Lee, Jr. v. New Orleans Public Belt Railroad Commission for the Port of New Orleans et al

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ELMO LEE, JR. 	* 	CIVIL ACTION NO. 24-342
VERSUS 	* 	JUDGE ELDON E. FALLON
NEW ORLEANS PUBLIC BELT RAILROAD 	* 	MAGISTRATE JUDGE
COMMISSION FOR THE PORT OF NEW 	KAREN WELLS ROBY
ORLEANS, SUCCESSOR OF, AND NEW 	*
ORLEANS PUBLIC BELT RAILROAD
CORPORATION AND PUBLIC BELT 	*
RAILROAD COMMISSION FOR THE CITY
OF NEW ORLEANS 	*
* 	* 	* 	* 	* 	* 	*
ORDER & REASONS
Before the Court is a motion to dismiss pursuant to the Court’s inherent authority based on the
alleged perjury of Plaintiff, Elmo Lee, Jr. (“Lee”), filed by Defendant New Orleans Public Belt
Railroad Commission for the Port of New Orleans (“NOPB”). R. Doc. 56. Lee opposed the motion.
R. Doc. 58. NOPB filed a reply. R. Doc. 60. Considering the record, briefing, and applicable law, the
Court now rules as follows.
I. 	BACKGROUND
This case arises out of personal injuries allegedly sustained by Lee while he was in the course
and scope of performing his job as a conductor with NOPB. R. Doc. 1. In his Complaint, Lee asserts
that on February 7, 2023, he “suffered severe injuries to his right shoulder” when he attempted to step
on a tank car’s sill step. Id. at 5. Before making this step, he alleges he “grasped the grab iron of the
railcar with his right hand and placed his foot into the sill step.” Id. Then, when he pushed into the step,
it “violently swung underneath the walking platform of the rail car, with Plaintiff’s foot still on it.” Id.
Lee brought claims against his employer under the Federal Employer’s Liability Act (“FELA”) and
Case 2:24-cv-00342-EEF-KWR Document 61 Filed 11/10/25 Page 1 of 7

2
the Safety Appliance Act (“SAA”), alleging that NOPB’s negligence and/or violations of the SAA
caused him to sustain these right shoulder injuries. Id. at 10–11.
A pre-trial conference was held in this matter on June 6, 2025. R. Doc. 45. Five days later, the
Court held a telephone status conference at the request of the parties, and on June 16, 2025, the Court
continued the trial without date. R. Doc. 50. The second pre-trial conference will commence on
November 19, 2025, and trial is set for December 1, 2025. R. Doc. 51.
II. PRESENT MOTION
NOPB now asks this Court to exercise its inherent authority to dismiss this matter with
prejudice instead of allowing it to move forward to trial. R. Doc. 56. NOPB bases its request upon
evidence that it represents as exhibitory that Plaintiff engaged in contumacious conduct—namely,
perjury and concealment of information that strikes at the heart of this case—severe enough to warrant
dismissal. R. Doc. 56-1 at 7–8. NOPB avers that after the June pre-trial conference, it uncovered
evidence that Plaintiff injured his right shoulder in a September 2021 car accident—the same shoulder
he claims to have injured in the unwitnessed accident that forms the basis of this suit. Id. at 2–5. NOPB
presses that Plaintiff committed perjury by (1) knowingly providing false and incomplete answers to
interrogatories by not mentioning the 2021 car accident or resulting medical treatment, (2) lying under
oath in his deposition by discussing the 2021 car accident but answering “no” when asked if he was
injured or received medical treatment relative to the injuries sustained in the accident, and (3) failing
to correct his false deposition testimony despite being given an opportunity to do so. Id. at 8–20. The
foregoing, NOPB contends, is the kind of conduct that threatens the integrity of the judicial system,
and the only appropriate sanction would be dismissal with prejudice. Id. at 21–25.
Plaintiff opposes the motion. R. Doc. 58. He construes his alleged perjury as accidental, as
opposed to willful and purposeful. Id. Lee avers that he “candidly answered, to the best he could recall,
Case 2:24-cv-00342-EEF-KWR Document 61 Filed 11/10/25 Page 2 of 7

3
Defendant’s Interrogatories seeking information about medical treatment and claims for bodily injury
damages other than those arising out” of the accident that forms the basis of this suit. Id. at 9. During
the deposition, he not only discussed the 2021 car accident, but he provided NOPB with the name of
his liability insurer—to Lee, this demonstrates that any alleged concealment was not purposeful. Id. at
9–11. Lee also maintains that his “discomfort and nervousness [about] testifying in his first deposition
certainly abrogate[s] any suggestion that he intentionally misrepresented anything.” Id. at 11. Because
dismissal with prejudice is an extreme remedy, Plaintiff asks this Court to allow him to proceed to trial,
where “NOPB . . . [can] cross examine Plaintiff about his inconsistent statements . . . [and] the jury
[can] determine whether and to what extent Lee had ‘willful intent’ to ‘provide false testimony.’” Id.
at 13.
NOPB replied, largely reiterating its initial arguments. R. Doc. 60. It takes the position that
Lee’s proffered explanations for his conduct lacks credence, that he should have reviewed his own
medical history to ensure his discovery responses were as complete as possible, and that
“[n]ervousness is not an excuse for perjury.” Id. at 1–3.
III. LEGAL STANDARD
“[D]ismissal with prejudice ‘is an extreme sanction that deprives a litigant of the
opportunity to pursue his claim.’” Brown v. Oil States Skagit Smatco, 664 F.3d 71, 77 (5th Cir.
2011) (quoting Woodson v. Surgitek, Inc., 57 F.3d 1406, 1418 (5th Cir. 1995)). “Because of the
severity of dismissal with prejudice, [the Fifth Circuit] ha[s] determined that ordinarily such action
will be affirmed only (1) upon a showing of a clear record of delay or contumacious conduct by
the plaintiff and (2) when lesser sanctions would not serve the best interests of justice.” Sturgeon
v. Airborne Freight Corp., 778 F.2d 1154, 1159 (5th Cir. 1985) (internal quotations omitted); see
also Brown, 664 F.3d at 77 (applying this rule). A plaintiff’s conduct will be considered
Case 2:24-cv-00342-EEF-KWR Document 61 Filed 11/10/25 Page 3 of 7

4
contumacious if it shows a “‘stubborn resistance to authority’” rather than “‘a party’s negligence—
regardless of how careless, inconsiderate, or understandably exasperating.” Brown, 664 F.3d at 77
(quoting McNeal v. Papasan, 842 F.2d 787, 792 (5th Cir. 1988)).
If a court finds that plaintiff engaged in contumacious conduct, it must also find that lesser
sanctions would not serve the best interests of justice before deciding to dismiss the matter with
prejudice. Ben E. Keith Co. v. Dining All., Inc., 80 F.4th 695, 702 (5th Cir. 2023). “Lesser sanctions
include assessments of fines, costs, or damages against the plaintiff, conditional dismissal,
dismissal without prejudice, and explicit warnings.” In re Taxotere (Docetaxel) Prods. Liab. Litig.,
966 F.3d 351, 360 (5th Cir. 2020). Importantly, “dismissal with prejudice [is] a more appropriate
sanction when the objectionable conduct is that of the client, and not the attorney.” Brown, 664
F.3d at 77.
IV. DISCUSSION
NOPB asks this Court to exercise its discretionary power to dismiss Plaintiff’s suit with
prejudice because of his alleged contumacious conduct of concealing a prior right shoulder injury. R.
Doc. 56. For the following reasons, the Court declines to exercise its inherent authority to dismiss this
case with prejudice and will instead allow a jury to make credibility determinations as to the veracity
of Plaintiff’s proffered reasons for failing to fully disclose the September 2021 car accident during the
course of discovery.
A. Clear Delay or Contumacious Conduct
The Fifth Circuit will affirm a dismissal with prejudice pursuant to the Court’s inherent power
when the Court shows evidence of a clear history of delay or contumacious conduct by the plaintiff.
Sturgeon, 778 F.2d at 1159. There is no history of delay here. This Court thus evaluates whether
Plaintiff engaged in contumacious conduct so severe as to rise to the level of warranting a dismissal
Case 2:24-cv-00342-EEF-KWR Document 61 Filed 11/10/25 Page 4 of 7

5
with prejudice. The Court finds that the jury is in the best position to evaluate the sufficiency of
Plaintiff’s proffered reasons for misremembering and/or failing to remember the existence of and
facts and circumstances surrounding the 2021 car accident. The Court declines the invitation to
categorize Plaintiff’s conduct as contumacious and take this crucial credibility determination away
from the jury.
NOPB has certainly submitted evidence that Plaintiff was in a car accident in 2021 that
caused injuries to his right shoulder. E.g., R. Docs. 56-4, 56-5, 56-6. NOPB has also directed the
Court to Plaintiff’s interrogatory answers and deposition testimony wherein he either does not
mention, or mentions without explaining the full extent of, his 2021 car accident. E.g., R. Doc. 56-
14, 56-15. But what is missing from the record before this Court is evidence that Plaintiff willfully
and maliciously withheld information about the 2021 car accident in order to deceive the Court
and further his pecuniary interests.
The Fifth Circuit’s opinion in Brown v. Oil States Skagit Smatco is exemplary of the kind
of behavior and statements that can be taken at face value by a district judge as clearly
contumacious. 664 F.3d 71 (5th Cir. 2011). In that case, the plaintiff had filed two lawsuits against
his employer: one personal injury suit, and one Title VII suit. Id. at 73–74. The Fifth Circuit
explained that “[i]n his personal injury lawsuit, [plaintiff] testified under oath that he left his job
. . . solely because of his back pain related to an accident.” Id. at 78. It went on: “In the instant
Title VII lawsuit, [plaintiff] testified under oath that he quit his job . . . solely because of racial
harassment and life-threatening activity related to the harassment.” Id. Moreover, there was
evidence that the plaintiff failed to mention racial harassment in his personal injury claim and
similarly failed to mention his personal injury in his Title VII claim. Id.
Case 2:24-cv-00342-EEF-KWR Document 61 Filed 11/10/25 Page 5 of 7

6
The Fifth Circuit found that the district court did not abuse its discretion in dismissing the
suit with prejudice because the plaintiff “deceitfully provided conflicting testimony in order to
further his own pecuniary interests in the two lawsuits and, in doing so, undermined the integrity
of the judicial process.” Id. Lee’s conduct here is not so clearly purposeful. NOPB represented in
its motion, and Plaintiff does not dispute, that he disclosed his 2021 car accident for the first time
during his deposition. R. Doc. 56-1 at 17; 58 at 9. The fact that he disclosed the accident’s existence
at all distinguishes Lee’s conduct from the purposeful, demonstrable omission of certain facts in
the Brown plaintiff’s two depositions.
Moreover, that Lee provided NOPB with other truthful information, such as disclosing his
liability insurer, weighs against a finding that Plaintiff maliciously withheld information. By
providing NOPB with his car insurance provider, he opened the door for NOPB to obtain its
records, including the medical records relative to the 2021 car accident and other documentation
that could have exhibited his prior right shoulder injury. Plaintiff also provided the name of his
attorney, detailed that his insurer paid him for property damage, acknowledged the existence of a
police report, and explained that Plaintiff had to recover from his uninsured motorist coverage
because the other driver was uninsured. See R. Doc. 56-15 at 6–8; 56-3.
During his deposition, Plaintiff did answer “no” to each question of whether he saw any
doctors after that incident and whether he was “hurt” as a result of the 2021 car accident. R. Doc.
56-15 at 6–8. But Plaintiff shed light on factors that could have contributed to his misremembering
during a July 2, 2025, hearing at New Orleans Public Belt. When asked about his memories of the
treatment he received post-2021 accident, Plaintiff explained that “[w]hat I’m saying to you all is
that I did not feel one ounce of pain after I did this. I went to a Chiropractor. . . . I did go and I was
fine, I didn’t miss a beat at work.” R. Doc. 56-9 at 11–12. Moreover, Plaintiff described
Case 2:24-cv-00342-EEF-KWR Document 61 Filed 11/10/25 Page 6 of 7

7
remembering hearing that the post-accident MRI results “sa[id] that rotator is normal, sir, [and] I
went directly off of that because like I said, I didn’t feel any pain.” Id. at 10. The foregoing
testimony does not contain the sort of pointed, purposeful, malicious omission of detail that was
exhibited by the plaintiff in Brown. Instead, the foregoing creates a fact question for the jury as to
whether it is credible that Lee perceived his past in this way and failed to remember, or recall
details pertinent to, the 2021 car accident.
NOPB failed to demonstrate that Plaintiff made willful misstatements and omissions that
demonstrate 	a 	“stubborn 	resistance 	to 	authority,” 	constituting 	contumacious 	conduct 	and
warranting this Court’s evaluation of whether to dismiss this case with prejudice or impose lesser
sanctions. Brown, 664 F.3d at 77. Instead, NOPB submitted evidence of Plaintiff’s negligence, and
however “careless, inconsiderate, or understandably exasperating” Lee may have been, on the
record here, the Court cannot conclude that Lee’s conduct warrants the exercise of the extreme
sanction of a dismissal with prejudice. The jury can weigh Lee’s credibility at trial.
V. CONCLUSION
Considering the foregoing;
IT IS ORDERED that the motion to dismiss filed by the New Orleans Public Belt Railroad
Commission for the Port of New Orleans, R. Doc. 56, is DENIED.
New Orleans, Louisiana, this 7th day of November, 2025.
THE HONORABLE ELDON E. FALLON
Case 2:24-cv-00342-EEF-KWR Document 61 Filed 11/10/25 Page 7 of 7