United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE.
the Court are a Motion in Limine (Doc. 184) filed by CSHV
Fairway View I, CSHV Fairway View II, and Campus Advantage,
Inc. (collectively "Fairway View"), and a Motion to
Amend Pretrial Order (Doc. 201) filed by Cedar Lodge
Plantation, LLC (hereinafter "Cedar Lodge"). The
parties filed responses (Docs. 191, 212), replies (Docs. 208,
221), and a sur-reply (Doc. 215) where applicable. Oral
argument on the motions was held on March 2, 2017.
(See Docs. 257, 260). The Court has jurisdiction
pursuant to 28 U.S.C. § 1332.
Lodge initiated this action against Fairway View on January
29, 2013, in the Nineteenth Judicial District Court, Parish
of East Baton Rouge, State of Louisiana, alleging that
Fairway View, among other defendants, was "responsible
for the continuous, unpermitted discharge of harmful or
hazardous substances, pollutants and/or contaminants,
including but not limited to raw sewage onto Plaintiffs'
property." (See Doc. 1; Doc. 50 at ¶
9). Cedar Lodge sought damages resulting from Fairway
View's allegedly negligent actions, and specifically
sought remediation of the property and damages resulting from
lost business opportunity, loss of use and enjoyment, and
lost business income. (Doc. 50 at ¶ 25).
the course of this litigation, the parties submitted several
written pretrial motions concerning evidence and causes of
action. Each party's motions are addressed in turn below.
MOTION IN LIMINE TO LIMIT CLAIMS IN THE JOINT
motion, Fairway View requests that the Court limit the claims
Cedar Lodge may assert at trial to those included in its
Second Amended Complaint, which Fairway View argues pleads a
claim solely in negligence. (See Doc. 50; Doc. 184-1 at pp. 3
- 9). Fairway View avers that Cedar Lodge's attempt to
add new causes of action, including claims for trespass,
nuisance, strict liability, and civil fruits, so late in the
litigation should not be permitted because Fairway View was
given no notice of the new claims before the deadline for
dispositive motions and discovery passed. (Doc. 184-1 at p.
3). Further, Fairway View asserts that because Cedar Lodge
only specified two forms of damages-remediation of the pond
and a lost business opportunity-in response to written
discovery requests and in its corporate deposition, Cedar
Lodge should be precluded from now seeking new forms of
recovery, to wit, (1) the payment of civil fruits and unjust
enrichment, and (2) a permanent injunction in any form. (Doc.
184-1 at p. 4). Because Fairway View has not had an
opportunity to obtain discovery regarding the newly pleaded
causes of action and damages sought, Fairway View argues that
it would be substantially prejudiced if Cedar Lodge were
allowed to pursue those claims at trial. (Doc. 184-1 at p.
response, Cedar Lodge first argues that the instant motion is
an attempt by Fairway View to file a dispositive motion after
the deadline for filing such motions has
passed.(Doc. 191 at p. 2). Cedar Lodge further
counters that Fairway View would suffer no real surprise or
prejudice by the augmentation of its claims because (1)
Fairway View received notice of Cedar Lodge's intent to
pursue additional claims two months before the Pretrial Order
was due and six months before trial in this matter was
originally scheduled to begin, and thus the alleged
"change" in claims was not made on the eve of
trial; and (2) the same facts at issue in all the claims have
been litigated for three years and the claims are all based
on the same witnesses who will already be testifying. (Doc.
191 at p. 13).
outset, the Court agrees that the requests in Fairway
View's motion present assertions and arguments that would
normally be addressed in a dispositive motion. Although Fairway
View's motion has a dispositive motion tint, the
assertions presented therein were previously unavailable to
Fairway View, as a review of the pleadings reveals-and as
Fairway View has asserted-that Cedar Lodge continuously
asserted that its claims derived from the allegedly
negligent (and not tortious) actions of
Fairway View. In any event, the Court will consider Fairway
View's motion to be a preemptive motion to amend the
Joint Pretrial Order (Doc. 188) to preclude the assertion of
additional claims that Fairway View reasonably predicted
might be included-and that ultimately were
Additional Causes of Action
Federal Rules of Civil Procedure provide that "[t]he
court may modify the [pretrial] order issued after a final
pretrial conference only to prevent manifest injustice."
Fed.R.Civ.P. 16(e). Additionally, the United States Court of
Appeals for the Fifth Circuit has held that district courts
have discretion in such matters and can allow amendment of
the pretrial order "where no surprise or prejudice to
the opposing party results." Quick Technologies,
Inc. v. Sage Group PLC, 313 F.3d 338, 346 (5th Cir.
2002). Nevertheless, as a general rule, "a plaintiff
should not be prevented from pursuing a valid claim just
because she did not set forth in the complaint a theory on
which she could recover, 'provided always that a late
shift in the thrust of the case will not prejudice the other
party in maintaining his defense upon the merits.'"
Wright & Miller, 5 Fed. Prac. & Proc. Civ. §
1219 (3d ed.).
this standard in mind, and after reviewing the pleadings and
the parties' arguments, the Court agrees with Fairway
View's assertions that the inclusion of claims for
trespass, strict liability, and civil fruits would result in
prejudice and, because of the stage of litigation, would
necessarily delay the proceedings in this
matter. That is, although Cedar Lodge maintains
that evidence in support of other non-negligent, tort-based
claims-including trespass, strict liability, and civil
fruits-are present in the record and derive from facts and
arguments that have been litigated for several years, such
representations are not sufficient to negate allegations of
potential prejudice offered by Fairway View, as they fail to
acknowledge that each claim has additional elements that
themselves warrant additional discovery. Additionally,
because the Court will not reopen discovery, this case is in
a procedural posture such that the addition of these claims
would substantially prejudice Fairway View.
a claim for civil trespass, generally a defendant may not be
held liable for trespass "in the absence of evidence
that the trespass resulted from some intentional act
taken by the defendant." Terre Aux Boeufs Land Co,
Inc. v. J.R. Gray Barge Co., 2000-2754, *13-14 (La.App.
4 Cir. 11/14/01); 803 So.2d 86, at 96. In its briefing
and at oral argument, Fairway View maintained its inability
to conduct targeted discovery on whether any alleged
discharges were intentional. (See Doc. 184-1 at p. 6).
Additionally, and as Fairway View correctly notes, Louisiana
law recognizes traditional strict liability-that is,
liability without a determination of fault-in a limited
number of circumstances, namely, for pile driving and the use
of explosives. Thus, to the extent Cedar Lodge seeks to
recover under a ...