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Cedar Lodge Plantation, LLC, v. CSHV Fairway View I, LLC

United States District Court, M.D. Louisiana

May 31, 2017

CEDAR LODGE PLANTATION, LLC,
v.
CSHV FAIRWAY VIEW I, LLC, ET AL.

          RULING AND ORDER

          BRIAN A. JACKSON, CHIEF JUDGE.

         Before 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.

         I. BACKGROUND

         Cedar 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."[1] (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).

         During 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.

         II. DISCUSSION

         A. MOTION IN LIMINE TO LIMIT CLAIMS IN THE JOINT PRETRIAL ORDER

         In its 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.[2] (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. 4).

         In 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.[3](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).

         At the 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.[4] 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 included-therein.[5]

         1. Additional Causes of Action

         The 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.).

         With 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.[6] 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.[7]

         Regarding 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.[8] 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 ...


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