparently authorized or at
least were subsequently ratified by a phone call made
within 24 hours by a Board representative to Green's
attorney relating that a "deal" could be arranged with
Green for immunity in exchange for "cooperation", in
the form of testimony against Dr. Haygood.
69.
While employed with Dr. Dies, Green also
interacted with Dr. Dies' partner, Dr. Cody Cowen,
who professed knowledge of the supposedly
confidential proceedings against Haygood and
Haygood's patients. Dr. Cowen and Dr. Dies made
frequent reference to "our friends at the Board" when
talking with Green.
70.
Subsequently, Green left Dies' practice for
employment with Dr. Paul Heilman, whereupon Dr.
Dies contacted Heilman and asked him to "probe
around about Haygood". Ultimately, Green was
137a
unwilling to testify to the Board's satisfaction and the
Board continued to pursue claims against her to
completion.
71.
Also in late 2008 Dr. Ross Dies, who was
simultaneously participating in the "investigation,"
began surreptitiously seeking to purchase Dr.
Haygood's dental practice. Dr. Haygood determined to
enlist the services of a business broker for a possible
sale of his dental practice, a step which was fostered
by the burden of the investigation and the cost
incurred in connection therewith. Dr. Dies
surreptitiously communicated with the business
broker hired by Dr. Haygood for this purpose and,
making representations that he was interested in
purchasing that practice, obtained highly confidential
financial information pertaining to Dr. Haygood's
medical practice.
72.
Whatever the value of Dr. Dies' opinions might
have been, the Board belatedly recognized his
antagonistic relationship with Dr. Haygood and his
obvious bias. Accordingly, the Board submitted the
patient records, many of which were still apparently
unsupported by sworn complaints, to Dr. Donald
Harris, a dentist in New Iberia.
138a
73.
Although the Board is to be credited for its
belated recognition of Dies' obvious bias, remarkably
it continued to allow the proceedings to be tainted
with that antagonism and bias as a result of: (i)
sending Dies' findings to Harris in an effort to
influence Harris' opinion; (ii) actually utilizing the
testimony of Dr. Dies at the final trial of this matter
as an "expert" (in addition to Dr. Harris); and (iii) as
set forth hereinbelow, permitting Dr. Dies to continue
to participate in the “investigation” in various roles
that far surpass any proper authority with which he
might otherwise have been vested.
74.
At some point following November 2010, Linda
Anderson, a purported former patient of Dr. Dies,
informed him that she had filed complaints against
Dr. Haygood. Th
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.