Hartley v. Vallien

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30624
Summary Calendar
CAROLA ANN HARTLEY, also known as Carola Ann Andrepont,
Plaintiff-Appellant,
versus
JOHN ANTHONY VALLIEN; ET AL,
Defendants,
JOHN ANTHONY VALLIEN; KENNETH VIDRINE; EMILY SUE DEVILLE; LARRY
CALLIER; CITY OF OPELOUSAS; BARRY CARRIERE,
Defendants-Appellees.
Appeal from the United States District Court
For the Western District of Louisiana
(USDC No. 00-CV-1156)
December 3, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Appellant, Carola Ann Hartley, appeals the district court’s
grant of summary judgment to defendant on all federal claims.
Appellant argues that the district court did not allow enough time to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
complete discovery and properly defend the summary judgment motion,
and that the district court erred in granting summary judgment as to
her Fifth and Fourteenth Amendment claims arising from an alleged
“takings” by the appellees. We disagree, and affirm the district
court’s grant of summary judgment.
I.
The claims in this case arise from the events surrounding the
dismissal of Hartley from employment by the City of Opelousas.
Claims were filed by Hartley against numerous defendants on May 12,
2000, asserting numerous claims under 42 U.S.C. §§ 1981, 1982, 1983,
1985 and 1988 as well as under Title VII and state law. Hartley also
asserted claims against the city for the actions of its employees for
violation of the Fifth and Fourteenth Amendments of the U.S.
Constitution for alleged takings without proper due process.
Hartley raises two issues on appeal. First, that the district
court erred in not allowing sufficient time for discovery so that
Hartley was not able to adequately defend against the appellees’
summary judgment motion. Second, that the district court erred in
granting summary judgment as to the Fifth and Fourteenth Amendment
violations for “takings”.
II.
The facts surrounding the first issue begin after Hartley’s suit
was filed in May 2000. In late October 2000, defendants filed a
motion to recuse Hartley’s counsel, Christian Goudeau and Anne
Watson, because they were material witnesses in the suit. The motion
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was denied as premature, but the court stated that the motion could
be reurged once evidence to support the motion was obtained. A
Scheduling Order was entered on December 12, 2000, setting the
deadline for discovery for July 12, 2001 (excluding discovery
relating to the reliability or relevance of electronic aids which was
set for August 13, 2001). In late December, 2000, defendants took
the deposition of Hartley. At the end of the deposition, plaintiff
alleges that defense counsel informed plaintiff’s counsel that they
were going to renew their motion for recusal, and plaintiff’s counsel
informed the defense that they would not oppose the motion to recuse.
On January 23, 2001 plaintiff gave the court notice to take the
depositions of three defendants on February 21, 2001. These
depositions were cancelled by the plaintiff some time around February
15, allegedly because of the impending recusal motion. In
plaintiff’s February 22, 2001 motion for an extension of the deadline
to file a Rule 7(a) reply, plaintiff asserted that the extension was
necessary because defense counsel had informed plaintiff’s counsel
that a motion to recuse was imminent and would be filed within the
next week. Because of the impending recusal, plaintiff stated that
the 30-day extension to file her reply “is necessary to afford
Complainant time to secure counsel and allow new counsel, if the
Motion to Recuse is granted, to submit a reply which new counsel will
deem appropriate.” In granting the motion for an extension on March
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2, 2001, the court noted “No motion to recuse has been filed, nor is
there any guarantee that it will be granted.”
The second motion to recuse was filed on May 2, 2001 and granted
on July 18, 2001. On July 12, the deadline for discovery,
plaintiff’s counsel filed a motion to postpone the deadline for
discovery, citing the pending motion for recusal and the need for new
counsel to have an opportunity to conduct discovery. This motion was
denied on July 20, 2001, without prejudice to refiling by new
counsel.
Defendants filed a motion for summary judgment on August 13,
2001. Plaintiff’s new counsel filed a motion to enroll on August 16,
and on August 23 filed a motion to extend the deadline for discovery,
as well as an extension to respond to the summary judgment motion.
The extension to respond to the summary judgment motion was granted,
but the motion to postpone the discovery deadline was denied.
The court granted the defendants’ motion for summary judgment on
March 21, 2002, dismissing all federal law claims and declining to
exercise jurisdiction over plaintiff’s state law claims. Plaintiff
sought a rehearing, raising the lack of opportunity to conduct
adequate discovery. This motion was denied on May 14, 2002, and
plaintiff appealed.
III.
4
We review the district courts denial of the motion to postpone
the discovery deadline for abuse of discretion.1 This court has
stated:
‘When the question for the trial court is a scheduling
decision,...the judgment range is exceedingly wide....’
We will not ‘substitute our judgment concerning the
necessity of a continuance for that of the district court’,
unless the complaining party demonstrates that it was
prejudiced by the denial.2
Appellant correctly states that “adequate time” for discovery is
an essential and necessary element to the granting of summary
judgment.3 However, appellant has failed to show that she lacked
adequate time for discovery. The suit was filed in May of 2000, and
the discovery deadline was set for July of 2001, more than a year
later. During that entire time, appellant was represented by counsel
who did not conduct a single deposition or submit a single
interrogatory.
Appellant claims that her counsel cancelled scheduled
depositions because defense counsel informed her counsel that a
motion to recuse her counsel was going to be filed in the near
future, and because it would be unopposed, recusal was imminent.
1
HC Gun & Knife Shows, Inc. v. City of Houston, 201 F.3d 544,
549 (5th Cir. 2000).
2
Id. (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1193, 1194
(5th Cir. 1986).
3
See Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254, 263
(5th Cir. 2002)(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
5
Because recusal was “imminent,” coupled with plaintiff’s counsel not
wanting “to subject Mrs. Hartley to any unnecessary fees or waste
court time, Mrs. Hartley’s attorneys felt it economically and
judicially prudent to postpone the depositions of the Defendants
until the recusal issue was settled.”
This reason is not sufficient to justify appellant’s inaction.
As the district court noted in its March 2 order granting an
extension to file their Rule 7(a) response, there was no recusal
motion pending and there was no guarantee that it would be granted
when filed. There was nothing to prevent appellant’s counsel to
continue to take discovery until they were recused, or to voluntarily
remove themselves from the case. Appellant was aware of the
possibility of recusal of her counsel since the first motion for
recusal was denied as untimely in October 2000, and yet she took no
action to retain new counsel or conduct discovery. After it became
clear in December 2000 that a second recusal motion would be filed
and would be unopposed, she still took no action. Finally, after the
second motion to recuse was filed in early May, 2001, with more than
two months remaining for discovery, she still took no action. Not
until the day of the discovery deadline on July 12, 2001 did
appellant take any action, and then it was to ask for a postponement
of the discovery deadline.
While the “impending” recusal may have added some uncertainty to
the future status of appellant’s counsel, it in no way prevented them
from conducting discovery. Nor did it prevent appellant from
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retaining new counsel. Clearly, appellant had adequate time for
discovery as is required by Rule 56 and this court. The fact that
appellant failed to do so was completely within the control of the
appellant. This is not a case where the defendant hindered attempts
to conduct discovery by refusing to cooperate. The district court
did not abuse is discretion in denying the motion to extend the
deadline for discovery.
IV.
Appellant’s second issue on appeal is that the district court
erred in granting summary judgment to the defendants with regard to
her Fifth and Fourteenth Amendment “takings” without due process
claim.
The facts leading to her “takings” claim are as follows.
Appellant had loaned numerous items to a city museum in Opelousas in
the early 1990's and they had remained there until May 14, 1999 when
appellant was terminated by the city. On that date, appellant tried
to remove several items from the museum, but was told by her former
superior both in person and in writing that she would have to provide
“proper documentation or determination of ownership of the property.”
On May 20, 1999, appellant returned to the museum with affidavits
asserting her ownership of the items. She presented the documents to
the director of the museum and proceeded to remove the items. While
removing the items, she was stopped by two police officers who stated
that her affidavits were not sufficient documentation. When she
refused to stop removing the items, she was arrested.
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V.
We review a summary judgment de novo, viewing the evidence and
inferences therefrom in the light most favorable to the nonmoving
party.4 "[T]he plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial."5
A plaintiff couching a claim pursuant to the Fifth and
Fourteenth Amendments for deprivation of property without due process
must first prove she had a property right of which she was deprived.
Once the due process clause is found to apply, the question becomes
what process is required.6 For the purposes of summary judgment, the
district court assumed that appellant had a property right in the
property at issue and focused its attention on the type of process
provided for the return of the loaned property. We shall do the
same.
The appellant asserts a claim that is procedural in nature.
What is required by procedural due process is “not a technical
4
U.S. Fidelity & Guaranty Co. v. Wigginton, 964 F.2d 487 (5th
Cir. 1992); Baton Rouge Building & Constr. Trades Council v. Jacobs
Constructors, Inc., 804 F.2d 879 (5th Cir. 1986).
5
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
6
See Cleveland Board of Education v. Loudermill, 470 U.S. 532,
541 (1985).
8
conception with a fixed content unrelated to time, place and
circumstances” and is “flexible and calls for such procedural
protections as the particular situation demands.”7
In the present case, the city possessed several pieces of
property on loan to the museum from numerous individuals. The city
provided appellant with a procedure for the return of her property
which was necessary to protect the other property that was on loan.
The procedure was contained in the letter of May 14 and stated:
As per advice of the City Attorney, you are not allowed to
remove property from the Opelousas Museum & Interpretive
Center without proper documentation or determination of
ownership of property. All efforts will be made to
determine ownership as soon as possible. Once ownership
is determined to be yours, it shall be returned.
Hartley argues that she presented affidavits of ownership to the
Director of the Museum, Sue Deville, yet was declined permission to
remove her property, and thus there was a taking of the property.
This argument fails. Although she presented affidavits to the
director of the museum, there was no opportunity for the city to
determine if the documentation established ownership, and was
therefore proper. Who could make this determination for the city is
not spelled out in the letter. However, appellant was aware that it
was the head of the Department of Culture, Parks, Recreation and
Tourism, her former supervisor, Kenneth Vidrine, who had given her
the letter on May 14 and was the official acting on behalf of the
city in the matter. The person to whom she gave the letter, Deville,
7
Gilber v. Homar, 520 U.S. 924 (1997)(citations ommitted).
9
had called on Vidrine in the initial incident on May 14 and obviously
was not the person who could make the decision for the city.
Appellant has offered no evidence that she has ever tried to
offer the affidavits to Vidrine and been denied her property. Until
plaintiff has given documentation of ownership to a proper city
official and allowed that official to determine if the documents are
sufficient, appellant has not exhausted the procedure provided.
Until that procedure is exhausted, appellant cannot sustain a claim
that her property was taken without due process. Therefore the grant
of summary judgment is affirmed.
In conclusion, the district court did not abuse its discretion
in denying the motion to postpone the discovery deadline. The
summary judgment motion was properly granted with respect to
appellant’s Fifth and Fourteenth Amendment claims of taking without
due process. The district court is AFFIRMED.
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