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Pitre v. Epps

United States District Court, E.D. Louisiana

January 23, 2019

ALGERNON M. PITRE
v.
MICHAEL ELLIOTT EPPS AND THOMAS COBB

         SECTION: “J” (1)

          ORDER AND REASONS

          CARL J. BARBIER UNITED STATES DISTRICT JUDGE

         Before 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.

         FACTS AND PROCEDURAL HISTORY

         This 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).

         In his 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).

         PARTIES' ARGUMENTS

         Plaintiff 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).

         Second, 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 at 6).

         Defendant 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).

         Defendant 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).

         Plaintiff 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).

         Second, 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 at 5).

         LEGAL ...


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