United States District Court, E.D. Louisiana
JUDY WILLIAMS, ET AL.
IQS INSURANCE RISK RETENTION, ET AL.
ORDER AND REASONS REF: ALL ACTIONS
ZAINEY UNITED STATES DISTRICT JUDGE
following motion is before the Court: Motion to
Strike (Rec. Doc. 107) filed by Plaintiffs, Judy
Williams, Mary Wade, and Lucinda Thomas. Defendants Southern
Refrigerated Transport, Inc., IQS Insurance Risk Retention
Group, Inc., and Eric Darnell Martin, oppose the motion. The
motion, noticed for submission on March 6, 2019, is before
the Court on the briefs without oral argument.
suit arises out of personal injuries that Plaintiffs
allegedly sustained in a car accident on June 6, 2017.
Defendant Eric Martin was driving the other vehicle. On March
6, 2018, and June 5, 2018, Plaintiffs filed two petitions
against Defendants in state court. Defendants removed both
actions to this Court. All three plaintiffs underwent surgery
before suit was filed.
trial is scheduled to commence on June 3, 2019. (Rec. Doc.
now move to strike Defendants' affirmative defense of
fraud arguing that the defense is insufficiently pleaded
under Federal Rule 9(b) (“In alleging fraud or mistake,
a party must state with particularity the circumstances
constituting fraud or mistake.”). Plaintiffs also
contend that the defense was raised untimely under the
Court's scheduling order.
response, Defendants explain that they believe that during
the course of discovery they have uncovered evidence of
fraud. Specifically, Defendants contend that cell phone
records reveal that Plaintiffs have hidden the existence of a
Mr. Damian LaBeaud, an eyewitness to the accident. Defendants
contend that Plaintiff Lucinda Thomas testified falsely at
her deposition when asked who she called from the scene of
the accident. Defendants contend that Plaintiff's counsel
also represents Mr. LaBeaud, as well as several of his
Court notes that Defendants raised the fraud defense for the
first time on February 11, 2019, when they filed an amended
answer after the deadline to amend pleadings and without
leave of Court to do so. (Rec. Docs. 102 & 103).
Defendants claim that they could file the amended answer as
of right because Plaintiffs had amended their complaint to
bring Zurich into the suit as the excess
insurer. (Rec. Docs. 62 & 64).
pleading, which in substance comprises two sentences, raises
no new allegations against Defendants whatsoever. This point
is driven home by Defendants' amended answer which in
response to the actual allegations of Plaintiffs' amended
complaint (which again are directed to Zurich and not
Defendants), acknowledges that they “do not require a
response from Defendants.” (Rec. Docs. 102 & 103).
In fact, the entire substance of the amended answer comprises
Defendants affirmative defense of fraud, to which Defendants
have appended 90 pages of documents. Even if Defendants did not
learn of the facts that they believe support a fraud defense
until after the deadline for amending pleadings had passed,
the proper course of action was to explain the basis for the
delay as part of a motion for leave to amend the prior
answer. Defendants' suggestion that the non-specific
reference to “defendants” in the closing prayer
of the amended complaint asserted against Zurich gave them
the right to file a responsive pleading, the sole purpose of
which was to assert an otherwise untimely affirmative defense
without obtaining leave of Court, only serves to undermine
the accusations that Defendants are making are serious. A
common theme that runs throughout several motions pending in
this matter, including motions pending before the magistrate
judge, is that some deceit or intent to conceal on
Plaintiffs' part contributed to the delay in uncovering
the evidence that Defendants believe supports a fraud
defense. The Court notes that nothing suggests that Damian
LaBeaud was an eyewitness to the accident so Plaintiffs'
failure to identify him or her in their answers to
interrogatories is not necessarily remarkable. In fact, given
the amount of cell phone traffic between Plaintiffs and
LaBeaud around the time of the accident it seems pretty
obvious that LaBeaud was not located at the scene of the
accident with Plaintiffs.
arguments based on Lucinda Thomas's deposition testimony
(when compared to her cell phone records) lose much of their
weight when considering her actual testimony. Defense counsel
asked Ms. Thomas at her deposition if she had called anyone
else besides Cleveland and Anthony and she said
“not that I can
remember.” (Rec. Doc. 125-3, Thomas
Deposition at 64). Even though her cell phone records
indicate that she called LaBeaud 22 minutes after the
accident, there is nothing implicitly deceitful in
Thomas's testimony that she simply could not recall
whether she had called anyone else.
given that Plaintiffs' counsel was representing
a Damian LaBeaud (whether male or female, this point
seems to be in dispute) at the time of the accident, it
occurs to the Court that the cell phone records that
Defendants believe are so probative of a fraud may also be
consistent with one client simply referring an acquaintance
(just involved in an accident) to the personal injury
attorney that she is using. This is not an uncommon practice.
Court has determined that the most prudent approach at this
juncture is to deny the motion to strike pending resolution
of the matters before the magistrate judge, who is free to
make her own determination regarding the persuasiveness of
Defendants' position. Plaintiffs' motion to strike is
being denied without prejudice to Plaintiffs' right to
move to exclude the evidence that Defendants seek to offer in
support of the fraud defense via a motion in limine.
Defendants should not conduct their litigation ...