Petition for Writ of Certiorari — Andrews v. Howard
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Supreme Cotrt, US.
} FILED
(1) 10-58 JUL 8- 2010
No. OFFICE OF THE CLERK
SS —————— —— eee - —— — o>—e a
In the
Supreme Court of the United States
Mark Epw. ANDREWS,
Petitioner,
V.
D. DouGcLas Howarp, JR.,
Respondent.
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit
PETITION FOR WRIT OF CERTIORARI
MARK Epw. ANDREWS
Counsel of Record
ANDREWS Arts & Sciences Law, LLC
7104 COLISEUM STREET
New Or.LEANS, LA 70118-4818
MEA@MEALAW.COM
504-383-3632
Attorney for Petitioner
QUESTIONS PRESENTED
After being sued for malicious prosecution in state
court for prior ltigation in federal court, defendant
attorney removed to the same federal court, on both
federal-question and officer-of-the-court grounds. The
district court remanded and ordered fee shifting.
Defendant appealed the fee shifting and quantum of
award, which were affirmed by the circuit court, with
the addition of Rule-38 sanctions for frivolous appeal.
l. Is officer-of-the-court removal under 28 USC
§1442 categorically unavailable to admitted attorneys?
2. Is fee shifting on remand under 28 USC §1447(c)
properly imposed in the absence of clearly-established
law demonstrating a lack of reasonable basis for removal?
3. Is an appeal on an unresolved or novel question
frivolous and sanctionable under F.R.A.P. Rule 38?
4. May lodestar analysis of fee shifting be bypassed
if a court regards litigation to be vexatious?
ll
RULE 14.1(B) STATEMENT
A list of all parties to the proceeding in the court
whose judgment is the subject of this petition is as
follows:
Plaintiff-Appellee and Respondent:
Desmond Douglas Howard, Jr., Attorney at Law, is
a natural person of majority, admitted to practice in
Louisiana, Bar. No. 7021, maintaining a professional
office in New Orleans, Louisiana.
Defendant-Appellant and Petitioners:
Mark Edw. Andrews, Attorney at Law and
Registered U.S. Patent Attorney, is a natural person
of majority, admitted as an attorney in Louisiana (No.
26172) and Cahfornia (No. 232519), maintaining a
professional office in New Orleans, Louisiana.
Other Defendants-Appellants below:
Andrews Arts & Sciences Law, LLC, organized in
Louisiana, is the solo-practice law firm of Mark Edw.
Andrews.
Lesley Simmons St. Germain is a natural person of
majority and resident of New Orleans, Louisiana.
Hillary Rose Smith is a natural person of majority
and resident of New Orleans, Louisiana.
Melissa Branighan is a natural person of majority
and resident of Jefferson Parish, Louisiana.
David E. Simmons, DDS, is a natural person of
majority and resident of New Orleans, Louisiana, and
is the father of Lesley Simmons St. Germain.
TABLE OF CONTENTS
Questions Presented .
Rule 14.1(b) Statement
Table of Authorities
Opinions Below
Jurisdiction .....
Statutory Provisions Involved
Statement of the Case .
,ontrolling Preceder
Controlling P lent
Reasons for Granting the Petition
A. Fifth Circuit ruled broadly that attorneys
cannot remove under §1442, on a question
not properly before that court
B. Fifth Circuit seriously misapprehends
Willingham v. Morgan (U
.2., 1000)
No controlling caselaw existed at the time of
removal, as shown by Herron.. .
D. Seventh-Circuit rule is rejected by the Fifth
EK. Other reasonable grounds for removal were
asserted and supported, but overlooked.
KF. Neither the district court nor the Fifth Circuit
applied the proper Martin standard.
G. Appeal of quantum was overlooked, and no
proper lodestar analysis was done by any court
H. The Fifth Circuit’s Rule-38 sanctions conflict
with its own precedent.
Commas ee es
Appendix A, Circuit. Court Opinion
Appendix B, Circuit Court Denial of Rehearing
Appendix C, District Court Minute Order .
Appendix D, District Court Order. .....
Appendix E, Supervisory Writ (La.App.)
Appendix F, Relevant Statutes
TABLE OF AUTHORITIES
Cases
( anime TTS. 399 (1i9bf
LUCTTLE | Saks Fifth (venue a)
(CAS 12/28/2002) 8 F.3d 1171
are Re,ablo : \ — . } j
itt nbuckle { otate karm Lloyds
re High Sulfur Content Gasoline Products Liab
07-30384 (CA5 2/4/2008) 517 F.3d 22
V4 4( k li Lt ( uty of Neu Orleans
01-31039 (CAS 7/25/2002) 300 } i
Martin v. Franklin Capital Corp
546 U.S. 1382 (2005)
Miranti v. Lee, 92-3576 (CA5 10/7/1993) 3 |} 1 92
Valdes v. Wal-Mart Stores, In«
99-20519 (CA5 1/12/2000) 199 F.3d 290 .
Watson v. Phtlup Morris Cos.. 551 U.S. 142 (200
Willingham Morgan, 395 U.S. 402 (1969)
Statutes
101 (19438)
8
28 USC §1254 (1988)
S
$1367 (1990)
28 USC §1441 (2002) 2. 3,
28 USC §1442 (1996) L, 2, 4, 6,
28 USC §1447 (1996) 1 2,4,6
28 USC §2101 (1994)
PETITION FOR WRIT OF CERTIORARI
I, Mark Edw. Andrews, Defendant—Appellant in
the action below, respectfully petition for a writ of
certiorarl to review the opinion and judgment of the
U.S. Court of Appeals for the Fifth Circuit.
OPINIONS BELOW
The published opinion of the Court of Appeals for the
Fifth Circuit, Howard v. Si. Germain, et al, 09-30642
(CA5 3/5/2010), is reproduced at Appendix A, pp.la-4a.
The Fifth Circuit’s order denying rehearing was entered
13 April 2010, and is reproduced at Appendix B, p.5a.
The Minute Order of the U.S. District Court for the
Eastern District of Louisiana in case number 09-3450,
entered 24 June 2009, and Order entered 20 July 2009,
are reproduced at Appendices C, p.6a, and D, pp.7a—9a.
The Supervisory Writ granted by the Louisiana Court
of Appeal after the action was remanded to state court
is informative— although not directly at issue— and is
reproduced at Appendix E, pp.10a-38a.
JURISDICTION
The judgment of the Court of Appeals sought to be
reviewed was entered on 5 March 2010. Rehearing was
timely sought, and was denied on 13 April 2010. This
petition is timely under 28 USC §2101() and Supreme
Court Rule 13.1 because it is being filed within 90 days
of the denial of rehearing on the opinion and judgment
sought to be reviewed. This Court has jurisdiction to
review the judgment of the U.S. Court of Appeals for
the Fifth Circuit under 28 USC §1254(1).
STATUTORY PROVISIONS INVOLVED
The relevant statutes are 28 USC §1367(d) (pendant
jurisdiction), and §1441, §1442, & §1447 (removal and
remand), reproduced at Appendix F, pp.39a—40a.
2
STATEMENT OF THE CASE
This action was removed under 28 USC §1441 and
§1442, with jurisdiction continuing under 28 USC §1447.
I am an attorney. My clients and I were sued in
state court for malicious prosecution— in retaliation for
filing a civil-RICO action in federal court. I removed to
the federal court where the RICO action had been filed.
The federal district court remanded and ordered me to
pay attorney fees under 28 USC §1447(c). I appealed
the fee-shifting and the quantum of attorney fees
awarded, but did not appeal the fact of remand. The
circuit court affirmed and ordered additional Rule-38
sanctions against me for bringing a frivolous appeal.
This petition is not about the remand— it 1s about
the imposition of fee-shifting and sanctions even though
there was no controlling caselaw foreclosing removal at
the time of removal. It is also about the circuit court
making a broad decision— affecting all attorneys
admitted before the federal courts— on an issue that
was not properly before the circuit court for decision.
My notice of removal stated multiple grounds, one of
which was removal as an officer of the court under 28
USC §1442. I researched before removing, and saw that
the only statement in the Fifth Circuit about admitted
attorneys removing as officers of the court was footnote
2 of a case about a private process server, where the
Fifth Circuit stated: “We do not attempt to fashion a
definition of “officer of the court,’ nor do we opine as
to whether attorneys are ‘officers of the courts of the
United States’ within the meaning of Sec. 1442.”!. I
found no out-of-circuit caselaw that directly addressed
the question of attorneys removing under §1442.
1. Herron v. Continental Airlines, Inc., 95-10645, note 2 (CA5
1/23/1996) 73 F.3d 57, 59.
As their new attorney, I represent three former
clients of a divorce attorney named Howard. Those
former clients filed a civil-RICO action in federal court
against Howard, with pendant state-law claims of legal
malpractice and breach of contract. The RICO claims
were dismissed from federal court, and the pendant
state-law claims were dismissed without prejudice to
be re-filed in state court under 28 USC §1367(d).
The three former clients unsuccessfully appealed
the federal dismissal, and did not immediately re-file
in state court, but their time to do so had not expired.
Meanwhile, in state court, Howard filed a defamation
action against me and my clients who were formerly his
clients. I filed in state court my clients’ legal-malpractice
claims as a reconventional demand, or counterclaim, to
Howard's state-court action. These legal-malpractice
claims were the ones formerly pending in federal court
as pendant claims to the civul-RICO action. Howard
later added claims for malicious prosecution, and the
malicious prosecution was specified as being the filing
and appeal of the civil-RICO action against Howard
in federal court, and the filing of counterclaims
in state court that were said to be time-barred. By
amending his lawsuit to add claims for the filing of the
counterclaims, Howard created a circular mess where
normally-defensive issues of time-bar were made part
of the main claims.
Louisiana imposes peremption, or a statute of
repose, on claims against attorneys. Federal law at 28
USC §1367() either does or does not toll Louisiana’s
time-bar. Such a question is normally a defensive
issue, but in this circular case it was an issue in the
supplemented main claims. One of my grounds for
removal, under 28 USC §1441, was this question of
federal law 28 USC §1367(d).
4
Another of my grounds for removal— the one that
cost me $12,955 in sanctions— was officer-of-the-court
removal under 28 USC §1442. Howard explicitly sued
me for acting as the attorney in federal court in the
federal! civil-RICO action and appeal. My research
showed that removal as an officer of the court was—
theoretically— available, and that there was no caselaw
in the entire nation to inform me one way or the otaer,
although there was one footnote in one case in the Fifth
Circuit confirming that there was no settled caselaw.
After removal the case was transferred to the same
section of federal district court that heard the earlier
RICO action. The district court remanded the action
to state court and assessed costs and fee-shifting under
28 USC §1447(c) against me— attorney Mark Andrews
specifically by name— in the minute entry. J opposed
the fee-shifting and the quantum of the award, but the
other co-defendants did not oppose because they were
not subject to the fee-shifting assessment. The district
court’s written order, however, assessed the fee-shifting
against all of the co-defendants jointly and severally.
An appeal was taken on the issues of fee-shifting,
quantum of award, and due-process— not the remand
itself. Howard filed a motion for Rule-38 sanctions
against me only— specifically disclaiming any sanctions
against the other co-defendants. The Fifth Circwt
affirmed the district court’s fee-shifting, and added
Rule-38 sanctions against all of the co-defendants. The
Fifth Circuit held— very broadly— that removal under
§1442 was categorically not available to attorneys, and
that my removal was therefore improper. The opinion
was silent about §1441 federal-question removal and the
quantum of award. In deciding that admitted attorneys
cannot remove under §1442, the Fifth Circuit decided
an issue that was not before it, since the remand itself
was not appealed. As support, the Fifth Circuit cited a
misapprehended version of a 1969 Supreme Court case.
To protect my clients, I personally paid $12,955 into
the registry of the federal court, covering all fee-shifting
and sanctions. In three years of this litigation, I have
not collected any money in fees from these clients, so
the money | lost was my own.
After remand, the state district court ruled against
my clients and me, but the state appeals court reversed
on all significant issues and threw out all of Howard's
case; ordered that Howard pay me sanctions; and
reinstated the reconventional demand. The Louisiana
Fourth Circuit Court of Appeal had to analyze the
application of federal law 28 USC §1367(d) to the state-
law time-bar, as I predicted in my notice of removal,
but they analyzed it correctly.*? The Louisiana Supreme
Court refused Howard’s application for certiorari,
and the defamation and malicious-prosecution action
against my clients and me is finally dismissed.
CONTROLLING PRECEDENT
Martin v. Franklin Capital Corp. controls this case,
and Martin, in turn, endorses a rule from the Fifth
Circuit. The Fifth Circuit regarded that Cammer v.
U.S.4 and Willingham v. Morgan’ controlled the issue of
attorney removal under §1442, which is disputed here.
Appendix E, Supervisory Writ in Howard v. St. Germain, et
al., 09-1344 (La.App. 4 Cir. 1/26/2010) at pp.16a,18a—22a
Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005),
citing Hornbuckle v. State Farm Lloyds, 03-10938 (CA5
9/10/2004) 385 F.3d 538, 541, and Valdes v, Wal-Mart Stores,
Inc., 99-20519 (CA5 1/12/2000) 199 F.3d 290, 293.
Cammer v. United States, 350 U.S. 399 (1956).
Willingham v. Morgan, 395 U.S. 402 (1969)
6
REASONS FOR GRANTING THE PETITION
A. Fifth Circuit ruled broadly that attorneys
cannot remove under §1442, on a question
not properly before that court.
The Fifth Circuit made a very broad ruling that
attorneys cannot remove as officers of the court under
28 USC §1442, but that was not at issue in the appeal.
The issue was §1447(c) fee-shifting, and whether I had
a reasonable objective basis at the time of removal.
Although the Fifth Circuit’s holding is sweeping,
it does not address this actual appeal. Because the
remand itself was neither appealed nor appealable, the
propriety of the removal in absolute terms was not at
issue. Also, because I stated other §1441 grounds for
removal, which were overlooked, the §1442 question
was not essential. Had the issue been properly before
the court, several important questions would have
been briefed and considered: (1) what effect does the
extensive 1996 amendment of 28 USC §1442 have on
officer-of-the-court removal; (2) does any caselaw in
the half-century since Cammer have any effect; and (3)
does the broad “acting under” language that expands
28 USC §1442(a)(1) removal to private persons® also
apply to §1442(a)(2). The decision was rendered without
the benefit of such information or deliberation, but the
future implications of the decision are of exceptional
importance, and certiorari is warranted.
B. Fifth Circuit seriously misapprehends
Willingham v. Morgan (U.S., 1969).
The Fifth Circuit’s published opinion seriously
misapprehends and misstates Willingham v. Morgan’,
where the removing parties were a warden and a
6. Watson v. Philip Morris Cos., 551 U.S. 142 (2007)
7. Willingham v. Morgan, 395 U.S. 402, 406-08 (1969)
medical officer at a federal prison, and where the
Supreme Court's decision says nothing whatsoever
about private attorneys or officers of the court. In the
Fifth Circuit’s opinion here, the synopsis of Willingham
is “(interpreting the purpose of 28 U.S.C. § 1442 as
applying to only those cases where a federal officer
required a federal forum and not intended for a private
attorney to use to remove a state action to federal court
on the basis that he was an ‘officer of the court’)’.®
This 1s completely wrong, and was highly prejudicial
to my appeal. The Fifth Circuit based the sweeping
holding that attorneys cannot remove under §1442 on
a completely-wrong synopsis of the Willingham case,
which now sits in a published opinion that needs the
corrective attention of this Supreme Court.
C. No controlling caselaw existed at the time of
removal, as shown by Herron.
In Herron v. Continental Atrlines the Fifth Circuit
held a private process server could not remove under
§1442. Removal by an attorney was not at issue, and
the Fifth Circuit explicitly stated in footnote 2 “[wle
do not attempt to fashion a definition of “officer of the
court,” nor do we opine as to whether attorneys are
‘officers of the courts of the United States’ within the
meaning of Sec. 1442”.”
The Fifth Circuit opinion here does not explain how
the 1956 Supreme Court case of Cammer v. United
States controls any kind of removal, but it treats the
Cammer opinion as settled caselaw giving me notice
that removal was not available, notwithstanding (1)
that Cammer says nothing at all about any kind of
removal, (2) that there is no circuit-court caselaw
8. Appendix A, Circuit Court Opinion, p.3a
9. Herron v. Continental Airlines, Inc., 95-10645, note 2 (CA5
1/23/1996) 73 F.3d 57, 59
anywhere applying Cammer to the question of an
admitted attorney removing under §1442, and (3) that
the Fifth Circuit’s own Herron case acknowledges the
question as being unresolved. Cammer’s holding was
“(wje hold that a lawyer is not the kind of ‘officer’ who
can be summarily tried for contempt under 18 USC
§401(2).""" Cammer’s reasoning, in part, was that
an attorney is not an “officer of the court” within the
ordinary meaning of that term. “Ordinary meaning”
informs but does not control the meaning of that term
in the text of the statute 28 USC §1442, and the Fifth
Circuit was unwarranted in holding that it does
In some different appeal— with the issue properly
presented and _ briefed a court might apply and
extend the reasoning of the 1956 Cammer decision to
synthesize a new holding that attorneys cannot remove
under 28 USC §1442. Such a new holding would become
controlling caselaw, which would put all attorneys
in the future on notice that attempted removal was
unreasonable. But such controlling caselaw did not
exist on 5 May 2009 when I filed my Notice of Removal.
The Cammer decision had nothing to do with removal,
but the Fifth Circuit punishes me for failing to foresee
that the Cammer decision might be extended a half
century later to disallow removal by attorneys, and
punishes me twice by upholding the district court’s
fee-shifting, and then adding sanctions for a frivolous
appeal. By doing so, the Fifth Circuit conflicts with
both Supreme-Court and its own precedent,'' which
holds that the reasonable objective bases for removing
must be analyzed as of the time of removal; that a
10. Cammer vu. United States, 350 US. 399, 407-08 (1956)
11. Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005),
citing Hornbuckle v. State Farm Lloyds, 03-10938 (CA5
9/10/2004) 385 F.3d 538, 541, and Valdes v. Wal-Mart Stores,
Inc., 99-20519 (CA5 1/12/2000) 199 F.3d 290, 293
9
court’s discretion in awarding fees should be faithful to
the law’s purposes; and that the threat of fee-shifting
should not be so strong as to discourage all but the most
obvious removals. This conflict warrants certiorari.
D. Seventh-Circuit rule is rejected by the Fifth.
In the Seventh Circuit:
As a general rule, if, at the time the defendant
filed his notice in federal court, clearly
established law demonstrated that he had
no basis for removal, then a district court
should award a plaintiff his attorneys’ fees.
By contrast, if clearly established law did not
foreclose a defendant’s basis for removal, then a
district court should not award attorneys’ fees.’
This rule 1s useful to courts and to attorneys trying to
avoid sanctions. I briefed and urged the Seventh-Circuit
rule on the district and circuit courts, who rejected it
without comment. This makes a conflict between the
Seventh and Fifth Circuits, warranting certiorari.
E. Other reasonable grounds for removal were
asserted and supported, but overlooked.
Federal-officer removal under §1442 was only one of
the grounds asserted and supported. The removal was
also based on §1441 federal-question removal because
of the question of 28 USC §1367(d) in the plaintiffs
complaint when viewed as a well-pleaded complaint. A
Constitutional issue— subsidiary to the other issues—
was also identified. If the district and circuit courts
had applied the proper standard and analyzed whether
these other grounds for removal were reasonable, then
the §1442 grounds would likely have been recognized
as being not essential to an inquiry of whether the
removal as a whole was reasonable.
12. Lott v. Pfizer, Inc., 06-3372 (CA7 6/25/2007) 492 F.3d 789, 793.
10
F. Neither the district court nor the Fifth
Circuit applied the proper Martin standard.
The Fifth Circuit reverted to the older discretion
standard of Miranti v. Lee'*, which has been superceded
by Valdes“ and Hornbuckle” in the Fifth Circuit, and
by Martin v. Franklin Capital Corp.'® everywhere.
The district court only cited the 1993 Miranti case,
and declined to acknowledge the newer cases. The
district court also declined to make any proper findings
regarding reasonableness of any of the grounds for
removal as required to support fee-shifting under the
current caselaw, and instead based the fee-shifting
award solely upon its “discretion upon a finding that
removal is improper’,”’ citing only Miranti. The Fifth
Circuit acknowledged the existence of the Martin,
Valdes, and Hornbuckle cases, but overlooked them
and affirmed only on the basis of the district court’s
discretion, with citations to Miranti and to a 1996
district court case.'®
In Martin, in 2005, the Supreme Court provided
detailed guidance regarding discretion as it applies to
§1447(c) fee-shifting.'? The Fifth Circuit has overlooked
this guidance and reverted to an older, outdated notion
of discretion, which warrants certiorari here.
13. Miranti v. Lee, 92-3576 (CA5 10/7/1993) 3 F.3d 925.
14. Valdes v. Wal-Mart Stores, Inc., 99-20519 (CA5 1/12/2000)
199 F.3d 290, 293.
15. Hornbuckle v. State Farm Lloyds, 03-10938 (CA5 9/10/2004)
385 F.3d 538, 541.
16. Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).
17. Appendix D, District Court Order of 20 July 2009, p.7a.
18. Appendix A, Circuit Court Opinion of 5 March 2010, p.2a.
19. Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005).
11
G. Appeal of quantum was overlooked, and no
proper lodestar analysis was done by any
court.
My appeal contained a detailed objection to specific
hours claimed, where the impropriety of the hours are
shown on the face of the billing, and with citation to the
relevant Fifth Circuit precedent. This entire aspect of
the appeal was overlooked. The district court failed
to analyze and confirm the quantum of attorney fees
in a proper lodestar analysis, but instead summarily
endorsed the quantum because of the “vexatious” nature
of the prior litigation. The Fifth Circuit overlooked this
and let it stand, and by doing so was in conflict with
its own precedent, which states “[w]e must determine
whether the record clearly indicates that the district
court has utilized the Johnson framework as the
basis of its analysis, has not proceeded in a summary
fashion, and has arrived at an amount that can be
said to be just compensation”*®. My detailed objection
to the attorney fees awarded as Rule-38 sanctions was
likewise overlooked, and none of the $12,955 I was
sanctioned ever got a proper lodestar analysis by either
of the courts, in conflict with Fifth Circuit precedent,
and warranting certiorari here.
H. The Fifth Circuit’s Rule-38 sanctions
conflict with its own precedent.
Fifth-Circuit precedent states that an appeal of
a novel or unresolved question or a question of first
impression is not considered frivolous or sanctionable.?!
Whether an admitted attorney may remove as an
20. In re High Sulfur Content Gasoline Products Liab., 07-30384
(CA5 2/4/2008) 517 F.3d 220, 227 (internal quotes omitted).
21. Macklin v. City of New Orleans, 01-31039 (CA5 7/25/2002)
300 F.3d 552, 554; Estiverne v. Saks Fifth Avenue, 93-3317
(CA5 12/28/2002) 8 F.3d 1171, 1174.
12
“officer of the court” was a novel, unresolved question
and an issue of first impression. Consequently the
question actually at issue on appeal— whether I had
a reasonable objective basis for removal at the time of
removal— was also a novel, unresolved question and
an issue of first impression. Therefore, existing Fifth
Circuit precedent says that I should not have been
sanctioned for a frivolous appeal, and the decision here
imposing sanctions is in conflict with Fifth Circuit
precedent, warranting certiorari.
CONCLUSION
Because the district and circuits courts did not
apply the proper standard in awarding fee-shifting on
remand, and did not apply a proper lodestar analysis
to the quantum of award, and because the circuit court
declined to follow the rule of another circuit, and did not
follow its own precedent in ordering Rule-38 sanctions,
and because the circuit court has made a broad ruling
on an issue not properly on appeal before it, this Petition
for a Writ of Certiorari should be granted.
Respectfully submitted:
Mark Edw. Andrews
Counsel of Record
Andrews Arts & Sciences Law, LLC
7104 Coliseum St.
New Orleans, LA 70118-4818
504-383-3632
mea@mealaw.com
Attorney for Petitioner
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
Appendix A, Circuit Court Opinion
of 6 March 2010......... la
Appendix B, Circuit Court Denial of
Rehearing 13 April 2010. .5a
Appendix C, District Court Minute
Order of 24 June 2009 ...6a
Appendix D, District Court Order
of 20 July 2009 ......... 7a
Appendix KE, Supervisory Writ (La.App.)
of 26 January 2010..... 10a
Appendix F, Relevant Statutes .......39a
la
APPENDIX A, CIRCUIT COURT OPINION
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 09-30642
Summary Calendar
Filed March 5, 2010
Charles R. Fulbruge III, Clerk
D DOUGLAS HOWARD, JR..,
Plaintiff - Appellee
v.
LESLEY SIMMONS ST. GERMAIN, ET AL
Defendants - Appellants
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:09-cv-03450
Before BENAVIDES, PRADO, SOUTHWICK, Circuit
Judges.
PER CURIAM:
Defendants-Appellants Mark Edw. Andrews,
Lesley Simmons St. Germain, and David E. Simmons
(“Appellants”) appeal the imposition of fee-shifting
by the district court. Plaintiff-Appellee D. Douglas
Howard (“Appellee”) sued the Appellants in state court
for defamation, and the Appellants removed the case to
federal court. After hearing arguments on the issue,
the district court remanded the case to state court
and assessed attorney’s fees against Appellants under
28 U.S.C. § 1447(c). Appellants do not seek review of
2a
the district court’s decision to remand. See 28 U.S.C.
§ 1447). Thus, we only consider the district court’s
decision to impose liability on all Appellants for
Appellee’s legal fees.
We review a district court’s award for attorney’s
fees under the deferential abuse of discretion standard.
Hornbuckle v. State Farm Lloyds, 385 F.3d 538, 541
(5th Cir. 2004). Subsidiary factual findings underlying
this award are reviewed for clear error. League of
United Latin Am. Citizens No. 4552 (LULAC) v. Roscoe
Indep. Sch. Dist., 119 F.3d 1228, 1232 (5th Cir. 1997).
The decision to impose any fee award against one or
all the Defendants, jointly and severally, is within the
court’s discretion. See, e.g., Park Nat. Bank of Houston
v. Kaminetzky, 976 F. Supp. 571, 584 (S.D. Tex. 1996).
Section 1447(c) permits a district court to award “just
costs and any actual expenses, including attorney’s fees”
that are incurred as a result of the removal. 28 U.S.C.
§ 1447(c); see also Miranti v. Lee, 3 F.3d 925, 927-28
(5th Cir. 1993) (stating that both costs and attorney’s
fees against the removing party may be imposed if the
court finds that removal is improper under § 1447(c)).
The Supreme Court in Martin v. Franklin Capital
Corp., 546 U.S. 132, 141 (2005) nected that courts may
award attorney’s fees when the removing paity lacks
an objectively reasonable basis for removal. Similarly
in Hornbuckle, we stated that attorney’s fees should
be denied if an objectively reasonable basis exists. See
Hornbuckle, 385 F.3d at 541.
The district court did not err in assessing attorney’s
fees against the Appellants. Appellants argue that their
removal is supported by reasonable grounds because he
is an officer of the court and because his case raises
a constitutional question. While Section 1442 permits
a pending state action to be removed for “any officer
3a
of the courts,” the district court correctly found that
Andrews was not an officer of the court in this context.
The Supreme Court in Cammer v. United States, 350
U.S. 399, 405-08 (1956), determined that an attorney is
not an officer of the court within the ordinary meaning
of that term. See also Ex parte Garland, 71 U.S. 333,
378 (1866). In Cammer, the Court reversed the lower
court’s order because a contempt finding under 18
U.S.C. § 401 could only be assessed against “officers”
of the federal courts. See Cammer, 350 U.S. at 408:
see also Willingham v. Morgan, 395 U.S. 402, 406-08
(1969) (interpreting the purpose of 28 U.S.C. § 1442
as applying to only those cases where a federal officer
required a federal forum and not intended for a private
attorney to use to remove a state action to federal court
on the basis that he was an “officer of the court”).
Moreover, in the instant case, a constitutional
question was not raised by the petition’s state claims
nor did the prior RICO legislation raise a federal
question. Thus, the district court did not abuse its
considerable discretion in taxing costs and attorney’s
fees to Appellants because an objectively reasonable
basis for removal did not exist.
Appellee has moved under Rule 38 for sanctions and
double costs and attorney’s fees against Appellants.
Federal courts have inherent power to impose sanctions
for abuse of the judicial process. Chambers v. NASCO,
Inc., 501 U.S. 32, 43-44 (1991). Rule 38 of the Federal
Rules of Appellate Procedure authorizes an award of
“just damages and single or double costs to the appellee”
if we determine that an appeal is frivolous. See Buck
v. United States, 967 F.2d 1060, 1062 (5th Cir. 1992).
An appeal is frivolous if “the result is obvious or the
arguments of error are wholly without merit.” See id.
(quoting Coghlan v. Starkey, 852 F.2d 806, 811 (5th
4a
Cir. 1988)). We recently considered a similar request
by Appellee in litigation involving these parties in
St. Germain v. Howard, 556 F.3d 261, 264 (5th Cir.
2009) (“Howard I’). In Howard I, we dismissed the
Appellant’s appeal concerning their RICO suit brought
against Appellee and two law firms with which he is
affiliated without imposing sanctions. See id. at 264.
However, we noted that it was a “close case” on our
decision to deny sanctions because the Appellants did
not clearly present a cognizable civil RICO claim. Jd.
Here, we impose sanctions of double costs and attorney’s
fees against Appellant. Supreme Court cases exclude
a private attorney from the meaning of “officer of the
court,” and the district court found Appellant’s “officer
of the court” argument to be a ridiculous, “farfetched
notion.” Appellants were on notice that the overruling
of objections to remand was an obvious result when they
were unable to support their argument at the district
court. This appeal is frivolous for purposes of Rule 38.
For the foregoing reasons, we AFFIRM the
judgment of the district court and GRANT the motion
for sanctions and double costs and attorney’s fees.
Ha
APPENDIX B, CIRCUIT COURT DENIAL OF
REHEARING
Case: 09-30642 [...] Date Filed 4/13/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 09-30642
D DOUGLAS HOWARD, JR..,
Plaintiff - Appellee
v.
LESLEY SIMMONS ST. GERMAIN, HILLARY
ROSE HILLYER, formerly known as Hillary Rose
Smith; MELISSA BRANIGHAN LUMINAIS;
MARK EDWARD ANDREWS; ANDREWS ARTS &
SCIENCES LAW, LLC; DAVID E. SIMMONS, D.D.S.,
Defendants - Appellants
Appeal from the United States District Court for the
Eastern District of Louisiana, New Orleans
ON PETITION FOR REHEARING EN BANC
Before BENAVIDES, PRADO, SOUTHWICK, Circuit
Judges.
PER CURIAM:
Treating the Petition for Rehearing En Banc as a
Petition for Panel Rehearing, the Petition for Panel
Rehearing is DENIED. No member of the panel nor
judge in regular active service of the court having
requested that the court be polled on Rehearing En
Banc (Feb. R. App. P. and 5™ Cir. R. 35), the Petition
for Rehearing En Banc is DENIED.
ENTERED FOR THE COURT:
s/ FORTUNATO P. BENAVIDES
United States Circuit Judge
ba
APPENDIX C, DISTRICT COURT MINUTE ORDER
MINUTE ENTRY
BARBIER, J.
JUNE 24, 2009
JS-10: 40 min.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
D. DOUGLAS HOWARD JR. CIVIL ACTION
NUMBER: 09-3450
VERSUS SECTION: J
LESLEY SIMMONS ST. GERMAIN, ET AL
COURTROOM DEPUTY: COURT REPORTER:
KILEEN STENSRUD CATHY PEPPER
WEDNESDAY, JUNE 24, 2009 9:30 A.M.
JUDGE CARL J. BARBIER PRESIDING
PLAINTIFF’S MOTION TO REMAND TO STATE
COURT (17)
Argued; ORDERED GRANTED
[TIS FURTHER ORDERED that the amount of
attorneys fees and costs associated with filing this
motion be assessed to Mark Andrews, defendants’
counsel.
Plaintiffs are to file a motion for fees and costs by
JULY 6, 2009. Traverse to this motion is to be filed by
JULY 13, 2009.
ATTORNEYS: D. Douglas Howard Jr., Esq. & Shawn
C. Reed, Atty at Law, for plaintiff
Mark Andrews, Esq., for defendants
APPENDIX D, DISTRICT COURT ORDER
Case: 2:09-cv-3450-CJB-KWR Doc. 63 Filed 7/20/2010
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
D. DOUGLAS HOWARD, JR CIVIL ACTION
VERSUS NUMBER: 09-3450
ST. GERMAIN ET AL SECTION: J(4)
ORDER
Before the Court is Plaintiffs Motion for Attorney’s
Fees (Rec. Doc. 59), filed in accordance with the Court’s
ruling in open-court on June 24, 2009, which granted
Plaintiff's motion to remand the above-captioned matter
and awarded attorney’s fees and costs under 28 U.S.C
§ 1447(c) in connection with Defendants’ wrongful
removal of this case. Plaintiff avers that no costs were
incurred in the filing of the motion to remand, and
thus he seeks only a reasonable attorney’s fee in the
present motion. The Defendants’ opposition attempts
in large part to argue against the validity of the
Court's determination that a fee award is warranted in
the present circumstances. As the Court has already
made its determination as to the propriety of an award
under § 1447(c), the Court will not address Defendants
arguments that such an award is improper
To the extent Defendants oppose the quantum
of Plaintiffs requested award, the Court finds that
Defendants arguments are unavailing Under the
provisions of § 1447(c), “[a]|n order remanding [a] case
may require payment of just costs and any actual
expenses, including attorney’s fees, incurred as a result
of the removal.” 28 U.S.C. § 1447(c). “[T]he imposition
of both costs and attorneys’ fees against the removing
party may be awarded in the Court's discretion” upon
a finding that. removal 1s improper under § 1447(c)
Mirants v. Lee, 3 F.3d 925, 928 (5th Cir, 1993)
The Fifth Circuit adheres to the “lodestar” method
for calculating reasonable attorneys’ fees in the context
of an award under § 1447(c). Halliburton Latin America
SA v. Intern. Technical Solutions, 273 38d 392. 3892
(5th Cir. 2001). This method requires the district court
to “determine the reasonable number of hours expended
on the litigation and the reasonable hourly rate for the
participating lawyers” based on “contemporaneous
billing records or other sufficient documentation so that
the district court can fulfill its duty to examine the
application for noncompensable hours.” La. Power &
Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995)
“A lodestar 1s calculated by multiplying the number of
hours reasonably expended by an appropriate hourly
rate in the community for such work.” Hetdtman ¢
County of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999)
The lodestar is presumed to be the reasonable fee, but
it may be adjusted after considerations of the factors
listed in Johnson v. Georgia Highway xpress, Ine
488 F.2d 714, 717-19 (5th Cir.1974), overruled on other
grounds, Blanchard v. Bergeron, 489 U.S. 87 (1989)
Gonzalez v. Associates Health & Welfare Plan, 2002
WL 31933208, 1 (5th Cir. 2002)
In this case, Plaintiff has requested a fee award in
the amount of $7,088.00, which the Court finds to be
appropriate in light of the hours reasonably expended
and the hourly rate charged in procuring 4 remand of
this matter. The Court notes that the $7,088.00 fe
award 1s especially appropriate in light of the two-year
history of vexatious litigation against Plaintiff by the
Defendants in this matter, which has already neurly
resulted in sanctions against Defendants on two prior
occasions. See Civil Action No. 07-9040. Ree. Do
9a
and 39. Additionally, the Court notes that Defendants’
various grounds for removal - while ultimately baseless
- were wide-ranging and complicated, and thus required
significant effort by counsel for plaintiff.
Finally, tothe extent that Defendant Andrews argues
that an award of $7,088.00 against him individually
would be financially ruinous, the Court notes that it is
within the Court’s discretion to impose any fee award
against all the Defendants, jointly and severally, as
parties to the improper removal. See, e.g., Park Nat.
Bank of Houston v. Kaminetzky, 976 F. Supp. 571, 584
(S.D. Tex. 1996). Thus, Andrews’ arguments related to
his individual financial situation are irrelevant.
As such, the Court finds that Plaintiffs requested fee
award of $7,088.00 is reasonable in the circumstances
of this case. Accordingly,
IT IS ORDERED that Plaintiffs Motion for
Attorney’s Fees (Rec. Doc. 59) is hereby GRANTED.
Plaintiff is hereby awarded $7,088.00 under 28 U.S.C. §
1447(c) as a reasonable attorney’s fee for the remand of
this matter, to be paid by Defendants Lesley Simmons
St. Germain, Hillary Rose Hillyer, Melissa Branighan
Luminais, Mark Edward Andrews, Andrews Arts &
Sciences Law, LLC, and David E. Simmons, jointly and
severally.
New Orleans, Louisiana this 20th day of June,
2009.
s/ CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
[note— signing date was 20 July 2009]
10a
APPENDIX E, SUPERVISORY WRIT (La.App.)
[26 Jan. 2010]
NO. 2009-C-1344
COURT OF APPEAL, FOURTH CIRCUIT
STATE OF LOUISIANA
D. DOUGLAS HOWARD JR.
VERSUS
LESLEY SIMMONS ST. GERMAIN, HILLARY
ROSE SMITH, MELISSA BRANIGHAN,
MARK EDW. ANDREWS, ANDREWS ARTS &
SCIENCES LAW, LLC & DAVID E. SIMMONS, DDS
IN RE: LESLEY SIMMONS ST. GERMAIN,
HILLARY ROSE SMITH, MELISSA BRANIGHAN,
MARK EDW. ANDREWS, ANDREWS ARTS &
SCIENCES LAW, LLC & DAVID E. SIMMONS, DDS
APPLYING FOR: SUPERVISORY WRITS
DIRECTED TO: HONORABLE LLOYD J. MEDLEY,
JR., CIVIL DISTRICT COURT, ORLEANS PARISH,
DIVISION “D-16”, 2009-2267
WRIT GRANTED IN PART;
WRIT DENIED IN PART
Attorney D. Douglas Howard brought this defamation
action against three former clients, their attorney, Mark
Andrews, and the father of one of the clients, David
E. Simmons. Thereafter, although not necessarily in
this order, Mr. Howard filed a motion to disqualify
defendants’ attorney, exceptions of prescription and res
judicata, and an ex parte motion directing defendants
to pay security costs, while the defendants, jointly, filed
a special motion to strike, reconventional demand, and
counter motion to strike order for security for costs.
The defendants also filed a motion for contempt against
Mr. Howard that the district court did not hear, but
instead, set for hearing on October 16, 2009.
lla
On September 4, 2009, following a contradictory
hearing on the various motions, the district court
granted all of Mr. Howard’s motions, denied the
defendants’ motions, and dismissed their reconventional
demand. This ruling was memorialized on September
10, 2009, when the district court signed the following
three judgments which:
(1) ordered that Mark Andrews be disqualified from
representing all of the defendants except himself,
(2) granted Mr. Howard's’ exceptions of
prescription and res judicata, dismissing all of the
defendants’ claims with prejudice, and
(3) denied attorney Mark Andrews’ special motion
to strike dated March 18, 2009, and amended motion
to strike dated June 26, 2009. Defendants now seek
supervisory review of these judgments. On October 15,
2009, the plaintiff filed a motion requesting additional
time to file a response and a motion to dismiss the
instant writ application as untimely, unauthorized,
and improperly filed. Specifically, plaintiff argues
that the abovementioned writ application should be
dismissed because it does not comply with Rules 4-4(C)'
1. Uniform Rules, Court of Appeal, Rule 4-4(C) provides:
In ali applications requesting a stay order or other priority
consideration, the applicant must certify in affidavit form that
the trial court and all counsel and unrepresented parties have
been notified by telephonic or other equally prompt means of
communication that said writ application has been or is about
to be filed and that said application has been served forthwith
on the trial court and all parties at interest or their counsel,
by means equal to the means used to effect filing with the
appellate court. (That is, if filing with the appellate court 1s by
overnight mail, the same means shall be employed for service
on the trial court and all palties at interest or their counsel. If
filing 1s by hand to the appellate court, service must be made
on the trial court and all patties at interest or their counsel by
an equally prompt means.)
12a
and 4-5? of the Uniform Rules - Courts of Appeal,
2. Uniform Rules, Courts of Appeal, Rule 4-5 provides:
The original application for writs shall be signed by the
applicant or counsel of record, and shall contain an affidavit
verifying the allegations of the application and certifying that a
copy has been delivered or mailed to the respondent judge and
to opposing counsel, and to any opposing party not represented
by counsel. The affidavit shall list all parties and all counsel,
indicating the parties each represents. The affidavit also shall
list the addresses and telephone numbers (if available) of the
respondent judge, opposing counsel and any opposing pariy not
represented by counsel. The original and duplicates shall have
the pages of the application and attached documents and exhibits
consecutively numbered: the entire submission shall be hole
punched and bound in two places along the top margin, preferably
with 4 1/4 inch metal file fasteners such that no part of the text on
any page is obscured, and in sections consisting of no more than
250 pages; and the submission shall contain these items:
(A) an index of all items contained therein;
(B) aconcise statement of the grounds on which the jurisdiction
of the court is invoked;
(C) a concise statement of the case, including the status of the
case at the time the writ application is filed, in order to reflect any
trial dates or hearing dates that are pending;
(D) the issues and questions of law presented for determination
by the court;
(E) the assignments or specifications of errors and a
memorandum in support of the application. in accordance with
Rules 2-12.2 and 2-12.10, and a prayer for relief;
(F) a copy of the judgment, order, or ruling complained of (if
by written judgment, order, or ruling);
(G) a copy of the judge’s reasons for judgment, order, or ruling
(if written);
(H) a copy of each pleading on which the judgment, order, or
ruling was founded, including the petition(s) in civil cases and the
indictment or the bill of information in criminal cases;
(1) a copy of pertinent court minutes; and
(J) the notice of intent and return date order required by
Rules 4-2 and 4-3.
(K) A separate page entitled ‘REQUEST FOR EXPEDITED
CONSIDERATION’ and indexed as such shall be included if the
13a
because it does not contain: (1) asignature, (2) an affidavit
of notification or affidavit verifying the allegations,
as required by Rule 4-4(C) and 4-5, respectively, (3)
evidence that the applicant notified the other defendants
that this application was filed on their behalf, one of
whom has retained new counsel, and (4) evidence of
notice to Shawn Reed, plaintiffs co-counsel/counsel
of record. Alternatively, plaintiff argues that issues
raised by defendants regarding the district court’s ex
parte order for security for costs dated August 25, 2009,
should be dismissed because a return date was never
requested and the thirty day time period has expired
The plaintiffs argument is overstated, as plaintiff signed
the petition but failed to provide an order enrolling
Shawn Reed. However, Shawn Reed appeared of record
at the hearing, along with Joanne Rinardo, plaintiffs
attorney on the reconventional demand. The remaining
arguments of plaintiff are without merit because the
original writ application is signed as required by Rule
4-5, the ex parte order for security for costs dated
August 25, 2009, is timely as defendants’ opposition
was denied on September 10, 2009, and the ruling on
the motion to disqualify is presented for review herein.
The request for expedited consideration was denied, so
issues related to Rule 4-4(C) are moot.
applicant seeks expedited relief or a stay order as required by
Rule 4-4(B) and a corresponding affidavit as required by Rule
4-4(C).
(L) If any trial or hearing date is set after a writ application
is filed or if any trial] or hearing date included in a filed writ
application is changed or continued, the applicant shall notify
the court by facsimile or by email, if directed by the Court of
Appeal, of the setting, change, or continuance of the hearing date
no later than three business days after the setting, change or
continuance. The filed writ application shall be supplemented
with this information not later than one week after the setting,
change or continuance.
14a
The defendants complied with the Uniform Rules -
Courts of Appeal, Rules 4-2 and 4-3, by simultaneously
notifying the judge and parties of their intent to apply
for supervisory writs, requesting a return date by oral
motion in open court immediately after the hearing,
and timely filing this writ application on the return
date of October 5, 2009, in compliance with Rule 4-5,
except for several deficiencies, noted above. On October
22, 2009, the defendants filed a supplement to the writ
application as evidence of having corrected the noted
deficiencies, and filed an opposition to the motion to
dismiss on October 26, 2009. Accordingly, the plaintiffs
motion to dismiss the instant writ application is denied.
The current course of events commenced when
‘ Lesley Simmons St. Germain, Hillary Rose Smith, and
Melissa Branighan, three former clients of attorney
D. Douglas Howard, joined together and sued him
in federal court alleging a pattern of behavior that
violated the federal civil RICO statute. Finding no
claim under RICO, the federal court dismissed the
complaint, without prejudice, and directed that the
state law pendant claims should be heard by the state
court. But, before his former clients filed any action
in state court, Mr. Howard filed the instant action
for defamation against them, their attorney, Mark E.
Andrews, his law practice, Andrews Arts & Sciences
Law, LLC, and David E. Simmons, DDS, the father of
former client Lesley Simmons St. Germain.
In the instant suit, Mr. Howard is seeking damages
for injuries he allegedly sustained to his personal and
professional reputation as a result of alleged defamatory
publications made by the defendants, malicious
prosecution of these claims, and abuse of process. In
summary, Mr. Howard alleges that the defendants
injured his personal and professional reputation,
lda
caused him humiliation, embarrassment, mental and
emotional distress, lost business opportunities, and
loss of enjoyment of life. He alleges that these damages
were caused by the former clients publishing defamatory
communications in legal proceedings filed against him
for malpractice, their attorney by representing them in
said proceedings, and St. Germain’s father by providing
her with financial assistance.
Specifically, Mr. Howard alleges that the defendants
produced the following malicious publications:
(1) Lesley Simmons St. Germain by filing a(n) (a)
answer to Howard's suit on open account, (11) petition
for nullity, (111) suit for malpractice, (iv) RICO action,
and ({v) reconventional demand in the case at bar,
in which she alleged Mr. Howard breached their
contract, performed unauthorized work, over-billed,
fraud, inadequate representation, failure to prosecute,
exerting duress and undue influence by bullying,
yelling, and threatening to withdraw with a pending
court date;
(2) Hillary Hillyer Smith by filing the RICO action
in which she alleged that Mr. Howard breached their
contract by conducting her divorce with complete
disregard for her clearly stated wishes and committed
malpractice by his abrupt, unlawful withdrawal;
(3) Melissa Branighan Luminais by filing the RICO
action in which she alleged that Mr. Howard committed
legal malpractice, breach of contract, and over billing
for unauthorized work;
(4) Attorney Mark Andrews by initiating and
persisting in prosecuting the afore-mentioned actions
on behalf of these former clients; and
(5) David Simmons by maliciously conspiring with
the attorney and former clients in their campaign to
16a
tarnish Mr. Howard’s reputation and by paying for the
services of numerous attorneys, presumably on behalf
of his daughter, for this purpose.
Mr. Howard amended his petition to add allegations
of malicious prosecution, abuse of process, and
conspiracy, and defendants filed a joint answer and
reconventional demand. Next, plaintiff moved to
disqualify Mark Andrews as the defendants’ attorney
for an alleged conflict of interest, and defendants filed
a special motion to strike the allegations related to
the alleged conflict. Defendants opposed plaintiff's
exceptions of prescription and res judicata, and filed a
counter motion to strike plaintiff's ex parte order for
defendants to pay security for costs, and then filed a
motion for contempt.
With the exception of the motion for contempt that
was set for hearing on October 16,2009, the district court
heard argument on all motions on September 4, 2009,
and immediately thereafter issued the aforementioned
three judgments.
Asserting error by the district court, defendants
have raised the following issues for review:
1. Whether the judgment granting exceptions
of prescription and res judicata, and dismissing
defendants’ reconventional demand:
a. Whether defendants’ reconventional demand
was properly dismissed where it consists essentially of
state-law claims formerly brought as pendant claims to
an action in federal court that were dismissed, without
prejudice, by the federal court in order to be refiled in
state court, in light of 28 U.S.C. § 1367(d) and La. R.S.
9:5605.
b. Whether defendants’ reconventional demand
was properly dismissed where, it contains a subset of
l7a
claims that could theoretically have been brought as
a permissive, not compulsory, reconventional demand
to a suit on open account when a default judgment
was taken, limiting the preclusive effect of the default
judgment to its own narrow terms.
2. Whether the judgment denying defendants’
special motion to strike, under La. C.C.P. art. 971:
a. Whether, under La. C.C.P. art. 971, a plaintiff can
establish a “probability of success” without sufficient
evidence of the required elements of his claims for
defamation, malicious prosecution, and emotional
distress.
b. Whether, under La. C.C.P. art. 971, aspecial motion
to strike was properly denied where the defendants’
constitutional right to petition was established, and the
plaintiff failed to establish a probability of success on
every element of these claims.
c. Whether, under La. C.C.P. art. 971, attorney’s fees
and costs requested by defendants were properly denied,
when defendants established a constitutional right to
petition, and plaintiff failed to establish a probability
of success on every required element of these claims.
3. Whether the judgment disqualifying Mark
Andrews as attorney for the co-defendants:
a. Whether a plaintiff has standing to assert a
conflict of interest among co-defendants and their
attorney because the defendants’ attorney has been
made a co-defendant, where the co-defendants did
not assert a conflict, the attorney is prevented from
testifying against the codefendants’ interests by the
continuing duties of confidentiality and loyalty, and
the attorney-testimony rule only operates to restrict an
attorney from being an advocate at trial, and does not
operate to disqualify an attorney.
18a
b. Whether the district court properly disqualified
Mark Andrews from representing his own solo-practice
law firm, which was made a co-defendant, when plaintiff
did not motion the court to do so.
4. Whether the district court properly granted the
plaintiff's ex parte motion for security costs under La.
R.S. 13:1215 and ordered the defendants in the main
action to pay security costs of $6,500, which the statute
states can only be required from the plaintiff in the
main action and demanded by the defendant in the main
action, regardless of whether or not any reconventional]
demand is filed.
DISCUSSION
I. EXCEPTIONS
Exception of Prescription
The first judgment presented for review granted the
plaintiffs exceptions of prescription and res judicata,
and dismissed all claims made by defendants with
prejudice.
The defendants argue that the claims asserted in
their reconventional demand are not prescribed because
under Louisiana law, the filing of a claim in any court of
competent jurisdiction interrupts prescriptive periods,
and that the claims for legal malpractice and breach
of contract were formerly pending in federal court.
Federal law, specifically, 28 U.S.C. § 1367(), controls
the time for refilling pendant state claims dismissed
from federal court and tolls the state law limitation
periods. The defendants argue that their claims are
not prescribed because under 28 U.S.C. § 1376(d), the
claims were tolled while the RICO action, dismissed
on March 6, 2008, was pending on appeal, and as
the appellate court’s ruling was issued on February
19a
11, 2009, their claims were timely filed in state court
on March 3, 2009. Defendants also argue that their
claims are compulsory under La. C.C.P. art. 1061.
The plaintiff filed an exception of prescription on
grounds that the defendants’ claims were prescribed
before the RICO action was filed in federal court, and
at the latest, thirty days after it was dismissed.
The general rule is that the peremptory exception
may be pleaded at any stage of the proceeding in
the trial court prior to a submission of the case for a
decision. La. C.C.P. art. 928. The standard of review
on an exception of prescription is manifest error when
the trial court makes its ruling based on factual
determinations. Jn re Noe, 2004-0760, p. 4 (La.App.
4 Cir. 8/3/2005), 916 So.2d 1138, 1140. The trier of
fact is afforded great discretion. Turnbull v. Thensted,
99-0025, p. 4 (La.App. 4 Cir. 3/1/2000), 757 So.2d 145,
149. Therefore, an appellate court may only reverse the
finding of the trial court if a reasonable factual basis
for the findings does not exist and those findings are
manifestly erroneous. Jn re Noe, 916 So.2d at 1140.
However, when the appellate court finds that there is a
reversible error of law, we must redetermine the facts
de novo from the entire record and render a judgment
on the merits. Perez v. Shook, 97-0420, p. 5 (La.App. 4
Cir. 12/3/97), 703 So.2d 821, 826.
The RICO action and pendant state law claims
were filed in the federal district court on November
20, 2007. After being dismissed on March 6, 2008,
the defendants filed an appeal. On June 20, 2008, the
district court granted plaintiff's motion for attorney’s
fees and ordered the defendants (St. Germain, Hillyer,
Luminais, Andrews, Andrews’ law practice, and
Simmons) to pay $7,088.00 to plaintiff.
20a
Federal jurisdiction over pendant state claims is
governed by 28 U.S.C. § 1367. When a district court
dismisses the federal claims serving as the basis for
its jurisdiction and elects not to exercise supplemental!
jurisdiction over state law claims, the unadjudicated
pendant state law claims must be dismissed without
prejudice to allow the plaintiff to refile in state court.
Davison v. Weston, 2003 WL 21350344, p. 1 (N.D.Tex.),
6/30/2003, citing Bass v. Parkwood Hosp., 180 F.3d
234,246 (5th Cir. 1999).
The defendants argue that their reconventional
demand should not have been dismissed because it
contained a subset of claims that could theoretically
have been brought as a permissive, but not compulsory,
reconventional demand to a suit on open account, but
where a default judgment before answer was taken in
the suit on open account, limiting the preclusive effect
of such default judgment to its own narrow terms.
La. R.S. 9:5605 is the defining authority on legal
malpractice and limits an action for damages to one
year from the date of the alleged negligence, or within
one year from the date that the alleged negligence is or
should have been discovered, but not more than three
years from the date of the negligence regardless of
when it is discovered. Once this period has passed the
right of a claimant to begin an action for malpractice
is extinguished. This authority is supported by
subsequent case law. Turnbull, 99-0025, p. 3, 757 So. 2d
at 150, states “Prescription commences to run when a
claimant knew or should have known of the existence
of facts that would have enabled him to state a cause
of action for legal malpractice”, citing Olivier v. Poirier,
563 So.2d 1227 (La.App. 1 Cir. 1990).
In addressing the issue of prescription on the face
of the petition, the court in Jaussig v. Leithead, 96-
Zla
960, p. 10 (La.App. 3 Cir. 2/19/97), 689 So.2d 680
686, stated that “[t]he burden of proof is normally on
the party pleading prescription. Prescription begins
to run at the time a claimant knew or should have
known of the existence of facts that enable him or het
to state a cause of action for legal malpractice. When,
however, the plaintiffs petition on its face indicates that
prescription has run, the burden shifts to the plaintiff
to show why the claim has not prescribed
Plaintiff argues that the defendants’ claims are
prescribed, but presented no evidence to support thi
claim. Instead, he merely alleges that his representation
of Hillyer ended on June 5, 2006, St. Germain on
November 21, 2006, and Luminais in October 2007
However, La. R.S. 9:5605 also provides that the claim
may be filed “within one year from the date that the
alleged act, omission, or neglect is discovered or should
have been discovered.” While the statute also allow:
for suspension of the running of this one-year period
until the negligent conduct is “discovered or should have
been discovered,” this 1s a showing that the plaintiff
must bear.
The federal complaint was filed on November 20,
2007, so St. Germain’s claim for malpractice 1s not
prescribed; but Hillyer’s and Luminais’ malpractice
claims appear prescribed on their faces
Thus, if the defendant shows that, on the face
of the petition, the action has prescribed by
the passage of more than one year from the
date of the act or omission which constitutes
the alleged malpractice, it becomes the
plaintiffs burden to prove that the action is not
prescribed. As we interpret this statute, this
may be done by showing that facts constituting
malpractice were not discovered nor should not
have been discovered until | Lal T
before suit was filed
faussig, 96-960, p.11, 689 So.2d at 68!
The defendant arg ue that tla ik r560
exempts their claims for malpractice asserted in thei
reconventional demand because they were defrauded
by the plaintiff under La. C.C.P. art. 1953. In Coffey
v. Block, 99 1221 (La.App. 1 Cir. 6/23/2000), 762 So
2d 1181, the court held that the fraud alleyations of
the plaintiffs petition were sufficient for purposes of
La. R.S. 9:5605, where the plaintiff alleged that her
attorney misrepresented the status of a prescription
issuc with the intent to obtain an unjust advantage over
her, and to cause the loss of her cause of action against
Nevertheless, the party pleading
him for malpractice
fraud must allege with particularity the circumstance
constituting fraud. Kenner v. DeSalvo, 2001-2223, p. ¢
(la.App. 4 Cir. 4/17/2002), 826 So.2d 39, 44
The defendants breach of contract claim is no
prescribed because under La. C.C. Art. 4499, the
prescriptive period for a breach of contract claim }
ten years from the date when the cause of actus
arose. Summons v. Templeton, 97-2349 (La.App. 4 Cu
11/10/98), 723 So.2d 1009. Claims under a contract
prescribe ten years from the date they arise rather
than from the date of the contract. Scobee v. Lewis
264 So.2d 704,708 (La.App. 1 Cir 1972). ‘Ten year
have not clapsed since the initiation of the defendant
employment contracts with the plaintiff. Thus, the
claims for breach of contract asserted by defendant
Hillyer, Luminais, and St. Germain are not prescribed
Kxception of Res Judicata
A cause of action arising out of the sume subject
matter aS a pending suit must be asserted in the
pending suit to avoid the risk of the cause of action
23a
being res judicata. If the cause of action is rot asserted
and the pending suit is finally decided in favor of the
defendant, all causes of action that existed at the time
of the final judgment that arose out of the transaction
or occurrence that was the subject matter of the
pending suit are barred. Tower Partners, LLC v. Wade,
2003-0665, p. 3 (La.App. 4 Cir. 1/21/2004), 869 So.2d
126, 133. However, defendant St. Germain apparently
voluntarily dismissed the claims filed against Mr.
Howard, without prejudice in the matter entitled St.
Germain v. Howard, case no. 2007-6516, Civil District
Court, on September 28, 2007. Accordingly, those
unresolved claims are not res judicata.
The standard of review for the peremptory exception
of res judicata requires this Court to determine if the
“trial court’s decision is legally correct or incorrect.”
Glass v. Alton Ochsner Med. Found., 2004-1824, p. 5
(La.App. 4 Cir. 6/1/2005), 907 So.2d 782, 785. If the
decision of the district court is based on an erroneous
application of law rather than on a valid exercise of
discretion, the decision is not entitled to deference by
the reviewing court. Kem Search, Inc. v. Sheffield, 434
So.2d 1067, (La. 1983); Glass, 2002-0412, p. 4, 832
So.2d at 406. Louisiana law provides “[t]he doctrine of
res judicata is stricti juris and any doubts concerning
the application of this principle must be resolved
against its application.” Alonzo v. State of Louisiana,
ex rel. Dep’t of Natural Resources, 2002-0527, p. 8 (La.
App. 4 Cir. 9/8/2004); 884 So.2d 634, 638.
Res judicata applies when a final judgment precludes
the same parties from reasserting the same claims
in subsequent litigation. The district court erred
in granting plaintiffs exception of res judicata and
dismissing defendants’ reconventional demand because
the record does not indicate that defendants’ claims for
24a
breach of contract, fraud, and legal malpractice were
previously adjudicated. Specifically, plaintiff's suit on
open account is not related to the instant case, so the
default judgment issued in that matter has no bearing
in this matter. The federal court did not rule on the
state pendant claims asserted in the RICO action, but
simply dismissed them so that they could be reasserted
in state court.
II. SPECIAL MOTION TO STRIKE
The second judgment raises issues surrounding the
denial of defendants’ special motion to strike under La.
C.C.P. art. 971, which defendants argue was an error
of law because the district court applied the wrong
standard in reaching its decision, and the plaintiff
failed to show a probability of success on all essential
elements of his claims.
Appellate courts review special motions to strike
using the de novo standard of review because it involves
issues of law and examines whether the trial court was
legally correct. Melius v. Keiffer, 2007-0189, p. 2 (La.
App. 4 Cir. 3/12/2008), 980 So.2d 167, 170. The burden
of proof begins with the party filing the motion to strike
to prove that “the cause of action arises from an act in
the exercise of his right of free speech regarding a public
issue.” Aymond v. Dupree, 2005-1248, p. 7, (La.App. 3
Yir. 4/12/2006) 928 So.2d 721, 727. Once proven, the
plaintiff must then demonstrate a probability of success
on the claim. Jd. In determining whether the plaintiff
established a probability of success on his claims, the
court will “consider the pleadings and supporting and
opposing affidavits.” La. C.C.P. art. 971(A)(2). Melius,
2007-0189, p. 3, 980 So.2d at 171.
The special motion to strike is authorized by La.
C.C.P. art. 971, which the Louisiana legislature enacted
“to screen out meritless claims pursued to chill one’s
25a
constitutional rights under the First Amendment of the
United States Constitution to freedom of speech and
press.” Lee v. Pennington, 2002-0381, p. 4 (La.App. 4
‘ir. 10/16/2002), 830 So.2d 1037, 1041. It is also known
as the anti-SLAPP statute. This article was enacted in
Section 1 of Acts 1999, No. 734. Section 2 of this act
provides:
The legislature finds and declares that there
has been a disturbing increase in lawsuits
brought primarily to chill the valid exercise
of the constitutional rights of freedom of
speech and petition for redress of grievances.
The legislature finds and declares that it is
in the public interest to encourage continued
participation in matters of public significance,
and that this participation should not be chilled
through abuse of the judicial process. To this
end, it is the intention of the legislature that
the Article enacted pursuant to this Act shall
be construed broadly.
In the instant case, the plaintiff has sued the
defendants for defamation, malicious prosecution, abuse
of process, and conspiracy. The defendants argue that
the plaintiff's causes of action arise from the defendants’
acts in furtherance of their constitutional right to
petition, and as the plaintiff has failed to establish a
probability of success on every required element of his
claim, they are entitled to an award for attorney’s fees
and costs under La. C.C.P. art. 971. The defendants
are correct. The district court erred in denying the
defendants’ award of attorney’s fees.
Defamation
The essential elements of a defamation action are:
defamatory words; publication or communication to
a person other than the one defamed; falsity; malice,
26a
actual or implied; and injury. Williams v. Touro
Infirmary, 578 So.2d 1006, 1009 (La.App. 4 Cir.
1991). A communication, although defamatory, may be
protected under a qualified privilege if the statement
is made in good faith and without malice. Melancon
v. Hyatt Corp., 589 So.2d 1186 (La.App. 4 Cir. 1991).
“Good faith’ in this sense means the party making
the statement had reasonable grounds for believing
that the statement was true. 7d. at 1189. “Without
malice” means that the statement was made without
knowledge of its falsity or without reckless disregard
for the truth. Adseru Corp. v. Lincecum, 385 So.2d 432
(La.App. 1 Cir. 1980). To be privileged, an otherwise
defamatory statement must be made in good faith on
any subject matter in which the person communicating
has an interest or in reference to which he has a duty,
to a person having a corresponding interest or duty.
Melancon, 589 So.2d at 1189, citing Toomer v. Breaux,
146 So.2d 723 (La.App. 3 Cir. 1962).
In order to prevail on a defamation claim, the
plaintiff must prove all of the following five elements
by a preponderance of the evidence: (1) a false or
defamatory statement concerning another; (2) an
unprivileged publication to a third party; (8) fault
(negligence or greater) on the part of the publisher; and,
(4) resulting injury. Melius, 2007-0189, p. 5 (La.App. 4
Cir. 3/12/2008), 980 So.2d 167, 172. If even one of these
elements is absent, the cause of action fails. Sommer
v. State, Dept. of Transp. and Development, 97-1929, p.
25-26 (La.App. 4 Cir. 3/29/2000), 758 So.2d 923, 939.
In Louisiana, defamatory words have traditionally
been classified into two categories: those that are
defamatory per se and those that are susceptible of a
defamatory meaning. Lemeshewsky v. Dumaine, 464
So.2d 973, 975 (La.App. 4 Cir. 1985). Words which
27a
expressly or implicitly accuse another of criminal
conduct, or which by their very nature tend to
injure one’s personal or professional reputation, even
without considering extrinsic facts or surrounding
circumstances, are considered defamatory per se.
Lemeshewsky, 464 So.2d at 975. When a plaintiff proves
publication of words that are defamatory per se, the
elements of falsity and malice (or fault) are presumed,
but may be rebutted by the defendant. Costello v.
Hardy, 2003-1146 (La. 1/21/2004) 864 So.2d 129. The
element of injury may also be presumed. Costello, p.
13, 864 So.2d at 140. When the words at issue are not
defamatory per se, a plaintiff must prove, in addition to
defamatory meaning and publication, the elements of
falsity, malice (or fault), and injury. Costello, p. 14, 864
So.2d at 140.
The plaintiff argues that the defendants’ allegations
in the RICO action are defamatory per se, and that
malice is to be inferred. This Court must first consider
whether the words were defamatory per se, permitting
an inference of malice. The meaning of “defamatory per
se” was set forth in the often quoted case of Madison v.
Bolton, 234 La. 997, 102 So.2d 433 (1958), wherein the
court said:
Words charged to be libelous have been
classified as those that are susceptible of
a defamatory meaning and those that are
indisputably defamatory on their face. In the
latter category they are actionable per se; they
impute to the person the commission of a crime
or subject him to public ridicule, ignominy
or disgrace, and are susceptible of but one
meaning. Words not actionable per se fall
short of those requirements, and are found in
numerous categories, among which are words
28a
that are actionable only in consequence of
extrinsic facts, in which case the surrounding
circumstances and conditions must be taken
into account to determine the matter, or
statements that contain language which
unjustifiably tends to injure the reputation of
a person, or reflect shame and disgrace upon
him. The intent and meaning of an alleged
defamatory statement must be gathered not
only from the words singled out as libelous, but
from the context as well, and the true meaning
must be ascertained from a consideration
of all parts of the statement as well as the
circumstances of its publication. The test is
the effect the article is fairly calculated to
produce, the impression it would naturally
engender, in the minds of the average persons
among whom it is intended to circulate.” Id., at
437,438 (footnotes omitted) (citations omitted).
Shylock, Inc. v. Covenant Broadcasting Corp. of
Loutistana, 352 So.2d 359, 382 (La.App. 4 Cir. 1977).
Defamatory words are, by definition, words which
tend to harm the reputation of another so as to lower
the person in the estimation of the community, to deter
others from associating or dealing with the person,
or otherwise expose a person to contempt or ridicule.
Costello v. Hardy, 2003-1146, p. 13 (La. 1/21/2004), 864
So.2d 129, 140. Words that convey an element of personal
disgrace, dishonesty, or disrepute, are defamatory. /d.
The question of whether a communication is capable
of a particular meaning and whether that meaning
is defamatory is ultimately a legal question for the
court. /d. The question is answered by determining
whether a listener could have reasonably understood
the communication, taken in context, to have been
intended in a defamatory sense. Jd. In Mitchell v.
29a
Truck Service, Inc., 286 So.2d 112, 116 (La.App. 4 Cir.
1973), this Court noted:
The intent and meaning of an alleged
defamatory statement must be gathered not
only from the words singled out as libelous, but
from the context as well, and the true meaning
must be ascertained from a_ consideration
of all parts of the statement as well as the
circumstances of its publication. The test is the
effect the article is fairly calculated to produce,
the impression it would naturally engender, in
the minds of the average person among whom
it is intended to circulate.
In the instant case, the plaintiff objects to the
defendants’ allegations of mail fraud asserted in the
RICO complaint and the defendants’ reconventional
demand. The defendants argue that the allegations
in the RICO complaint are protected by privilege and
that the allegations in the reconventional demand are
affirmative defenses. The federal court dismissed the
RICO action in its entirety and ordered defendants to
pay attorney’s fees. Such action clears Mr. Howard of
said violations, and thereby clears his name.
Certain statements are protected by privilege. A
person may enjoy a qualified or conditional privilege in
making a statement, if it is made (1) in good faith; (2)
on a subject in which the person communicating has
an interest or owes a duty; and (3) to a person having a
corresponding interest or duty. In order to establish the
element of good faith, it must be shown that the person
making the allegedly defamatory statements had
reasonable grounds for believing that the statements
were true and that he honestly believed the statements
were correct. Albarado v. Abadie, 97-478, p. 7 (La.App.
5 Cir. 11/12/97), 703 So.2d 736,741.
30a
While the allegations in the federal complaint were
found insufficient to qualify as violations under RICO,
they are not necessarily defamatory per se. Prevailing
on a claim for defamation requires the plaintiff to
prove every element of a claim for defamation. Plaintiff
has not proven the elements of falsity and malice, i.e.
reckless disregard for the truth. Reckless conduct
is not measured by the standard of a reasonably
prudent man, rather the proper inquiry is whether “the
defendant in fact entertained serious doubts as to the
truth of his publication. Davis v. Borskey, 92-2339,
p.7 (La.App. 1 Cir 8/22/94), 643 So.2d 179, 184. Thus,
plaintiffs assertions are insufficient to support a claim
for defamation. If one element of defamation is lacking,
the claim cannot prevail. 7’rentecosta v. Beck, 96-2388,
p. 10 (La. 10/21/97), 703 So.2d 552,559.
Malicious Prosecution
Actions for malicious prosecution have never been
favored, and hence, in order to sustain them, a clear
case must be established. Kelly v. West Cash & Carry
Bldg. Materials Store, 99-0102, p. 29 (La. App. 4 Cir.
10/20/99), 745 So.2d 743, 761. The law protects persons
who resort to the courts to redress wrongs when they act
in good faith upon reasonable grounds in commencing
such a proceeding. Id.
The Louisiana Supreme Court defined the
elements necessary to support a claim for malicious
prosecution which requires the plaintiff to prove (1)
{t]he commencement or continuance of an original
criminal or civil law judicial proceeding; (2) its legal
causation by the present defendant in the original
proceeding; (3) its bona fide termination in favor of the
present plaintiff; (4) the absence of probable cause for
such proceeding; (5) the presence of malice therein; and
(6) damage conforming to legal standards resulting to
3la
plaintiff. Robinson v. Goud«aux's, 307 So.2d 287, 289
(La. 1975); Darden v. Smith, 2003-1144, p. 11, (La.App.
3 Cir. 6/30/04), 879 So.2d at 398-99. All elements must
be present for him to prevail. Meliws, 2007-0189, p. 8,
980 So.2d at 173.
The fifth element requires malice. Without malice,
Mr. Howard’s claim cannot stand. Malice has been
defined by the Supreme Court in Miller v. East Baton
Rouge Parish Sheriffs Dept., 511 So.2d 446, 453 (La.
1987), as follows:
Malice is found when the defendant uses the
prosecution for the purpose of obtaining any
private advantage, for instance, as a means
to extort money, to collect a debt, to recover
property, to compel performance of a contract,
to “tie up the mouths” of witnesses in another
action, or aS an experiment to discover who
might have committed the crime. Malice may
be inferred from the lack of probable cause
or inferred from a finding that the defendant
acted in reckless disregard of the other person’s
rights.
In civil cases, probable cause is a standard of proof
employed in defense of malicious prosecution claims
to determine if a party was justified in filing criminal
charges or civil lawsuits. State v. One (1) 1991 Pontiac
Trans Sport Van, VIN #1IGMCU06D3MT208532, 98-64
(La. App. 5 Cir. 7/9/98), 716 So.2d 446.
A claim for malicious prosecution is subject to a
liberative prescriptive period of one year. La. C.C. art.
3492. The liberative prescriptive period for a malicious
prosecution claim does not begin to run until the
underlying prosecution is dismissed. Munay v. Town
of Mansura, 2006-355, p. 7 (La.App. 3 Cir. 9/27/2006),
940 So.2d 832, 838 (Citing Manuel v. Deshotels, 160
32a
La. 652, 107 So. 478 (1926)). See Ortiz v. Baniffe, 523
So.2d 896, 898 (La.App. 4 Cir. 1988). Damage awards
in malicious prosecution suits should be compensatory
only. Jones v. Soileau, 448 So.2d 1268, 1271 (La. 1984).
Thus, plaintiff cannot commence a claim for
malicious prosecution on the reconventional demand
prior to the reconventional demand being dismissed,
and cannot sustain this claim for malicious prosecution
of the RICO action because he presented no evidence to
prove the element of malice.
Abuse of Process
Abuse of process is a cause of action originating from
the common law and recognized in our jurisprudence as
a compensable tort under La. C.C. Art. 2315. Mini-Togs
Inc. v. Young, 354 So.2d 1389 (La.App. 2 Cir. 1978).
The two essential elements of abuse of process are an
ulterior purpose and a willful act in the use of the
process not proper in regular conduct of the proceeding.
Simon v. Penet, 619 So.2d 155 (La.App. 3 Cir. 1993).
Simply stated, abuse of process mandates that the
plaintiff prove that the defendant had an _ ulterior
motive and an irregularity in the process itself. Alden
v. Lorning, 2004-0724, p. 5 (La.App. 4 Cir. 5/4/2005),
904 So.2d 24, 28. When the irregular use of process
is found, an ulterior motive is presumed. Jd. Using
the legal process for an improper reason is the crux of
finding an abuse of process. Id. Melius, 2007-0189, p.
7, 980 So.2d at 173.
Under this cause of action, plaintiffs must allege
irregularity in the process itself. Mini-Togs, Inc., 354
So.2d at 1391. “Regular use of process cannot constitute
abuse, even though the user was actuated by a wrongful
motive, purpose, or intent, or by malice.” Mini-Togs,
Inc., 354 So.2d at 1390. Absent a showing of abuse
through an illegal, improper or irregular use of process,
33a
a plaintiff will have failed to state a cause of action.
Waguespack, Seago and Carmichael (A PLC) v. Lincoln,
99-2016 (La. App. 1 Cir. 9/22/2000), 768 So.2d 287.
In order to prevail on the claim of abuse of process,
plaintiff must show that defendants misused a process
already legally issued and intended to use that process
to obtain a result not proper under the law. Goldstein
uv. Serio, 496 So.2d 412 (La.App. 4 Cir. 1986). Plaintiff
has not shown an irregularity in the proceeding. As a
result, plaintiff has failed to allege a cause of action for
abuse of process.
Conspiracy
Louisiana recognizes no tort of conspiracy, per se.
Rather, the actionable element in La. C.C. art. 2324—
providing that “[h]e who conspires with another person
to commit an intentional or willful act is answerable in
solido, with that person, for the damage caused by such
act,’—is the underlying tort. Ross v. Conoco, Inc., 2002-
0299, pp. 7-8 (La. 10/15/2002), 828 So.2d 546, 552; see
also Thomas v. North 40 Land Development, Inc., 2004-
0610, p. 23 (La.App. 4 Cir. 1126/2005), 894 So.2d 1160,
1174. The actionable element of a conspiracy claim is
not the conspiracy itself; rather, it is the tort that the
conspirators agree to perpetrate and actually commit
in whole or in part. Conspirators can tacitly agree to
enter into a conspiracy to cause injury or damage for
purposes of La. C.C. art. 2324. Miller v. Keating, 339
So.2d 40, 43 (La.App. 3 Cir. 1976).
To succeed on a conspiracy claim, a plaintiff must
prove an unlawful act and assistance or encouragement
that amounts to a conspiracy, and such assistance or
encouragement must be of such quality and character
that a jury could infer from it an underlying agreement
and act that is the essence of the conspiracy. Thomas,
2004-0610, p. 22, 894 So.2d 1160, 1174.
34a
The plaintiff has brought a claim of conspiracy
against the father of defendant St. Germain for
allegedly conspiring to injure plaintiff by helping his
daughter pay legal fees and expenses. Such behavior
is not conspiracy. The plaintiff has not demonstrated
that David EK. Simmons committed an unlawful act, or
that he conspired with the co-defendants to commit an
unlawful act. Therefore, the district court erred in not
dismissing the plaintiff's claim for conspiracy
Il. MOTION TO DISQUALIFY ATTORNEY
The third issue presented for review is the order
granting the plaintiffs motion to disqualify attorney
Mark Andrews from representing all co-defendants,
including his own solo practice law firm, based upon a
possible conflict of interest
In assessing whether a conflict of interest exists,
a court must be convinced that the conflict is actual,
not merely hypothetical or speculative. State v. Lobato,
621 So.2d 103 (La.App. 2 Cir. 1993). An actual conflict
of interest is established when the defendant proves,
through specific instances in the record, that his attorney
was placed in a situation inherently conducive to divided
loyalties. State v. Tart, 93-0772 (La. 2002/09/96), 672
So.2d 116, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136
L.Ed.2d 227 (1996). The mere possibility of divided
loyalties is insufficient proof of actual conflict. Lobato,
621 So.2d 103 (La.App. 2 Cir. 1993).
Attorney/defendant Mark Andrews argues that
the district court improperly disqualified him from
representing his own solo-practice law firm, also made
a co-defendant, as plaintiff did not offer a motion to the
court to do so. Mr. Andrews is correct. The district
court erred when it disqualified Mr. Andrews from
representing his own solo-practice law firm because it
creates no conflict. Such representation would be the
ime pbecause Ni luty nun
duty to hi olo-practi (
Ihe plaintiff argu tnat lark rew
properly disqualified } ittorney tor the defendant
under the La. Rules of Prof ional Conduct, Rule
ion ts adverse to the
1.7 because his own representat
representation of his chents. The plaintiff asserts th
Mark Andrews either acted alone
chents in making the allegations again
he plaintiff also alleges that Mark Andrews may hav
intimate relationship with one |
or in concert with hi}
t the plaintill
possibly been in a1
the co-defendant Plaintiff argues that a conflict
exists under Rul // because M) \Yndrev Will
both a witness and a party in this case
Ihe defendants filed a peremptory excep n
irgued that the plaintiff has no standing t asse!
i conflict of interest or potential conflicl amon
codefendants and their attorney, Mark Andrew Th
aLLorney 1S als
lcfendants point out that although thei
none of the co-defendants have a
co-defendants maintain th
o-delendant orte
i conflict of interest. The
Mark Andrews 1s prevented from testifying again
th co-defendant interest Dy a ntinuinp bul
f confidentiality and loyalty hey assert that the
ittorney-testimony rule only operat to restrict al
attorney from bi Ingvg an advocate at tria nd dor
perate to disqualify an attorn
Combining the roles of advocate and witne CA
, conti
posing party and can involv
prejudice the
The OVPOsln
t between the lawyer and chent
the combination ¢
ft intere
party has proper objection where
roles may prejudice that partys rights in the litigation
farrington v. Law I'irm of Sessions, 'ishman
plaintill has not all
» (La. App. 4 Cir. 5/8/96), 674 So.2d 448, 450. The
37a
Thus, we find that the district court erred in
disqualifying Mark Andrews from representing the
defendants and his solo law firm in this matter.
IV. EX PARTE ORDER FOR SECURITY COSTS
The final issue presented for review pertains to
the issuance of an ex parte order for defendants to pay
security costs of $6,500, which defendants argue is
improper because only plaintiffs can be ordered to pay
security costs, and never the defendants.
Defendants are correct. This order is clearly
contrary to Louisiana law as La. R.S. 13: 1215 requires
the plaintiff or party prosecuting the cause to give bond
or other security, not the defendant. In addition, this
Court has held that the defendant can not be required
to post bond for costs, either in the capacity of defendant
or in the capacity of plaintiff in reconvention. Herzog’s
Automotive Parts, Inc. v. Baronne Auto Supply, Inc.,
94-1054, p. 1 (La.App. 4 Cir. 6/30/94), 639 So.2d 1223,
1224; Wabnig v. Royal Crystal Art Co., Inc., 301 So.2d
366 (La.App. 4 Cir. 1974). In Wabnig, this Court
stated that the fact that the defendant is a plaintiff in
reconvention cannot serve as a basis for requiring the
defendant to post bond, and held that a separate suit
filed by the defendant that was consolidated with the
original proceeding did not provide a basis for requiring
the defendant to post bond in the original case. Wabnig,
301 So.2d at 367.
The plaintiff first argues that this issue is untimely,
unauthorized, and improperly filed because the thirty
day delay has expired since the order was issued on
August 25, 2009, and the defendants did not request
a return date, and then argues that the issue is moot
because the district court dismissed all claims filed
by the defendants. The record is replete with motions
38a
and oppositions filed by both parties, so it is unclear
whether the issue of the ex parte order for costs was
intended to be dismissed or forgotten. The defendants
timely filed a counter motion to strike the ex parte order
for the defendants to pay security costs on August 28,
2009, which was apparently overlooked for argument at
the hearing on September 4, 2009. Thus, it cannot be
considered for review herein.
DECREE
Hence, this writ application is granted and we order
that the corresponding district court judgments are
reversed with respect to:
1. The judgment granting plaintiffs exception of res
judicata;
2. The judgment denying defendants’ special motions
to strike;
3. The judgment disqualifying Mark Andrews from
representing the defendants and his solo law practice:
4. The exception of prescription as it relates to:
a) The co-defendants’ claims for breach of contract
and
b) Lesley Simmons St. Germain’s claim for legal
malpractice.
All other claims raised in this writ application are
denied.
New Orleans, Louisiana this 26th day of January 2010
s/ JUDGE CHARLES R. JONES
s/ JUDGE DENNIS R. BAGNERIS, SR.
s/ JUDGE EDWIN A. LOMBARD
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APPENDIX F, RELEVANT STATUTES
28 USC §1367. Supplemental jurisdiction
al
(d) The period of limitations for any claim asserted
under subsection (a), and for any other claim in the same
action that is voluntarily dismissed at the same time as
or after the dismissal of the claim under subsection (a),
shall be tolled while the claim is pending and for a period
of 30 days after it is dismissed unless State law provides
for a longer tolling period.
[...]
28 USC §1441. Actions removable generally
(a) Except as otherwise expressly provided by Act
of Congress, any civil action brought in a State court
of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or
the defendants, to the district court of the United States
for the district and division embracing the place where
such action 1s pending. [...]
28 USC §1442. Federal officers or agencies sued or
prosecuted
(a) A civil action or criminal prosecution
commenced in a State court against any of the following
may be removed by them to the district court of the
United States for the district and division embracing the
place wherein it is pending:
(1) The United States or any agency thereof or
any officer (or any person acting under that officer) of
the United States or of any agency thereof, sued in an
official or individual capacity for any act under color of
such office or on account of any right, title or authority
claimed under any Act of Congress for the apprehension
or punishment of criminals or the collection of the
revenue.
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(2) A property holder whose title is derived from
any such officer, where such action or prosecution affects
the validity of any law of the United States.
(3) Any officer of the courts of the United States,
for any act under color of office or in the performance of
his duties;
(4) Any officer of either House of Congress, for any
act in the discharge of his official duty under an order of
such House.
[...]
28 USC §1447. Procedure after removal generally
[...]
(c) A motion to remand the case on the basis of
any defect other than lack of subject matter jurisdiction
must be made within 30 days after the filing of the notice
of removal under section 1446 (a). If at any time before
final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.
An order remanding the case may require payment of
just costs and any actual expenses, including attorney
fees, incurred as a result of the removal. A certified copy
of the order of remand shall be mailed by the clerk to the
clerk of the State court. The State court may thereupon
proceed with such case.
(d) An order remanding a case to the State court
from which it was removed is not reviewable on appeal
or otherwise, except that an order remanding a case to
the State court from which it was removed pursuant to
section 1443 of this title shall be reviewable by appeal or
otherwise.
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