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Adventures in Pro Se Pleadings # 2

This series should have begun a long time ago, but ...

the best time to start is years ago, or now.

After repeated failures to explain why her medical malpractice lawsuit belongs in federal court, Judge Morgan dismisses plaintiff's suit again, this time with prejudice. Key quote:

The Court has previously recognized Plaintiff’s attempts to assert federal jurisdiction were frivolous. Defendants argue dismissal with prejudice is necessary, as Plaintiff has been undeterred by the Court’s prior dismissals. Plaintiff argues she did not submit her claim in bad faith, and has not intended to harass, delay, or embarrass the Defendants. The facts indicate otherwise.

Posted: Jan. 28, 2021


Regarding Magistrate Judge Scott Johnson's instruction in Satterfeal et al v. LoanCare, LLC et al, USDC-MDLA # 3:18-cv-01021:

Any requests for extension, which are not encouraged, must demonstrate good cause and be filed prior to the expiration of the relevant deadline.

"Not encouraged" should be understood as encouragement. Or a strong suggestion.

Posted: Jan. 27, 2021

Adventures in Pro Se Pleadings

With a story like that, you'd think he could have found representation!

Posted: Jan. 7, 2021

Thou Shalt Zoom

The First Circuit declares that in person court appearances remain disfavored under the Louisiana Supreme Court June 5, 2020, order providing "that all matters should continue to be conducted with the use of video and telephone conferencing whenever possible. " Live testimony "by teleconference, video link, or other visual remote technology" is authorized under the Code of Civil Procedure "when compelling circumstances are shown." See La. C.Civ.Proc. art. 1633.1.

In a custody metter pending in West Baton Rouge Parish, the trial court recently ordered that "all parties and all Counsel of Record" appear before the court. Under current COVID conditions, the order was an abuse of discretion.

Posted: Dec. 10, 2020

TRO No! JBE Enjoins the House

Another attempt to cut off Governor Edwards' COVID mandates Zoomed to defeat Thursday before 19th JDC Judge William Morvant. The Eastern and Western Federal District Courts and now the 19th JDC have rejected various challenges to the Governor's public health authority. The latest attempt by the legislature to force and end to executive orders restricting public activities in Louisiana was based on La. R.S. 29:768 which provides:

§768. Termination of declaration of public health emergency

A. The state of public health emergency shall continue until the governor finds that the threat of danger has passed or the disaster or emergency has been dealt with to the extent that the emergency conditions no longer exist and terminates the state of public health or emergency by executive order or proclamation, but no state of public health emergency may continue for longer than thirty days unless renewed by the governor.

B. The legislature, in consultation with the public health authority, by a petition signed by a majority of the surviving members of either house, may terminate a state of public health emergency at any time. This petition terminating the public health emergency may establish a period during which no other declaration of public health emergency may be issued. Thereupon, the governor shall issue an executive order or proclamation ending the state of public health or emergency.

Acts 2003, No. 1206, §1.

Governor Edwards' brief addressing the issues before the court on his Petition for Declaratory Judgment and Injunctive Relief and the opposing Petition for Temporary Restraining and Preliminary Injunction filed by Clay Schexnayder in his capacity as the Speaker of the Louisiana House of Representatives is posted below. Judge Morvant held the legislators' action to be unenforceable as the statute permitting action by a single chamber violates the state constitution. At the time this post was prepared, no written documentation of the court's action was available.

Posted: Nov. 12, 2020

Admitted Admission Admitted

EDLA Magistrate Judge Karen Wells Roby denied a defense motion to deem requests for admission admitted. Not because of any defect, but because the plaintiff's failure to respond equates to an admission as a matter of law. No judgment to that effect is required, or, apparently, permitted.

Posted: Oct. 21, 2020

Free Speech and Public Schools

Tinker v. Des Moines Independent Community School District declared that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” On October 9, 2020, Judge Eldon Fallon extended that principle to the parking lot.

Pine Junior-Senior High School in Washington Parish permits students to paint a design of their choice on reserved parking spots with only limited restrictions. Senior Ned Thomas had a friend paint a stylized portrait of President Trump in his spot. It was promptly painted over by school officials. Ned's parents took the school board and superintendent to court in the EDLA where Judge Fallon granted plaintiffs' motion for preliminary injunction.

Posted: Oct. 13, 2020

An Historic Chief Judge Retires

Second Circuit Chief Judge Felicia Toney Williams announced her retirement from the bench effective September 30. We can't do better than the court's official announcement below detailing a 30 year judicial career, including her 1992 election as the first female African American on the Second Circuit bench. All I can add is that I began building CompQuantum in 2012 and Judge Williams has been one of the few constants in the last eight years of data entry. She is associated with 212 cases in our database. After enough entries, you start to think of some judges as old friends you've never met. Judge Williams is one of those. We wish her the best in retirement.

Her position was filled on Wednesday, October 7, 2020, by the Honorable D. Milton Moore, III, another judge with enough seniority to have left a mark at CompQuantum. Congratulations to Judge Moore.

Finally, retired Judge Edward Bleich was appointed by the Supreme Court to serve pro tempore beginning "October 1, 2020 through May 31, 2021 or until the vacancy is filled, whichever occurs sooner."

All three announcements are posted below.

Posted: Oct. 9, 2020

Medical Malpractice Prescription

An exception of prescription filed pursuant to La. R. S. 40:1231.8( B)( 2)( a) cannot be referred to the merits. It is intended to allow the provider to raise the exception "without the need for completion of the review process by the medical review panel." See Cleveland v. Our Lady of the Lake Hospital, Inc., 2020 CW 0631 (LaApp1 9/28/20), below.

Posted: Sept. 30, 2020

Former Saint Delvin Breaux's Medical Malpractice Suit

A lot of high school football players believe they missed the chance for college and on to professional greatness by the slimmest of margins. A half-inch in height, a tenth of a second in the 40, an injury before that big game attended by top D1 recruiters. And then there are the few Delvin Breauxs. The guys who make it anyway.

Breaux made it to the SEC in spite of suffering neck fractures on a kickoff return for McDonough 35, but he was never cleared to play at LSU. A successful single season in semi-pro football and a year in the Arena Football League set the stage for his ascension to professional football in Canada. An unlikely career became exceptional made the New Orleans Saints roster in 2015.

At training camp before his third season with the Saints, Breaux suffered a leg fracture that left him on IR. It was his last season (so far) in the NFL. He returned to the Canadian league where he remains with the Hamilton Tiger-Cats.

On September 24, 2020, Breaux filed a medical malpractice claim alleging doctors' failure to properly diagnose the 2017 training camp injury resulted in worsening of his condition through continued practice. His petition is posted below.

Posted: Sept. 30, 2020