Ellis v. Clarksdale Public Utilities

CourtCourt of Appeals for the Fifth Circuit
DecidedMay 8, 2023
Docket21-60885
StatusUnpublished

This text of Ellis v. Clarksdale Public Utilities (Ellis v. Clarksdale Public Utilities) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ellis v. Clarksdale Public Utilities, (5th Cir. 2023).

Opinion

Case: 21-60885 Document: 00516742056 Page: 1 Date Filed: 05/08/2023

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED May 8, 2023 No. 21-60885 Lyle W. Cayce ____________ Clerk

Bruce Ellis, doing business as Delta Cinema; Willie Ellis, doing business as Delta Cinema,

Plaintiffs—Appellants,

versus

Clarksdale Public Utilities; Clarksdale Public Works; City of Clarksdale,

Defendants—Appellees. ______________________________

Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:20-CV-32 ______________________________

Before Higginbotham, Southwick, and Willett, Circuit Judges. Per Curiam: * Bruce and Willie Ellis (“Plaintiffs”), doing business as Delta Cinema, filed a pro se § 1983 lawsuit against the City of Clarksdale, Mississippi, Clarksdale Public Utilities, and Clarksdale Public Works (“Defendants”). Plaintiffs asserted a Fifth Amendment inverse condemnation claim, alleging that Defendants’ transport of raw sewage and storm water across their _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 21-60885 Document: 00516742056 Page: 2 Date Filed: 05/08/2023

No. 21-60885

private property caused damage for which they were not justly compensated. On appeal, Plaintiffs challenge the district court’s rulings on several motions, along with its grant of summary judgment to Defendants. We AFFIRM. I The parties dispute the facts that led to this litigation. In their complaint, Plaintiffs allege that Defendants’ operation and repair of the City’s sanitary sewer and storm water drainage system created a 17-foot hole under their business, Delta Cinema, causing damage such as “mold, rot, rust, decay, and erosion of soils.” Plaintiffs sued Defendants under 42 U.S.C. § 1983 for monetary damages, arguing that Defendants’ actions constituted a taking under the Fifth Amendment. Defendants assert that the only work performed on the property was the lining of piping that ran under the Delta Cinema and the subsequent testing of the piping. Defendants also contend, through their expert witness, that “there is no action or inaction by [Defendants] . . . that would explain any of the detrimental effects to the [P]laintiffs’ property alleged in their complaint.” The record below contains a multitude of motions, mostly from Plaintiffs. Before engaging in substantive discovery, Plaintiffs moved for summary judgment. One week later, they filed a supplemental motion for summary judgment, which included twenty photos without any explanation of what they depict. 1 The district court denied both motions on the basis that Plaintiffs failed to establish municipal liability. Due to the technical nature of the case, Defendants jointly designated engineer Blake Mendrop as an expert witness. Plaintiffs, however, failed to properly designate any expert witnesses or produce any expert reports before

_____________________ 1 The images appear to depict piping and holes, presumably near the Delta Cinema.

2 Case: 21-60885 Document: 00516742056 Page: 3 Date Filed: 05/08/2023

the deadline set by the court’s scheduling order. After the deadline passed, Plaintiffs filed a Daubert motion to exclude Defendants’ expert. Relying on the expert testimony of Blake Mendrop, Clarksdale Public Utilities filed a motion for summary judgment, which was joined by the City of Clarksdale. The City of Clarksdale and Clarksdale Public Works filed their own motion for summary judgment, submitting in support an affidavit from Arch Corley, the City Engineer for the City of Clarksdale. Approximately three weeks after the court’s deadline to file dispositive motions, Plaintiffs filed a motion for judgment on the pleadings, along with a supplemental motion for judgment on the pleadings. The court struck both as untimely. With a plethora of motions before it, the court entered a Memorandum Opinion which denied all the evidentiary motions, including Plaintiffs’ Daubert motion. The court also granted Defendants’ summary judgment motions, reasoning that Plaintiffs failed to create a factual dispute by neglecting to refute the opinions of Defendants’ experts that Defendants did not cause the alleged damage. Plaintiffs timely appealed. Liberally construing their appellate brief, Haines v. Kerner, 404 U.S. 519, 520 (1972), Plaintiffs argue that: (1) the district court abused its discretion by striking Plaintiffs’ motion for judgment on the pleadings based on timeliness; (2) the district court abused its discretion by denying Plaintiffs’ Daubert motion based on timeliness; and (3) the district court erred by denying Plaintiffs’ summary judgment motion and granting summary judgment to Defendants. 2

_____________________ 2 In addition to the arguments listed, Plaintiffs repeatedly and confusingly argue that Defendants are subject to a “strict liability” standard. We do not address this

3 Case: 21-60885 Document: 00516742056 Page: 4 Date Filed: 05/08/2023

II We review the district court’s denial of a Federal Rule of Civil Procedure 12(c) motion for judgment on the pleadings for lack of timeliness under an abuse of discretion standard. See Argo v. Woods, 399 F. App’x 1, 2– 3 (5th Cir. 2010) (per curiam); e.g., accord United States v. Dabney, 42 F.4th 984, 989 (8th Cir. 2022); United States v. Soto, 794 F.3d 635, 655 (6th Cir. 2015); United States v. Smith, 918 F.2d 1501, 1509 (11th Cir. 1990). We also “review the admission of expert testimony for an abuse of discretion.” Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 199 (5th Cir. 2016). “We review a grant of summary judgment de novo, viewing all evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor.” Pierce v. Dep’t of the Air Force, 512 F.3d 184, 186 (5th Cir. 2007). “Summary judgment is proper only if the pleadings and record materials reveal no genuine issue as to any material fact.” Renwick v. PNK Lake Charles, L.L.C., 901 F.3d 605, 611 (5th Cir. 2018). III A First, the untimely motions. To assist in the speedy and efficient resolution of cases, Federal Rule of Civil Procedure 16(b) requires courts to enter a scheduling order that “limits the time to join other parties, amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 16(b)(3)(A). Once in place, the scheduling order may only be modified “for good cause and with the

_____________________ argument because it does not fit within the theory of liability Plaintiffs set forth in their complaint.

4 Case: 21-60885 Document: 00516742056 Page: 5 Date Filed: 05/08/2023

judge’s consent.” Fed. R. Civ. P. 16(b)(4).

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Ellis v. Clarksdale Public Utilities, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-clarksdale-public-utilities-ca5-2023.