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Suarez v. DeRosier

Court of Appeals of Louisiana, Third Circuit

March 7, 2018



          Glen R. Petersen Hymel Davis & Petersen, L.L.C. COUNSEL FOR: Defendant/Appellee - John DeRosier, Individually and in his Capacity as the Calcasieu Parish District Attorney.

          Christian D. Chesson Joseph Lee Manuel COUNSEL FOR: Plaintiff/Appellant - Shannon James Suarez.

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Elizabeth A. Pickett, Judges.


         Shannon James Suarez brought suit against District Attorney John DeRosier and Investigator Bill Pousson, alleging malicious prosecution and misconduct in investigative and administrative duties in the District Attorney's Office. Defendants were granted summary judgment on the grounds of absolute immunity. Mr. Suarez now appeals, asserting that the trial court erred in granting the motion because he was not allowed to adequate discovery. We agree. We, therefore, reverse the judgment of the trial court and remand to allow Mr. Suarez the opportunity for adequate discovery. We express no opinion regarding the merits of Mr. Suarez's claims.



         This court must consider whether the trial court erred in granting the motion for summary judgment for a malicious prosecution claim when the plaintiff was denied adequate discovery for seven months. This court must also consider whether the trial court erred in not deeming the plaintiff's request for admission of fact admitted when defendants failed to answer within the specified time period under La.Code Civ.P. art. 1467(A).



         On June 30, 2009, Mr. Suarez allegedly threw a box of Twinkies at Jerry W. "J.W." Peloquin II. Mr. Peloquin alleged that Mr. Suarez had been stalking him for several months and had threatened and battered him in August and September 2009. Lori Guidry Smith also alleged that Mr. Suarez stalked her in August 2009. Mr. Suarez was arrested by local authorities, and, on March 29, 2011, the Calcasieu Parish District Attorney's Office filed formal charges of stalking, a violation of La.R.S. 14:40.2(A). The District Attorney amended the Bill of Information on May 23, 2013, adding simple battery, a violation of La.R.S. 14:35, for the alleged battery on June 30, 2009.

         Mr. Pousson went to Mr. Suarez's place of employment to talk to him about the charges. Mr. Suarez alleges Mr. Pousson offered to make his problems "go away" and encouraged him to plead guilty and spoke to him even though he knew Mr. Suarez was represented by counsel.

         Mr. Suarez filed a motion to quash, asserting the battery charge had prescribed. Mr. Suarez appealed the trial court's adverse decision and discovered that a subsequent version of the Bill of Information had been stamped "Sex Offender." This court granted the writ and dismissed the charges. The Louisiana Supreme Court denied the District Attorney's writ application.

         Mr. Suarez filed suit against Mr. DeRosier on September 24, 2015, alleging malicious prosecution and misconduct in the investigative and administrative duties of the District Attorney's Office. Mr. Suarez alleges that the "Sex Offender" stamp on the Bill of Information was defamatory, and subjected him to ridicule, humiliation, and condemnation because it could be accessed through public record. Mr. Suarez also claimed that the labeling of "Sex Offender" caused the intentional infliction of emotional distress. Plaintiff's counsel sent Interrogatories, Request for Production of Documents and Request for Admissions on October 6, 2015, which were delivered by certified mail with signature confirmation on October 9, 2015. Defense counsel requested an informal extension to file responsive pleadings, and both parties agreed to the extension until November 13, 2015.

         On November 19, 2015, Defendants filed a motion for summary judgment with a supporting memorandum, asserting absolute immunity. No responsive pleadings were filed. Identical affidavits of Mr. DeRosier and District Attorney's Office employees were entered into the record. Defendants never answered Plaintiff's petition nor did Defendants answer requests for discovery. A motion to continue the summary judgment hearing was filed on February 18, 2016, and the hearing was continued until April 20, 2016. The motion was granted on the understanding that Defense counsel would comply with discovery requests.

         Mr. Suarez filed an Amended and Supplemental Petition on April 12, 2016, adding Mr. Pousson as a Defendant. At the April 20, 2016 hearing, Defense counsel maintained he had not received discovery requests. However, the Interrogatories and Request for Production of Documents and Request for Admissions were sent by certified mail and signed for on October 9, 2015. The hearing was continued until June 1, 2016 to allow for Defense counsel to review the Amended and Supplemental Petition and to respond to propounded Interrogatories and Request for Production of Documents and Request for Admissions. Due to a scheduling conflict, the hearing ultimately was held on June 3, 2016.

         On April 25, 2016, Defense counsel's paralegal requested another informal extension until May 1, 2016 to answer the First Amended and Supplemental Petition for Damages. In exchange for the extension, Plaintiff's counsel requested dates be set aside in May to take depositions prior to the hearing scheduled for June. Defense counsel's paralegal responded via email asking who Plaintiff's counsel wished to depose. Plaintiff's counsel responded that he wished to depose Mr. Pousson and Mr. DeRosier, and possibly others based on documents from the anticipated discovery. After Plaintiff's counsel told the paralegal to contact his office manager to set the depositions, the paralegal did not further respond to Plaintiff's counsel's emails. The office manager called the paralegal and the paralegal only provided June 15, 2016 as a possible deposition date, notably not in May as Plaintiff's counsel had requested to take depositions before the summary judgment hearing. Later, the paralegal called the office manager to reschedule the depositions to June 20, 2016. However, Mr. Pousson became unavailable on that date. The parties could not get the depositions rescheduled because Defense counsel refused the dates unless Mr. DeRosier and Mr. Pousson were deposed on the same date because he did not want to drive to Lake Charles twice.

         Defendants filed a memorandum to support the motion for summary judgment on May 2, 2016. During this time, Plaintiff tried to propound discovery and Defendant continued not answering any discovery. As of May 27, 2016, no depositions were scheduled, and no discovery was received. Plaintiff's counsel filed a motion to continue because Memorial Day Weekend was on May 30, 2016, and any ...

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