STANLEY R. PALOWSKY, III, INDIVIDUALLY, AND ON BEHALF OF ALTERNATIVE ENVIRONMENTAL SOLUTIONS, INC.
ALLYSON CAMPBELL, ET AL.
Appeal from the Fourth Judicial District Court In and for the
Parish of Ouachita State of Louisiana No. 15-2179 Honorable
Jerome J. Barbera, III, Ad Hoc, Judge Presiding
R. Ward, Jr. Covington, Louisiana and Sedric E. Banks Monroe,
Louisiana Counsel for Plaintiff/Appellant Stanley R.
E. Crawford Monroe, Louisiana and Jeff Landry Attorney
General Baton Rouge, Louisiana Lawrence W. Pettiette, Jr.
Special Assistant Attorney General Shreveport, Louisiana
Counsel for Defendant/ Appellee Allyson Campbell
Guice Justin N. Myers Monroe Louisiana Counsel for
Defendants/Appellees Judge H. Stephens Winters, Judge Carl V.
Sharp, Judge Benjamin Jones, Judge J. Wilson Rambo and Judge
Frederic C. Amman
BEFORE: WHIPPLE, C.J., GUIDRY, PETTIGREW, McDONALD,
McCLENDON, WELCH, HIGGINBOTHAM, CRAIN, THERIOT, HOLDRIDGE,
CHUTZ, AND PENZATO, JJ.
plaintiff appeals a trial court's judgment striking
forty-six paragraphs and three subparagraphs from his
eighty-eight paragraph petition for damages. He also appeals
the two trial court's judgments that granted the
defendants' peremptory exceptions raising the objection
of no cause of action, based on absolute immunity. For the
reasons that follow, we reverse in part and affirm in part
the judgment regarding the motion to strike. We affirm the
judgment that found no cause of action against the defendant
judges and reverse the judgment that found no cause of action
against the defendant law clerk.
AND PROCEDURAL HISTORY
22, 2015, the plaintiff, Stanley R. Palowsky, III,
individually and on behalf of Alternative Environmental
Solutions, Inc., filed a Petition for Damages against the
defendant, Allyson Campbell, a law clerk for the Fourth
Judicial District Court (Fourth JDC), asserting that Ms.
Campbell maliciously and intentionally harmed Mr. Palowsky
"when she spoliated, concealed, removed, destroyed,
shredded, withheld, and/or improperly 'handled' court
documents" in the matter entitled Palowsky v.
Cork, Docket No. 13-2059, of the Fourth JDC. Thereafter,
on July 31, 2015, Mr. Palowsky filed a First Supplemental,
Amended, and Restated Petition for Damages, adding as
defendants, Chief Judge H. Stephens Winters, Judge Carl V.
Sharp, Judge J. Wilson Rambo, and Judge Frederic C. Amman,
current Fourth JDC judges, and retired Judge Benjamin Jones,
the current Fourth JDC administrator (the Judges),
asserting that they aided and abetted Ms. Campbell "by
allowing her free rein to do as she pleased and then
conspiring to conceal [Ms.] Campbell's acts."
Subsequently, all the judges of the Fourth JDC recused
themselves from the matter, and the Louisiana Supreme Court
appointed retired Judge Jerome J. Barbera, III, as judge ad
hoc to preside over the case.
response to Mr. Palowsky's pleadings, Ms. Campbell and
the Judges each filed a motion to strike specific paragraphs
of Mr. Palowsky's petition and various exceptions,
including the peremptory exception raising the objection of
no cause of action based on judicial immunity. On November
5, 2015, the trial court held a hearing on the motions to
strike and the exceptions of no cause of action. The trial
court first addressed the motions to strike and ordered that
forty-six paragraphs and three subparagraphs of Mr.
Palowsky's eighty-eight paragraph amended petition be
stricken, finding them to be immaterial. After granting the
motions to strike, the trial court addressed the exceptions
of no cause of action based on the remaining paragraphs of
Mr. Palowsky's amended petition. The trial court
determined that the Judges and Ms. Campbell were entitled to
absolute immunity for their alleged actions and granted the
December 11, 2015, the trial court signed a judgment
regarding the motions to strike filed by Ms. Campbell and by
the Judges. On that same date, the trial court also signed a
judgment granting the exception of no cause of action in
favor of Ms. Campbell and a judgment granting the exception
of no cause of action in favor of the Judges, dismissing Mr.
Palowsky's case against them with prejudice.
Palowsky filed an appeal of the three judgments with the
Court of Appeal, Second Circuit, and seven of the judges of
that court recused themselves. Therefore, on September 7,
2016, the Louisiana Supreme Court ordered the transfer of the
appeal of the matter to the Court of Appeal, First Circuit.
appeal, Mr. Palowsky has assigned the following as error:
A. The trial court erred by finding that forty-six paragraphs
and three subparagraphs in Mr. Palowsky's amended
petition were immaterial and granting the defendants'
motions to strike same.
B. The trial court erred by finding that the Judges had
absolute immunity from liability for their actions and
thereby granting their exception of no cause of action.
C. The trial court erred by finding that Ms. Campbell had
absolute immunity from liability for her actions and thereby
granting her exception of no cause of action.
D. The trial court erred in refusing to give Mr. Palowsky the
opportunity to amend his petition to state a cause of action.
MOTIONS TO STRIKE
Code of Civil Procedure Article 964 provides:
The court on motion of a party or on its own motion may at
any time and after a hearing order stricken from any pleading
any insufficient demand or defense or any redundant,
immaterial, impertinent, or scandalous matter.
granting of a motion to strike pursuant to Louisiana Code of
Civil Procedure article 964 rests in the sound discretion of
the trial court and is reviewed under the abuse of discretion
standard. Pitre v. Opelousas Gen. Hosp., 530 So.2d
1151, 1162 (La. 1988). See also Detillier v.
Borne, 15-129 (La.App. 5 Cir. 9/23/15), 176 So.3d 669,
671. Motions to strike are viewed with disfavor and are
infrequently granted. They are disfavored because striking a
portion of a pleading is a drastic remedy, and because they
are often sought by the movant simply as a dilatory tactic.
However, a motion to strike is proper if it can be shown that
the allegations being challenged are so unrelated to a
plaintiff's claims as to be unworthy of any consideration
and that their presence in the pleading would be prejudicial
to the moving party. Carr v. Abel, 10- 835 (La.App.
5 Cir. 3/29/11), 64 So.3d 292, 296, writ denied,
11-0860 (La. 6/3/11), 63 So.3d 1016. See also
Smith v. Gautreau, 348 So.2d 720, 722 (La.App. 1
Cir. 1977). A motion to strike is a means of clearing up the
pleadings, not a means of eliminating causes of action or
substantive allegations. Hicks v. Steve R. Reich,
Inc., 38, 424 (La.App. 2 Or. 5/12/04), 873 So.2d 849,
852; Hazelwood Farm, Inc. v. Liberty Oil and Gas
Corp., 01-0345 (La.App. 3 Cir. 6/20/01), 790 So.2d 93,
the source of Article 964 is found in Rule 12(f) of the
Federal Rules of Civil Procedure, we look to federal
jurisprudence to assist us in analyzing Article
964. Smith, 348 So.2d at 722. The
terms "redundant, immaterial, impertinent, or scandalous
matter" have been defined in at least one federal case,
Marceaux v. Lafayette Consol. Government, 6:12-01532
(W.D. La. 10/18/12) (unpublished), wherein the court stated:
Redundant matter consists of allegations that constitute a
needless repetition of other averments in the pleading.
Immaterial matter is that which has no essential or important
relationship to the claim for relief or the defenses being
pleaded. Immateriality is established by showing that the
challenged allegations "can have no possible bearing
upon the subject matter of the litigation." Impertinent
matter consists of statements that do not pertain, and are
not necessary, to the issues in question; while scandalous
matter is that which improperly casts a derogatory light on
someone, most typically on a party to the action. "The
granting of a motion to strike scandalous matter is aimed, in
part, at avoiding prejudice to a party by preventing a jury
from seeing the offensive matter or giving the allegations
any other unnecessary notoriety inasmuch as, once filed,
pleadings generally are public documents and become generally
Id. (footnotes with citations omitted); see
also Bayou Fleet Partnership, LLC v. St. Charles
Parish, 10-1557 (E.D. La. 7/8/11) (unpublished).
matter, Mr. Palowsky alleged that he is the fifty-percent
shareholder and director of Alternative Environmental
Solutions, Inc. (AESI). Mr. Palowsky also asserted that he
filed suit against W. Brandon Cork, the other fifty-percent
shareholder of AESI, for damages Mr. Palowsky suffered as a
result of Mr. Cork's theft, fraud, racketeering, and
breach of fiduciary duty.
original petition against only Ms. Campbell, Mr. Palowsky
alleged that Ms. Campbell acted outside the course and scope
of her employment to maliciously and intentionally harm Mr.
Palowsky by allegedly destroying or withholding certain court
filings. Mr. Palowsky's First Supplemental, Amended, and
Restated Petition for Damages again stated that Ms. Campbell
was acting outside the course and scope of her employment
duties and added the Judges as defendants for allegedly
"aiding and abetting [Ms.] Campbell by allowing her free
rein to do as she pleased and then conspiring to conceal