Case 3:14-cv RGJ-KLH Document 130 Filed 06/07/16 Page 1 of 1 PageID #: 3765 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA

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1 Case 3:14-cv RGJ-KLH Document 130 Filed 06/07/16 Page 1 of 1 PageID #: 3765 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION LOUISIANA CLEANING SYSTEMS, ET AL. CIVIL ACTION NO VERSUS ANDY BROWN, INDIVIDUALLY AND AS SHERIFF OF JACKSON PARISH JUDGE ROBERT G. JAMES MAG JUDGE KAREN L. HAYES JUDGMENT Upon consideration of the parties Joint Motion to Dismiss [Doc. No. 129], IT IS ORDERED, ADJUDGED, AND DECREED that the motion is GRANTED. All claims and causes of action against Defendants are hereby DISMISSED WITH PREJUDICE, with all parties to bear their own costs. th MONROE, LOUISIANA, this 7 day of June, 2016.

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7 Case 3:14-cv RGJ-KLH Document 50 Filed 11/04/15 Page 1 of 11 PageID #: 932 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION Louisiana Cleaning Systems, Inc., et al. Plaintiff VS. Sheriff Andy Brown, et al. Defendant Civil No. 14-CV-2853 Judge James Magistrate Judge Hayes PRETRIAL ORDER Following pretrial proceedings in this cause pursuant to the procedure of this court, IT IS ORDERED: A. This is an action for: (State nature of action, including damages or other relief sought and identification of parties.) Violation of United States Constitutional rights, in that Defendant allegedly impinged upon the Plaintiffs' First and Fourteenth Amendment rights. Plaintiffs seek actual and compensatory damages for breach of contract and lost profits, as well as punitive damages, costs, and attorney's fees, along with punitive damges and a permanent injunction to enjoin the Defendant from any future inteference with the Plaintiffs' right to engage in commercial free speech (i.e., door-to-door sales). Defendants deny that any Constitutional violations occurred, specifically assert the defense of Qualified Immunity if the Court determines that any Constitutional violations did occure, and further argue that, regardless, there were no lost profits. Finally, Defendants argue that no permanent injunction should issue solely to enforce rights already established.

8 Case 3:14-cv RGJ-KLH Document 50 Filed 11/04/15 Page 2 of 11 PageID #: 933 B. The parties and their legal relationships are as follows: (State legal relationship of all parties with reference to claims, counterclaim, third-party claims, etc. In a direct action against insurer, the insured must be identified.) A. Plaintiffs: 1. Charles Nugent, 2401 Veterans Blvd., Ste. 6-8, Kenner, La , individually and as President of Louisiana Cleaning Systems, Inc. regarding facts and damages. 2. Louisiana Cleaning Systems, Inc., 2401 Veterans Blvd., Ste. 6-8, Kenner, La , who sells Kirby Vacuum Cleaners door-to-door and does no other advertising. 3. Justin Freeman, 2401 Veterans Blvd., Ste. 6-8, Kenner, La , plaintiff salesperson, regarding facts and damages. 4. Lashante Scott, 2401 Veterans Blvd., Ste. 6-8, Kenner, La , plaintiff salesperson, regarding facts and damages 5. Darrisha Walker, 2401 Veterans Blvd., Ste. 6-8, Kenner, La , plaintiff salesperson, regarding facts and damages. 6. Tyris Dauphin, 2401 Veterans Blvd., Ste. 6-8, Kenner, La , plaintiff salesperson, regarding facts and damages. 7. Nicholas Jefferson, 2401 Veterans Blvd., Ste. 6-8, Kenner, La , plaintiff salesperson, regarding facts and damages. B. Defendants: 1. Sheriff Andy Brown, Sheriff of the Parish of Franklin. 2. Deputy Gerald Palmer, Jackson Parish Deputy. 3. Deputy Tim Wyatt, Jackson Parish Deputy. 4. Deputy Michael Simonelli, Jackson Parish Deputy. Page 2 of 11

9 Case 3:14-cv RGJ-KLH Document 50 Filed 11/04/15 Page 3 of 11 PageID #: 934 C. Statement of jurisdiction: (State the facts and statutory basis for federal jurisdiction.) I. Plaintinffs' Statement of Facts: This is an action for declaratory relief, preliminary and permanent injunctive relief, compensatory damages and punitive damages against Andy Brown, both Individually and his official capacity as Sheriff of the Parish of Jackson in the State of Louisiana, Deputy Gerald Palmer, Deputy Tim Wyatt, and Deputy Michael Simonelli, who have unconstitutionally burdened the 1st Amendment right of free speech and expressive activities of Plaintiffs door-todoor solicitation of residents of Jackson Parish, State of Louisiana. Plaintiffs are Louisiana Cleaning Systems, Inc., Charles Nugent, both individually and as the President of Louisiana Cleaning Systems, Inc., successor in interest to and formerly known as Louisiana Kirby Inc., a common enterprise and successor in interest to Louisiana Cleaning Systems, Inc., and its salespersons, Darrisha Walker, Lashante Scott, Justin Freeman, Tyris Dauphin, and Nicholas Jefferson (hereinafter referred to as "the Plaintiffs''). The Plaintiffs seek a permanent injunction and damages that Sheriff Andy Brown and his Deputies Gerald Palmer, Deputy Tim Wyatt, and Deputy Simonelli individually acted intentionally under color of state law with malice in violation of Plaintiffs contractual right to sell with its occupational license and the violation of Plaintiffs First Amendment Rights of Free Speech by Defendants not allowing its door-to-door sales activities with residents of Jackson Parish. Defendants ordered Plaintiffs to leave Jackson Parish or be arrested, telling them it did not matter Plaintiffs had a valid permit to solicit. This is clearly shown on video. One of the videos taken by a Plaintiff was deleted by a Deputy. Defendants violated Plaintiffs constitutional rights under the First and Fourteenth Amendments to the U.S. Constitution by acting under color of state law, in refusing to allow Plaintiffs to Page 3 of 11

10 Case 3:14-cv RGJ-KLH Document 50 Filed 11/04/15 Page 4 of 11 PageID #: 935 conduct its door-to-door canvassing activities due to Sheriff Andy Brown s instructions, failure to train and failure to supervise his Deputies acts under color of state law, which violated Plaintiffs 1st Amendment Rights to Freedom of Speech and Plaintiffs 14th Amendment Rights to due process when although they had a valid occupational license to solicit door-to-door in Jackson Parish, they were told to leave Jackson Parish and never return. This is documented on Deputy Palmer s body cam video and cell phone videos of Plaintiffs in which Plaintiffs were told to leave the Parish of Jackson or be arrested and pay $1000 bond to get out of jail if they continued to solicit residents of Jackson Parish and did not leave Jackson Parish forever. Defendants caused Plaintiffs damages for its not allowing door-to-door solicitation of residents in Jackson Parish by Plaintiffs in Jackson Parish even when the Deputies knew Plaintiffs had a valid occupational license to solicit door-to-door issued by the Parish of Jackson. Defendants had a practice of not allowing door-to-door salesmen to solicit residents of Jacckson Parish, failed to properly train its Deputies, failed to supervise its Deputies and condoned the Deputies illegal acts under color of state law in violation of the Plaintiffs First and Fourteenth Amendments to the United States Constitution and state law contractual rights in having a valid permit to solicit under state law. Plaintiffs seek a permanent injunction for all the Plaintiffs continued door-todoor sales operations. Plaintiffs seek monetary damages, punitive damages, and damages for humiliation by the Defendants from October 4, 2013, to date. Plaintiff, Nicholas Jefferson was also harassed, humiliated and told to leave the Parish of Jackson by Jackson Parish Deputies in November Plaintiffs all sustained damages as the business, Charles Nugent is sole shareholder, and salesmen Darrisha Walker, Lashante Scott, Justin Freeman, Tyris Dauphin, and Nicholas Jefferson all were humiliated and lost income they would have earned from sales of Kirby Vacuum Cleaners. Page 4 of 11

11 Case 3:14-cv RGJ-KLH Document 50 Filed 11/04/15 Page 5 of 11 PageID #: 936 Plaintiffs have sustained damages from October 4, 2013, to date due to Defendants violation of state and federal constitutional law under the First and Fourteenth Amendments to the U.S. Constitution and are still sustaining damages to date due to the harassment and acts of Defendants. Plaintiffs seek a permanent injunction and damages for each plaintiff. Plaintiffs have video recordings of Deputy Palmer, a Deputy sheriff employee, confirming Sheriff Andy Brown did not want Plaintiffs to solicit door-to-door in Jackson Parish and they had to leave Jackson Parish. Deputies also told residents to cancel sales contracts, that Plaintiffs were illegally operating, that Plaintiffs were scammers, and that Plaintiffs were barred from doing business in Ouachita and Jackson Parishes. Jackson Parish Deputies also told customers in Jackson Parish not to do business with Plaintiffs and even advised customers to cancel contracts for Kirby vacuum cleaners. II. Defendants' Statement of Facts: Defendant denies the plaintiffs' contentions. The sheriff's office received calls and complaints from local residents that the plaintiffs were behaving suspiciously in the community. On the date of the incident in question, October 4, 2014, Deputy Palmer responded to two such calls. At the first call, which is entirely recorded on video via Deputy Palmer's body-worn camera, Deputy Palmer met with Charles Nugent and another Louisiana Cleaning Systems, Inc. salesperson at the home of a local resident who wanted the salesperson to immediately leave the resident's private property. Deputies Michael Simonelli and Tim Wyatt arrived at the end of that interaction and never had any interactions with any of the plaintiffs at any time. Mr. Nugent was told that the plaintiffs could continue to sell vacuum cleaners in Franklin Parish, but that if the residents continued to call in complaints, the deputies would continually have to respond to same. Page 5 of 11

12 Case 3:14-cv RGJ-KLH Document 50 Filed 11/04/15 Page 6 of 11 PageID #: 937 Later, on that same date, Deputy Palmer and other deputies, none of which are a party to this suit, responded to a second, similar call where Gayle Cavett was requesting that the plaintiffs' salespeople be removed from the plaintiffs' personal property. Ms. Cavett specifically informed the deputies that she did not want to buy a vacuum cleaner from the plaintiffs and had told the plaintiffs that prior to the deputies' arrival. This is the resident who plaintiffs claim had a contract of sale with the plaintiffs that the deputies "tore up." That resident also reported that she had asked the plaintiffs' salseperson to leave her residence and he had not done so. Deputy Palmer, believing that he had probable cause at this point to arrest the plaintiffs' salespeerson for violation of La. R.S. 14:63.3 Entry on or remaining in places or on land after being forbidden. Nevertheless, Deputy Palmer did not arrest the salesperson and instead instructed the salespeople to leave this resident's property. That conversation was recorded on video by the plaintiffs and is present in the record of this matter. The plaintiffs contend they lost money as a result of allegedly being unable to sell vacuums in Jackson parish for a limited period of time. The contention is false because plaintiffs were not disallowed from making in sales in Jackson Parish. Sheriff Andy Brown wrote a letter to plaintffs' counsel stating that explicitly. Furthermore, the plaintiffs sold elsewhere during the time period that they were not working in Jackson Parish, making as much or more money than would have been made had they remained in Jackson Parish. Plaintiffs have the right to do business but must adhere to a homeowner s Constitutional rights to privacy. Page 6 of 11

13 Case 3:14-cv RGJ-KLH Document 50 Filed 11/04/15 Page 7 of 11 PageID #: 938 III. Joint Statement of Jurisdiction: Jurisdiction in this Court is proper pursuant to 28 U.S.C and 1343, insofar as plaintiff s claims are brought under 42 U.S.C and raise questions under this federal law. Jurisdiction and venue are not contested. D. The following facts are stipulated by the parties and require no proof: (Numerical listing of uncontested material facts.) To narrow issues and to eliminate unnecessary witnesses, counsel s best efforts are expected in preparing stipulations. 1. Louisiana Cleaning Systems, Inc. was issued a valid occupational license for the Parish of Jackson in and for the year Louisiana Cleaning Systmes, Inc. was issued a valid occupational license for the Parish of Jackson and for the year Louisiana Cleaning Systmes, Inc. was issued a valid occupational license for the Parish of Jackson for The first incident on October 4, 2013 after about 1:00 p.m. was recorded by Deputy Palmer s body-worn camera. 5. No body-worn camera video footage from the second incident on October 4, 2013, currently exists. 6. The second incident of October 4, 2013, with Deputy Gerald Palmer was recorded by Charles Nugent s cellphone video recorder. E. The contested facts are: (Each issue shall be stated as a concise narrative of each party s contention about each issue; the issue SHALL NOT be offered solely as a question.) (Example: 1. The plaintiff contends the manifold was defective at the time of manufacture. 2. The defendant contends the plaintiff modified the manifold and exhaust system.) 1. The plaintiffs contend that they suffered a financial loss as a result of the incident complained of in this matter. 2. The defendants contend that the Plaintiffs suffered no financial loss as a result of the incident complained of in this matter. Page 7 of 11

14 Case 3:14-cv RGJ-KLH Document 50 Filed 11/04/15 Page 8 of 11 PageID #: The plaintiffs contend that they were prevented from engaging in protected commercial speech as a result of the defendants' actions. 4. The defendants contend that the plaintiffs were not prevented from engaging in protected commercial speech as a result of the defendants' actions. 5. The plaintiffs contend that the Sheriff acted in person to violate the plaintiffs' rights to solicit door-to-door on the date of the incident and during The defendants contend that the Sheriff never, at any time or in any capacity, violated the plaintiffs' rights to solicit door-to-door. 7. The plaintiffs contend that the defendants destroyed other body-worn camera videos. 8. The defendants contend that they had no duty to preserve any body-worn camera videos, if they existed, because any footage that did exist would have been digitally purged pursuant to policy before the defendants had any notice that that the footage would be relevant to any litigation. 9. The plaintiffs contend that the Sheriff failed to train and supervise, and condoned a custom and practice to not allow door-to-door solicitation in Jackson Parish. 10. The defendants contend that the Sheriff did not fail to train and supervise, did not condone a custom and practice to not allow door-to-door solicitation in Jackson Parish, and, furthe, that no such practice existed. 11. The plaintiffs contend that Deputies Wyatt and Simonelli had interactions with the plaintiffs and/or were present at the second October 4, 2013 incident. 12. The defendants contend that Deputies Wyatt and Simonelli never had any interactions with the plaintiffs and were not present at the second October 4, 2013 incident. The contested issues of law to be determined by the Court: (Each issue shall be stated as a concise narrative of each party s contention about each issue; the issue SHALL NOT be offered solely as a question.) F. 1. The defendants contend that they is entitled to qualified immunity for any actions they took in this matter. 2. The plaintiffs contend that the defendants are not entitled to qualified immunity for any actions they took in this matter. Page 8 of 11

15 Case 3:14-cv RGJ-KLH Document 50 Filed 11/04/15 Page 9 of 11 PageID #: The defendants contend that, with reference to the incidents complained of herein, they acted in a way which was justified, reasonable, and legally permissible under the circumstances. 4. The plaintiffs contend that, with reference to the incident complained of herein, the defendants did not act in a way which was justified, reasonable, and legally permissible under the circumstances. 5. The plaintiffs contend that the defendants violated the plaintiffs' 1st and 14th Amendment Rights, and contractual rights. 6. The defendants contend that they did not violate the plaintiffs' 1 st and 14 th Amendment Rights or any contractual rights. 7. The defendants contend that, if they did violate the plaintiffs' 1 st and 14 th Amendment Rights, that those rights were not sufficiently clearly established in these circumstances such as to defeat the defense of qualified immunity. 8. The plaintiffs contend that, if the defendants did violate the plaintiffs' 1 st and 14 th Amendment Rights, that those right were clearly established. 9. The plaintiffs contend that the defendants are personally liable for their personal acts in the initial incident and thereafter in denying Plaintiffs the right to solicit solicit door-to-door and interfering with their rights to solicit door-to-door in Jackson Parish. 10. The defendants contends that they are not personally liable for any actions in the incident complained of herein. 11. The plaintiffs contend that spoliation and an adverse inference jury instruction should be given due to the destruction of Deputy video from Deputy body cams that was not preserved. 12. The defendants contend that an adverse inference jury instruction should not be given because they had no duty to preserve any body-worn camera videos, if they existed, because any footage that did exist would have been digitally purged pursuant to policy before the defendants had any notice that that the footage would be relevant to any litigation. Page 9 of 11

16 Case 3:14-cv RGJ-KLH Document 50 Filed 11/04/15 Page 10 of 11 PageID #: 941 The following depositions and answers to interrogatories will be offered in evidence: (Prior to trial, counsel shall edit from the deposition irrelevant material.) G. Neither party anticipates the use of depositions due to the unavailability of witnesses. Either party may offer any deposition or answers to interrogatories taken or exchanged during discovery in this matter for impeachment purposes. There is no objection to the exhibits on the attached lists, except as follows: (State the basis for any objections as to each exhibit separately.) This is a jury or non-jury case. (In a jury case, indicate whether the jury trial is applicable to all aspects of the case or identify those issues which will be tried by the jury.) Anticipated length of trial is 2-3 days. The issue of liability should or should not be tried separately from that of quantum. H. I. J. K. The undersigned hereby certify that this Pretrial Order has been formulated after faceto-face or telephone conference in which trial counsel for all parties were included. Reasonable opportunity has been afforded to counsel for corrections or additions, prior to signing. Hereafter, this Order shall control the course of the trial and may not be amended except by consent of the parties and the Court, or by the order of the Court to prevent manifest injustice. APPROVED AS TO FORM AND CONTENT: s/ Glenn C. McGovern s/ Timothy R. Richardson Signature of Attorney for Plaintiff Signature of Attorney for Defendant Name: Glenn C. McGovern Name: Firm: Law Office of Glenn C. McGovern Firm: Usry, Weeks & Matthews, APLC Address: 2637 Edenborn Avenue, Ste. 101 Address: 1615 Poydras Street, Ste Metairie, LA New Orleans, LA Page 10 of 11

17 Case 3:14-cv RGJ-KLH Document 50 Filed 11/04/15 Page 11 of 11 PageID #: 942 Telephone: (504) Telephone: (504) ACTION BY THE COURT THE FOREGOING Pretrial Order has been approved by the parties to this action as evidenced by the signature of their counsel hereon, and the Order is hereby entered and will govern in the trial of this case. Monroe, Louisiana, this day of, 20. UNITED STATES MAGISTRATE JUDGE Page 11 of 11