United States District Court, E.D. Louisiana
ALGERNON M. PITRE
MICHAEL ELLIOTT EPPS AND THOMAS COBB
ORDER AND REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE
the Court is a Motion to Dismiss (Rec. Doc.
15) filed by Plaintiff/Counter-Defendant, Algernon
Pitre (“Plaintiff”), an opposition thereto (Rec.
Doc. 17) filed by Defendant/Counter-Plaintiff, Michael Epps
(“Defendant”), and Plaintiff's reply (Rec.
Doc. 22). Having considered the motion and legal memoranda,
the record, and the applicable law, the Court finds that the
motion should be DENIED.
AND PROCEDURAL HISTORY
litigation arises from an altercation between Plaintiff and
Defendant that occurred at Harrah's Casino in New
Orleans, Louisiana on February 18, 2017. (Rec. Doc. 1).
Plaintiff alleges that Defendant punched him three times with
a closed fist after Plaintiff approached Defendant to have
“a brief, casual conversation.” (Rec. Doc. 1 at
2). Plaintiff states that Defendant's bodyguard, Cobb,
then “rushed in and repeatedly punched [Plaintiff]
multiple times leaving him dazed and injured.” (Rec.
Doc. 1 at 2). Defendant and Cobb were arrested after leaving
the scene, and Defendant pleaded no contest to battery under
Section 54-96 of the New Orleans Code of Ordinances on August
24, 2017. (Rec. Doc. 1 at 2). Plaintiff alleges that he
“did nothing to provoke or cause [Defendant] and Cobb
to act in such an excessive and violent manner.” (Rec.
Doc. 1 at 2). Plaintiff filed suit against Defendant and Cobb
in this Court on February 14, 2018. (Rec. Doc. 1).
answer, Defendant denies the allegations in Plaintiff's
complaint and asserts a counterclaim against Plaintiff
pursuant to Rule 13 of the Federal Rules of Civil Procedure.
(Rec. Doc. 4). Defendant alleges that on February 18, 2017,
Plaintiff “physically accosted [Defendant] by reaching
out and making unwanted physical contact with him” at
Harrah's Casino. (Rec. Doc. 4 at 11). Defendant asserts
that he removed Plaintiff's hand from his person, but
Plaintiff persisted and exchanged words with Defendant
“while simultaneously stepping into [Defendant] such
that their torsos touched.” (Rec. Doc. 4 at 11). This
conduct led Defendant to believe that “escalating
physical force from [Plaintiff] was imminent and the use of
force was reasonable and apparently necessary to prevent the
continuing and escalating assault and battery against
[Defendant's] person.” (Rec. Doc. 4 at 11).
Accordingly, Defendant argues that Louisiana Revised Statute
14:19 grants him immunity from civil liability. (Rec. Doc. 4
at 11). Defendant seeks to recover from Plaintiff all
statutorily-authorized damages. (Rec. Doc. 4 at 11-12).
argues that Defendant's counterclaim should be dismissed
under Rule 12(b)(6) on two grounds. (Rec. Doc. 15). First,
Plaintiff asserts that Defendant's plea of nolo
contendere to the charge of battery in New Orleans Municipal
Court is an admission of guilt that precludes Defendant from
maintaining an action against Plaintiff in the instant
action. (Rec. Doc. 15-1 at 1, 3). Specifically, Plaintiff
asks the Court to apply the doctrine of judicial estoppel to
prevent Defendant from maintaining that Plaintiff committed
assault and battery upon Defendant and that Defendant was
merely acting in self-defense. (Rec. Doc. 15-1 at 4).
Plaintiff alleges that permitting Defendant to proceed with a
counterclaim that stands in “stark contrast” to
the nolo contendere claim would undermine and manipulate the
judicial process. (Rec. Doc. 15-1 at 5).
Plaintiff argues that Defendant cannot rely on Louisiana
Revised Statute 14:19 to support his “vicious
attack” on Plaintiff because Defendant's use of
force was not reasonable and apparently necessary to prevent
a forcible offense against Defendant's person. (Rec. Doc.
15-1 at 1). Plaintiff alleges that because Defendant was the
aggressor and makes no assertion that he withdrew from the
conflict, Louisiana Revised Statute 14:21 prevents him from
maintaining a counterclaim against Plaintiff. (Rec. Doc. 15-1
argues in opposition that Plaintiff's motion to dismiss
should be denied because Defendant has stated a claim upon
which relief can be granted. (Rec. Doc. 17 at 1). Defendant
asserts that he has demonstrated his entitlement to recovery
under Louisiana Revised Statute 9:2800.19 because his
counterclaim contains sufficient facts to show that his use
of force against Plaintiff was reasonable and apparently
necessary to prevent a forcible offense against Defendant in
accordance with Louisiana Revised Statute 14:19. (Rec. Doc.
17 at 4-5). Defendant notes that Plaintiff's argument
regarding Defendant's failure to retreat relates to the
weighing of factual assertions and is, therefore,
inappropriate under Rule 12(b)(6). (Rec. Doc. 17 at 5).
also argues that Plaintiff is not entitled to summary
judgment in the event this Court looks beyond the pleadings
and accepts Plaintiff's unsubstantiated assertion that
Defendant pleaded nolo contendere to battery in another
court. (Rec. Doc. 17 at 5). Defendant contends that Federal
Rule of Evidence 410 precludes Plaintiff's argument that
Defendant's nolo contendere plea prohibits Defendant from
asserting his counterclaim in the instant action. (Rec. Doc.
17 at 6-7).
raises two arguments in reply. (Rec. Doc. 22). First,
Plaintiff re-urges the Court to dismiss Defendant's
counterclaim because it is neither accurate nor plausible to
raise a self-defense argument. (Rec. Doc. 22 at 2). Plaintiff
essentially argues that the facts alleged by Defendant are
false. (Rec. Doc. 22 at 2-3). Specifically, Plaintiff asserts
that he neither assaulted Defendant when he touched him on
the shoulder nor did he initiate further bodily contact with
Defendant, and Defendant was the aggressor. (Rec. Doc. 22 at
2). In light of this, Plaintiff argues that Defendant's
use of force was not reasonable and apparently necessary.
(Rec. Doc. 22 at 3).
Plaintiff argues that this Court has authority to take
judicial notice of Defendant's plea of nolo contendere
under Rule 12(b)(6). (Rec. Doc. 22 at 4). Plaintiff contends
that the Court can consider the plea without converting the
instant motion into a motion for summary judgment because
courts deciding 12(b)(6) motions may take judicial notice of
matters of public record. (Rec. Doc. 22 at 4-5). Accordingly,
Plaintiff urges the Court to employ the doctrine of judicial
estoppel and dismiss the counterclaim at issue. (Rec. Doc. 22