civil district court for the parish of orleans - DocumentCloud
CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS STATE OF LOUISIANA NO. 2015-4547
SECTION 6
m
?DIVISION"L"
THE LENS, CHARLES MALDONADO AND ABRAM HANDLER •
VERSUS
MITCHELL J. LANDRIEU, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF NEW ORLEANS, AND THE CITY OF NEW ORLEANS Filed:
Deputy Clerk MOTION TO AMEND JUDGMENT AND FOR NEW TRIAL
NOW INTO COURT, through undersigned counsel, comes Plaintiffs, The Lens, Charles Maldonado and Abram Handler, who respectfully represent as follows: 1.
Trial of this matter was held before this Honorable Court on May 28, 2015. 2.
On June 1, 2015, this Honorable Court issued a Judgment denying Plaintiffs* Petition for Writ of Mandamus, Injunctive and Declaratory Relief. 3.
However, for all the reasons set forth in the corresponding Memorandum in Support, the judgment should be set aside, nullified pursuant to La. C.C.P. Arts. 2002, 2004. and a new trial
granted under La. C. C. P. 1971 et seq, as the law and evidence does not support the entry of judgment.
WHEREFORE, Movers pray that the Court set aside the Judgment entered in this matter, and grant a new trial and/or to alternatively nullify the judgment pursuant to La. C.C.P.
Art. 2002 and 2004, for reasons more fully set forth in the attached Memorandum in Support of this Motion.
Respectfully submitted, BALDWIN HASPEk BURKE & MAYER, LLC
I. STERNBIiRG(#33l9T)) 3600 Energy Centre 1100 Poydras Street New Orleans, LA 70163
Telephone: (504) 569-2900 Fax: (504) 569-2099 Electronic mail: [email protected]
Attorney for Petitioners, The Lens, Charles Maldonado and Abram Handler
{B0974055.1)
CERTIFICATE OF SERVICE
I hereby certify that I served a copy of the above and foregoing pleading on all counsel of record by the following designated method: Hand delivery;
_XFax; United States Mail, properly addressed, postage prepaid; Electronic transmission to the email address expressly designated by counsel;
m accordance with Louisiana Code of Civil Procedure Article 1313, this f
{B0974055.1}
day of June, 2015
CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS STATE OF LOUISIANA
NO. 2015-4547
SECTION 6
DIVISION"
THE LENS, CHARLES MALDONADO AND ABRAM HANDLER VERSUS
MITCHELL J. LANDRIEU, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF NEW ORLEANS, AND THE CITY OF NEW ORLEANS Filed:
Deputy' Clerk MEMORANDUM IN SUPPORT OF MOTION TO AMEND JUDGMENT AND FOR NEW TRIAL MAY IT PLEASE THE COURT:
Petitioners, The Lens, Charles Maldonado and Abram Handler (collectively "The Lens"), pray that this Court amend itsJune 1,2015 Judgment and, in the alternative granta new trial. LAW & ARGUMENT
The articles of the Code of Civil Procedure are to be "construed liberally,"1 and to that end the Louisiana Code of Civil Procedure art. 1972 states that a new trial shall be granted: (1) When the verdict or judgment appears clearly contrary to the law and the evidence;
(2) When the party has discovered, since the trial, evidence
important to the cause, which he could not, with due diligence, have obtained before or during the trial." A new trial may also be '"granted in any case if there is good ground therefor, except as
otherwise provided by law."3 This decision to grant a new trial "in the interest ofjustice" is left entirely to the sound discretion of this Honorable Court.4 The Louisiana Supreme Court has said that if the judgment "would result in a miscarriage of justice, a new trial should be ordered."3 This Court issued its Judgment of June 1, 2015 denying Petitioners' Writ of Mandamus, Declaratory Judgment, Injunction and request for attorney's fees.
The Lens avers that this
Judgment should be amended or set aside completely, in whole or in part, as the Judgment
1La. C.C.P. an. 5051.
" The law also provides a remedy "When the jury was bribed or has behaved improperly..." which is not at issue in this litigation as no jury was seated. 3 La. C.C.P. art. 1973.
*Atkins v. Louisiana Mut. Med Ins. Co., 105 So.3d 781, 795 (La. App. 2 Cir. 2012), writ denied, 2013-0341 (La. 4/1/13), 110 So.3d 585 {citing Succession ofRobinson, 186 La. 389, 172 So. 429 (1936)).
5Lamb v. Lamb, 430 So.2d 51, 53(La. 1983). (B0974327.1}
contains inadvertent errors disposing of portions of the case which were not before this
Honorable Court, and the substantive portions of the Judgment are clearly contrary to law and evidence.
I.
The Mandamus and the Declaratory Judgment Were Not Before the Court.
Of the five requests for mandamus, the City produced four of the requests before trial,
mooting those four requests for mandamus—as there was no ministerial duty to perform. Thanks to cooperation and meetings with opposing counsel, the fifth outstanding request, for the "BuySpeed" database, was continued without date as per agreement of counsel until the record
could be produced or the City denied the request. Due to the City's indication that it would take some time to segregate the data and produce the record, this agreement of counsel and continuance was put on the record at the May 28, 2015 hearing. Therefore, the inadvertent complete denial of the Petition's request for mandamus as to the BuySpeed database should be amended.
During the hearing on Defendants' exceptions of Improper Cumulation of Actions and
Use of Summary Proceedings, Your Honor indicated that the DeclaratoryJudgment action would
be heard at a later date. The June 1, 2015 Judgment denies the declaratory relief sought, which could have been an inadvertenterror or a substantive ruling by this Court. Petitioners request that Your Honor amend the Judgment to clarify this portion of the ruling.
Without further clarification from this Court, the Judgment would stand to dismiss the
entire action filed by Petitioners, including those portions which were continued by agreement of counsel. As to the declaratory relief sought, Petitioners respectfully request a clarification and/or amendment of the June 1,2015 Judgment from this Honorable Court. II.
The Injunction Should Issue, and The Lens Should Be Awarded Fees and Costs.
Your Honor is correct in his Judgment that the public "fully expects Defendants to comply with Louisiana Public Records Law." However, the clear law and evidence shows that the City is not complying with the law. When receiving a request for public records, if the custodian has a question "as to
whether it is a public record," the custodian has three days from receipt of the request to "notify
{B0974327.1}
in writing the person making suchrequest of his determination and the reasons therefor."6 This is
not the City's practice. Upon receipt of each and every request, the City of New Orleans sends a "notice" form letter with boilerplate language. But this language does not comply with the law, or immunize the City from the confines of the law, as it does not provide "an estimate of the time reasonably necessary for collection, segregation, redaction, examination, or review of a records
request."7 Your Honor should issue the injunction to require the City to comply with the law as written. If 12 days—or two months—are needed to respond to a public records request, the public is entitled by law to an estimate of that amount of time reasonably necessary to produce public documents.
Your Honor's ruling states because the requests "have been fulfilled" there is no remedy
available to The Lens. However, Heath v. City ofAlexandria clearly states that a delay of over two months, and a subsequently filed lawsuit, is enough to award attorneys' fees to the requestor. To allow the City to produce records following the filing of a lawsuit would excuse and sanction the City's delay. Two months for copies of City checks, electronic records which
can be segregated using database queries which take three months to produce, and reports from entities administering public programs which take two months and four weeks to produce are not reasonable amounts of time. Your Honor should reconsider his ruling on attorneys' fees, as well, as the facts before this Court are enough to show that in the instant cases, the delay was not
reasonable.9
III.
Conclusion
Petitioners respectfully request that this Court amend its earlier Judgment to clarify the proceedings of the June 1, 2015 hearing, and to grant their Motion for a New Trial. Petitioners believe that the law means what it says - that records should be presumed open, and that
requestors should not have to file a lawsuit to get the records they seek. The law and evidence show that the City does not comply with the Louisiana Public Records Law.
6La. Rev. Stat. Ann. §44:32(D). 7La. Rev. Stat. Ann. §44:33 (emphasis added). 811 So.3d 569,572 (La. App. 3 Cir. 2009). 9The City's own argument thatthere isnorequired time in thelaw to produce a public record, and itsmain support for that argument, Op.Atty.Gen.No. 96-303, July 3,1996, requires a reasonable amount of time to produce a public record.
{B0974327.1}
3
Respectfully submitted, BALDWIN HASPEL BURKE & MAYER, LLC
:09T L. STERNBERG (#33390) 3600 Energy Centre 1100 Poydras Street New Orleans, LA 70163
Telephone: (504) 569-2900 Fax: (504) 569-2099 Electronic mail: sls@,bhbmlaw.com
Attorney for Petitioners, The Lens, Charles Maldonado and Abram Handler
CERTIFICATE OF SERVICE
I hereby certify that I served a copy of the above and foregoing pleading on all counsel of record by the following designated method: Hand delivery;
.A. Fax; United States Mail, properly addressed, postage prepaid; Electronic transmission to the email address expressly designated by counsel;
inaccordance with Louisiana Code ofCivil Procedure Article 1313, this ^^-day of June, 2015.
{B0974327.1}
CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS STATE OF LOUISIANA
NO. 2015-4547
SECTION 6
DIVISION f'L"
THE LENS, CHARLES MALDONADO AND ABRAM HANDLER VERSUS
MITCHELL J. LANDRIEU, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF NEW ORLEANS, AND THE CITY OF NEW ORLEANS
Filed:
Deputy Clerk RULE TO SHOW CAUSE
Considering the Motion to Amend Judgment and for New Trial filed herein by Plaintiffs. The Lens, Charles Maldonado and Abram Handler,
IT IS ORDERED that Defendants, Mitchell J. Landrieu, in his official capacity as
Mayor of the City of New Orleans, and the City of New Orleans, show cause on the of
, 2015, at
o'clock
.m., why said motion should not
be granted as prayed for.
New Orleans, Louisiana, this
day of
, 2015.
JUDGE PLEASE SERVE DEFENDANTS:
Mitchell J. Landrieu, in His Official Capacity as Mayor of the City of New Orleans, and the City of New Orleans,
Through their attorneys of record: Cherrell R. Simms, Esq. William R. H. Goforth, Esq. E. Patrick Eagan, Esq. Isaka R. Williams, Esq. Sharonda R. Williams, Esq. New Orleans City Attorney's Office 1300 Perdido Street
City Hall - Room 5E03 New Orleans, LA 70112
{B0975370.1}
day
CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS STATE OF LOUISIANA
NO. 2015-4547
SECTION 6
THE LENS, CHARLES MALDONADO AND ABRAM HANDLER
fSifliCT C3URT
VERSUS
MITCHELL J. LANDRIEU, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF NEW ORLEANS, AND THE CITY OF NEW ORLEANS
Filed:
Deputy' Clerk RULE TO SHOW CAUSE
Considering the Motion to Amend Judgment and for New Trial filed herein by Plaintiffs, The Lens, Charles Maldonado and Abram Handler,
IT IS ORDERED that Defendants, Mitchell J. Landrieu, in his official capacity as
Mayoj; of the City of New Orleans, and the City of New Orleans, show cause on the p-y
of I JLAA.!( MUIAJX
_, 2015, at~l
uay
o'clock &) .m„ why said motion should not
be granted as prayed for.
bQjfl&.f(W
New Orleans, Louisiana, this
,2015.
JU?GE PLEASE SERVE DEFENDANTS:
JUDGE KERN A. REESE
Mitchell J. Landrieu, in His Official
Capacity as Mayor of the City of New Orleans, and the City of New Orleans, Through their attorneys of record: Cherrell R. Simms, Esq. William R. H. Goforth, Esq. E. Patrick Eagan, Esq. Isaka R. Williams, Esq. Sharonda R. Williams, Esq. New Orleans City Attorney's Office 1300 Perdido Street
City Hall - Room 5E03
PY
PARISH OF OSt-KAMS STATE Or' LOUISIANA
SECTION 6
m
?DIVISION"L"
THE LENS, CHARLES MALDONADO AND ABRAM HANDLER •
VERSUS
MITCHELL J. LANDRIEU, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF NEW ORLEANS, AND THE CITY OF NEW ORLEANS Filed:
Deputy Clerk MOTION TO AMEND JUDGMENT AND FOR NEW TRIAL
NOW INTO COURT, through undersigned counsel, comes Plaintiffs, The Lens, Charles Maldonado and Abram Handler, who respectfully represent as follows: 1.
Trial of this matter was held before this Honorable Court on May 28, 2015. 2.
On June 1, 2015, this Honorable Court issued a Judgment denying Plaintiffs* Petition for Writ of Mandamus, Injunctive and Declaratory Relief. 3.
However, for all the reasons set forth in the corresponding Memorandum in Support, the judgment should be set aside, nullified pursuant to La. C.C.P. Arts. 2002, 2004. and a new trial
granted under La. C. C. P. 1971 et seq, as the law and evidence does not support the entry of judgment.
WHEREFORE, Movers pray that the Court set aside the Judgment entered in this matter, and grant a new trial and/or to alternatively nullify the judgment pursuant to La. C.C.P.
Art. 2002 and 2004, for reasons more fully set forth in the attached Memorandum in Support of this Motion.
Respectfully submitted, BALDWIN HASPEk BURKE & MAYER, LLC
I. STERNBIiRG(#33l9T)) 3600 Energy Centre 1100 Poydras Street New Orleans, LA 70163
Telephone: (504) 569-2900 Fax: (504) 569-2099 Electronic mail: [email protected]
Attorney for Petitioners, The Lens, Charles Maldonado and Abram Handler
{B0974055.1)
CERTIFICATE OF SERVICE
I hereby certify that I served a copy of the above and foregoing pleading on all counsel of record by the following designated method: Hand delivery;
_XFax; United States Mail, properly addressed, postage prepaid; Electronic transmission to the email address expressly designated by counsel;
m accordance with Louisiana Code of Civil Procedure Article 1313, this f
{B0974055.1}
day of June, 2015
CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS STATE OF LOUISIANA
NO. 2015-4547
SECTION 6
DIVISION"
THE LENS, CHARLES MALDONADO AND ABRAM HANDLER VERSUS
MITCHELL J. LANDRIEU, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF NEW ORLEANS, AND THE CITY OF NEW ORLEANS Filed:
Deputy' Clerk MEMORANDUM IN SUPPORT OF MOTION TO AMEND JUDGMENT AND FOR NEW TRIAL MAY IT PLEASE THE COURT:
Petitioners, The Lens, Charles Maldonado and Abram Handler (collectively "The Lens"), pray that this Court amend itsJune 1,2015 Judgment and, in the alternative granta new trial. LAW & ARGUMENT
The articles of the Code of Civil Procedure are to be "construed liberally,"1 and to that end the Louisiana Code of Civil Procedure art. 1972 states that a new trial shall be granted: (1) When the verdict or judgment appears clearly contrary to the law and the evidence;
(2) When the party has discovered, since the trial, evidence
important to the cause, which he could not, with due diligence, have obtained before or during the trial." A new trial may also be '"granted in any case if there is good ground therefor, except as
otherwise provided by law."3 This decision to grant a new trial "in the interest ofjustice" is left entirely to the sound discretion of this Honorable Court.4 The Louisiana Supreme Court has said that if the judgment "would result in a miscarriage of justice, a new trial should be ordered."3 This Court issued its Judgment of June 1, 2015 denying Petitioners' Writ of Mandamus, Declaratory Judgment, Injunction and request for attorney's fees.
The Lens avers that this
Judgment should be amended or set aside completely, in whole or in part, as the Judgment
1La. C.C.P. an. 5051.
" The law also provides a remedy "When the jury was bribed or has behaved improperly..." which is not at issue in this litigation as no jury was seated. 3 La. C.C.P. art. 1973.
*Atkins v. Louisiana Mut. Med Ins. Co., 105 So.3d 781, 795 (La. App. 2 Cir. 2012), writ denied, 2013-0341 (La. 4/1/13), 110 So.3d 585 {citing Succession ofRobinson, 186 La. 389, 172 So. 429 (1936)).
5Lamb v. Lamb, 430 So.2d 51, 53(La. 1983). (B0974327.1}
contains inadvertent errors disposing of portions of the case which were not before this
Honorable Court, and the substantive portions of the Judgment are clearly contrary to law and evidence.
I.
The Mandamus and the Declaratory Judgment Were Not Before the Court.
Of the five requests for mandamus, the City produced four of the requests before trial,
mooting those four requests for mandamus—as there was no ministerial duty to perform. Thanks to cooperation and meetings with opposing counsel, the fifth outstanding request, for the "BuySpeed" database, was continued without date as per agreement of counsel until the record
could be produced or the City denied the request. Due to the City's indication that it would take some time to segregate the data and produce the record, this agreement of counsel and continuance was put on the record at the May 28, 2015 hearing. Therefore, the inadvertent complete denial of the Petition's request for mandamus as to the BuySpeed database should be amended.
During the hearing on Defendants' exceptions of Improper Cumulation of Actions and
Use of Summary Proceedings, Your Honor indicated that the DeclaratoryJudgment action would
be heard at a later date. The June 1, 2015 Judgment denies the declaratory relief sought, which could have been an inadvertenterror or a substantive ruling by this Court. Petitioners request that Your Honor amend the Judgment to clarify this portion of the ruling.
Without further clarification from this Court, the Judgment would stand to dismiss the
entire action filed by Petitioners, including those portions which were continued by agreement of counsel. As to the declaratory relief sought, Petitioners respectfully request a clarification and/or amendment of the June 1,2015 Judgment from this Honorable Court. II.
The Injunction Should Issue, and The Lens Should Be Awarded Fees and Costs.
Your Honor is correct in his Judgment that the public "fully expects Defendants to comply with Louisiana Public Records Law." However, the clear law and evidence shows that the City is not complying with the law. When receiving a request for public records, if the custodian has a question "as to
whether it is a public record," the custodian has three days from receipt of the request to "notify
{B0974327.1}
in writing the person making suchrequest of his determination and the reasons therefor."6 This is
not the City's practice. Upon receipt of each and every request, the City of New Orleans sends a "notice" form letter with boilerplate language. But this language does not comply with the law, or immunize the City from the confines of the law, as it does not provide "an estimate of the time reasonably necessary for collection, segregation, redaction, examination, or review of a records
request."7 Your Honor should issue the injunction to require the City to comply with the law as written. If 12 days—or two months—are needed to respond to a public records request, the public is entitled by law to an estimate of that amount of time reasonably necessary to produce public documents.
Your Honor's ruling states because the requests "have been fulfilled" there is no remedy
available to The Lens. However, Heath v. City ofAlexandria clearly states that a delay of over two months, and a subsequently filed lawsuit, is enough to award attorneys' fees to the requestor. To allow the City to produce records following the filing of a lawsuit would excuse and sanction the City's delay. Two months for copies of City checks, electronic records which
can be segregated using database queries which take three months to produce, and reports from entities administering public programs which take two months and four weeks to produce are not reasonable amounts of time. Your Honor should reconsider his ruling on attorneys' fees, as well, as the facts before this Court are enough to show that in the instant cases, the delay was not
reasonable.9
III.
Conclusion
Petitioners respectfully request that this Court amend its earlier Judgment to clarify the proceedings of the June 1, 2015 hearing, and to grant their Motion for a New Trial. Petitioners believe that the law means what it says - that records should be presumed open, and that
requestors should not have to file a lawsuit to get the records they seek. The law and evidence show that the City does not comply with the Louisiana Public Records Law.
6La. Rev. Stat. Ann. §44:32(D). 7La. Rev. Stat. Ann. §44:33 (emphasis added). 811 So.3d 569,572 (La. App. 3 Cir. 2009). 9The City's own argument thatthere isnorequired time in thelaw to produce a public record, and itsmain support for that argument, Op.Atty.Gen.No. 96-303, July 3,1996, requires a reasonable amount of time to produce a public record.
{B0974327.1}
3
Respectfully submitted, BALDWIN HASPEL BURKE & MAYER, LLC
:09T L. STERNBERG (#33390) 3600 Energy Centre 1100 Poydras Street New Orleans, LA 70163
Telephone: (504) 569-2900 Fax: (504) 569-2099 Electronic mail: sls@,bhbmlaw.com
Attorney for Petitioners, The Lens, Charles Maldonado and Abram Handler
CERTIFICATE OF SERVICE
I hereby certify that I served a copy of the above and foregoing pleading on all counsel of record by the following designated method: Hand delivery;
.A. Fax; United States Mail, properly addressed, postage prepaid; Electronic transmission to the email address expressly designated by counsel;
inaccordance with Louisiana Code ofCivil Procedure Article 1313, this ^^-day of June, 2015.
{B0974327.1}
CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS STATE OF LOUISIANA
NO. 2015-4547
SECTION 6
DIVISION f'L"
THE LENS, CHARLES MALDONADO AND ABRAM HANDLER VERSUS
MITCHELL J. LANDRIEU, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF NEW ORLEANS, AND THE CITY OF NEW ORLEANS
Filed:
Deputy Clerk RULE TO SHOW CAUSE
Considering the Motion to Amend Judgment and for New Trial filed herein by Plaintiffs. The Lens, Charles Maldonado and Abram Handler,
IT IS ORDERED that Defendants, Mitchell J. Landrieu, in his official capacity as
Mayor of the City of New Orleans, and the City of New Orleans, show cause on the of
, 2015, at
o'clock
.m., why said motion should not
be granted as prayed for.
New Orleans, Louisiana, this
day of
, 2015.
JUDGE PLEASE SERVE DEFENDANTS:
Mitchell J. Landrieu, in His Official Capacity as Mayor of the City of New Orleans, and the City of New Orleans,
Through their attorneys of record: Cherrell R. Simms, Esq. William R. H. Goforth, Esq. E. Patrick Eagan, Esq. Isaka R. Williams, Esq. Sharonda R. Williams, Esq. New Orleans City Attorney's Office 1300 Perdido Street
City Hall - Room 5E03 New Orleans, LA 70112
{B0975370.1}
day
CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS STATE OF LOUISIANA
NO. 2015-4547
SECTION 6
THE LENS, CHARLES MALDONADO AND ABRAM HANDLER
fSifliCT C3URT
VERSUS
MITCHELL J. LANDRIEU, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF NEW ORLEANS, AND THE CITY OF NEW ORLEANS
Filed:
Deputy' Clerk RULE TO SHOW CAUSE
Considering the Motion to Amend Judgment and for New Trial filed herein by Plaintiffs, The Lens, Charles Maldonado and Abram Handler,
IT IS ORDERED that Defendants, Mitchell J. Landrieu, in his official capacity as
Mayoj; of the City of New Orleans, and the City of New Orleans, show cause on the p-y
of I JLAA.!( MUIAJX
_, 2015, at~l
uay
o'clock &) .m„ why said motion should not
be granted as prayed for.
bQjfl&.f(W
New Orleans, Louisiana, this
,2015.
JU?GE PLEASE SERVE DEFENDANTS:
JUDGE KERN A. REESE
Mitchell J. Landrieu, in His Official
Capacity as Mayor of the City of New Orleans, and the City of New Orleans, Through their attorneys of record: Cherrell R. Simms, Esq. William R. H. Goforth, Esq. E. Patrick Eagan, Esq. Isaka R. Williams, Esq. Sharonda R. Williams, Esq. New Orleans City Attorney's Office 1300 Perdido Street
City Hall - Room 5E03
PY
PARISH OF OSt-KAMS STATE Or' LOUISIANA
