morning i'm tom hogan i'm here on behalf of mr david moore this case started out with multiple claims and multiple parties but what we're here today about is the they  mr dennis crocker the case was briefed ascension late on whether there was a sufficiency of evidence in support of the defendants motion for summary judgment but the problem with the case is that the district court judge decided the case based on rule did to six the most of or some of the role fifty six motion for summary judgment ruled without taking into consideration the two thousand and ten amendment to rule fifty six the district court was obviously unaware of the two thousand and ten amendment because in the district court's opinion the district judge stated that the own motion also denied mr moore an opportunity to cure the objection if you're right did that more this contract and some of this other evidence should have been considered at summary judgment  if we would agree to that and no idea if we would or not but assuming we would would you tell us to shoot would you recommend we remained and have the district court look at it all the evidence in the first instance or would should we just look at it and and resolve the motion here i would suggest that the court remained for fork and for consideration in light of rule sixty s rule fifty six in its present form it was amended at two thousand and ten and it really has not caught on in the in the at the district court level in fact this court in a case that was decided on june the ninth two thousand and seventeen the panel was judge regular judge hines and just cost to yourself  lay versus the offshore logistical and transport case and that case is almost identical to our case here before us today obviously if mr moore afforded the opportunity to cure the objections that were made to his a member of the step one would be he can verify his complaint we have a we have a sixty six page complaint full of factual allegations that the court has centered on numerous motions to dismiss the court develops develop the factual narrative in it in the in the in the motions to dismiss that came before it on several occasions so in this case you have you have the district court that has already prepared an extensive factual narrative strictly at what was before it at the time and i understand what has been said here this morning is that it's not the court's burden to go sifting through the record looking for evidence but the same time the court cannot  disregard factual conclusions that it's already made a course i know it was on a motion to dismiss but nobody in this case disagreed with any of those statements and it's a well played complaint i mean in civil rights cases the burden is on the plaintiff now to to to put in a well pleaded complaint and that's what we did we played facts and we played the facts that we believe we will be able to prove a truck what did you lead to in the contract that would give the relief well what's in the contract you're on it is an extensive is an extensive discussion of the rules that are imposed by the far board on each of the other departments ok there's there's rules that sort of postponed them but not their equipment mine that's about the maintenance of their facilities there's an extensive employment policy in there it provides for like for example there's a drug policy mandatory testing of an employee who's involved in an accident there's a sexual harassment policy there's a discipline policy effect there's a policy in there for an investigation if someone has a complaint against a an employee up to one of these fire companies that's contracting with the district there's a procedure for the district to investigate that complaint effect it's alleged in here in this case that an investigation was underway mr moore had been informed that there was going to be an investigation but he was never afforded the opportunity to make a written response or to even be a full informed in writing of the charges that were against into contracts given their right to do it yes or in the in the disciplinary in the roles in the in the part of that contract that provides for the investigation it does provide that the employee is to be afforded written notice of the charges and an opportunity to respond to them and the but that's the same contract that says that the firefighter is not an employee of the district or the parish and it's a that well that's that is a requirement that the district imposes on its contracting companies ok they make them sign a document the says that this is not constitute you know you're not constituted as an employee of the fire district but the whole point we're making is that you're just saying that doesn't mean what it say it says that which is saying i'm saying that it's a requirement that the farmer who are imposes on the fire companies ok they make they make the fire protection services throughout this parish and this is the way we operate we have the tax money that comes in and then we contract with these various companies to provide the flyers protection services and designated areas now they have to have our approval to be so why wouldn't the district court's failure to admit it be subject to a harmless error analysis well it could hardly be a harmless error your honor if it's been overlooked completely because the hope exists on the the whole basis of the decision is that we were unable to prove that we had any standing to write is this argument ok the district court essentially bought the argument that the far board put forward that mr crocker was not mr morris boss ok that they kept saying that my crocker was not his boss they just kept saying that markets ain't got no no well but again your honor it's just like what you pointed out earlier didn't say crocker wasn't his bombs he take his gun if he wants you to come up to the office he's going to go up there but there were things that mr crocker wanted him to do that he just didn't do it never right and also mr crocker tried to pin the austin davis twenty five fire chief of the independence volunteer fire department know that the other requirement is watched that he that that the district have the power to select a point to provide and discharge he it's shows the position he was applying for and they're blanks on there for approval by the fire board so everybody gets hired and individual agencies like the volunteer fire department they have to be approved by the board and the board sets their salary and the board can remove them also that's what was going on with this investigation it was taking place and they do a lot of that the board was actively involved in having him remove what's the evidence on how your client's hiring i mean i know you referred to this higher slip but what's the evidence on what actually happened when he got hired who selected him who approved it the evidence is that mr crocker mr crocker picked him mr crocker handpicked him to be the chief of the combine the parts that went up and won independence and the town of independence had its own fire department there was also the independence volunteer fire department all right so the deal was independence was going to close its fire department and the independence the town of independence firefighters were becoming poured by the volunteer fire department and mr moore would become the new fire chief mr crocker was being promoted he was moving up to become the district administrator and i would just submit that again going back to the standard that the district court employed by the district judge sided to a case that's mentioned in the in the in in the in the in the in the court's willingness on the part of congress to to bring some more sense of justice into the summary judgment practice because typically in employment in an employment discrimination case if you f a complaint alleging employment discrimination you know that you're going to get it and it's it's up to this court i believe to let the let the word go out that the court understands and appreciates the agreements to rule fifty six and instructs the district courts to abide by roe fifty six in its present form in this case should be vacated  does not contain admissible complete executed evidence to create a factual dispute now this court you know was argued that the twenty thirteen contract should be admitted for summary judgment purposes but what  there's a cooperative endeavor agreement between district two in the i v f d and it's not in the record at all there are other cooperative endeavored remains in the record between district two and other volunteer fire departments but the terms and conditions  each of those cooperate endeavor agreements are different so there's no way to evaluate based on the record whether or not you're not conceding that there's some other volunteer fire department with which you have an agreement that would indicate that those firemen are in fact employees of the parish absolutely not your honor pursuing me so you're saying a different but the the crux of the argument here is whether or not he's an employee of the parish united saying there's any agreement that would have been is that right there well there's nothing to show that but even so the twenty thirty contract if that their argument the twenty thirteen contract apparently shows this employment relationship then in that case it's incomplete as to the i v f d because the cooperate endeavor agreement isn't even in the record but no there is no employment relationship the undisputed corporation and mr maher multiple times in the record actually is alleged that mr maher was an at will employee for this private nonprofit corporation it has never been conceded as alleged in the briefing that mr maher was an employee of a public body he is it has always been stated that he was an at will employee if he need to get approval from the department that did but that doesn't go to who has the authority but but the issue of your honor is did they actually in the hiring process the idea of d or the fire chief depending on who was being hired for the idea of b d that person was hired and so the issue is that district two was just getting this approval so they could not even purposes figure out that seven percent of the budget that was allocated to the ib f t whether that amount was being properly spent you don't think the question is whether the parish district had the authority to decide whether someone should be hired using it's just i think they in fact exercise that your honor i don't think there's anything in the record to show that they had that  ty necessarily the hiring form was for auditing purposes that's what's in the record who made it crocker have anything to do with the decision to far from the point of the not that i've seen your own what i've seen is deposition testimony and i've seen declarations that have no relevance for example there's a declaration from just the moral of the law and your volunteer fire department that i did want to bring up in this argument regarding paragraph eight of the twenty thirty three to the extent that this court may consider that contract paragraph eight states that all applicants just sign a contract including a waiver acknowledging that they are cognizant that upon hiring they will be employees of the respective fire department not an employee of the parish attention or the district so the contract itself the understanding from the terms of the contract itself never mind the fact that it's incomplete and authentic heated and executed we don't even know if this is the final contract that was entered into it considers that those employees of the private nonprofit corporation are not employees of the district and this distinction notably multiple with the louisiana record have noted this distinction between municipal municipally run fire departments and private nonprofit corporations that run fire departments i refer this court to the louisiana court of appeals decision from the fifth circuit in hinds first the city of gretna in one nine hundred ninety six case in that case the issue was whether the city of operated a regularly paid fire department to allow the police department to be subject to a civil service system so the issue was did the city rather regularly pay fire department the court looked at the fact that the fire department for the city of gretna was run by two private nonprofit corporations and those two private nonprofit corporations received a fixed monthly fee from the city of gretna now all of the employees from those nonprofit corporations were paid directly by the corporations not by the city the louisiana fist circuit noted that even though the bulk of the budget for those nonprofit corporations came from the city of gretna that was not sufficient to find that the city of gretna ran a regularly paid fire department so essentially what louisiana allows is they allow municipalities to contract with  nonprofit corporations to run fire departments now notably in hinds the louisiana fifth circuit also made note of the recognition by the delegates in the one nine hundred seventy three constitutional convention to the nine seventy four amendment to the louisiana constitution the delegates express he recognized that volunteer fire departments such as the idea of d c were distinct from municipal run departments so these are two shows how much control district you had in that would be none your honor but they have enough to fire somebody farted the idea of the fire here on and we're not approved by the district your honor according to mr maher's undisputed two thousand and ten says something has to be authenticated at the summary judgment stage like at the trial of course it does but yes your honor to be quite honest i did not particularly look at the two thousand and ten amendment and the change the summary judgment calls between that  time i will tell your honor if you look at the case opposing counsel cited from june the maritime casely no your honor it was not cited in the briefs i did not know to take a look at it until it was mentioned this morning an argument the only case that  could have introduced that but quite simply it was not introduced and therefore there was no factual dispute placed in the record the only the only documentation place in the record was that twenty thirteen contract in the unauthenticated and signed incomplete form and further you know to my knowledge that the twenty thirteen contract in full could have been requested for production during discovery i don't see it in the record i'm not sure if it was requested  dispute here alternately the other agreement not being in the record just shows that there are no issues before this court that everything before this court in terms of mars deposition testimony in terms of in terms civil service isn't the real question is whether this position this one position of chief the plaintiff whether the right of selecting appointing supervising in discharging him was vested in district in the parish right district yes your honor that that's really the narrow focus it's i'm not sure what why do we need to get into this bigger employee test that we see in a generally provides another context i wonder that as well your honor might my mindset would be that louisiana revised at two thirty three twenty five forty one apply controls or act your honor i do agree with that for this particular position selection supervision except or it was was based there was authority in the parish district you're out no issues and to the extent that explain to me again how do you get around the fact that approval for hiring and significant purchases had to go through the parish district it was for auditing purposes your honor it was not for any sort of control of the district judges caulker students declaration he did not tell you know each individual volunteer fire department how to operate he did not tell them who they could hire when they should hire when they should fire you know he purposes that there's no question tax dollars going to they have a that's correct your honor and so the auditors are you saying we're interested in tracking how the tax dollars were being spent that books report things but why do you have to say i need approval to do this that that gives the parish control over whether to hire someone or to make a purchase be on it but they can say you know what's going to bust our budget don't hire this firefighter right you're on that list i understand where you're coming from you're on in terms of the budgeting purposes but the actual facts show that the district you did not exercise any sort of control saying yes you need to hire this person no you don't need to hire this person that was never said all that happened is that the form was submitted this approval the highest form was just submitted so that they could have proper records in order to show where the money was going to the approve hiring in fact you haven't even even to say that the issue is that they did not exercise any sort of authority so so there's this why does that mean that out of the paralegal example so arms every year right and there's all kinds of paperwork that has to get submitted up the chain of command i think it ends up in d c somewhere and they have to approve that we're filling these spots and hiring i've never had them say oh you can hire three people or four people for next year but they couldn't i could get a notice tomorrow that said you know what because of the budget you're down to two lock looks for next year doesn't that mean they have that power even if they haven't exercised it over the last twenty years i can understand your your hypothetical your honor i think i think the issue is though is is we simply do not have anything in the record to show whether or not when it came down to it whether or not district you could say that there's nothing to show that all there no record michel is that do you get more you know would say a lot i'm going to hire someone to send a form of to district two and district two would come back and say you know no you can't do that he just he never had any problems getting approval always you know that's all we have in the record found that even when a municipality contract with a nonprofit corporation that is that there is a contract in effect between the two that does not make the nonprofit corporation running a you know or does not meet the municipality running volunteer fire department was operated by its members rather than the municipality so even when there was a contract it was run by the members and that's what happened here the idea d was run by its members the i he had control over its own funds to fund raisers and donations and it chose to purchase equipment through a vote of its employees the idea dean had the right there with fire chief to choose how it responded to calls david mar testified about this in two thousand and twelve he changed the way that the idea of responded to medical calls dennis crocker did not agree but martin not change his his revision to the policies because crocker was not his boss and so ultimately what it comes down to your honor is that david marr is the fire chief had control over the day to day operations of the i d f he not district to david martin not testify the does set him you have to do this or you have to do that they were recommendations that he did not have to follow and nothing bad happened to him when he did not follow his recommendations additionally the rights of hiring and briefly your honor the the copley the court is is is it's got the it's got the issue it's the authority to approve just like you said judge it's the authority to approve the fire district has the authority to approve sixteen of the complaint in september of two thousand and twelve crocker approached the plaintiff and told mr morris that proc or would be hired by the district as an administrator crocker offered mr maher the position of fire chief of the f d a under the new regime which would be implemented only before january first two thousand and thirteen it goes own decided that that mr moore accepted the position yes it's true that mr crocker selection of mark to be the chief of the independence volunteer fire department was later ratified by the volunteer fire department board of directors yes it was and it's also true that his selection of mark to be the chief of independence volunteer fire department was approved by the fire by the fire board  and we make the statement in the brief that it's it goes beyond auditing purposes they're controlling the payroll they require these volunteered departments to provide payroll information they want a list of everybody their social security numbers of what they're being paid and that has to be submitted that has to be submitted periodic late in order for the district to make an order for the department to draw down the funds to pay its payroll it has to show the district who's working for them and how much they're being paid  everything that he put in this complaint every factual assertion that he made in this comply can be can be verified because he's testified you know if he stayed in his complaint that crocker offered him the job he can certainly ok rule thirty six and the part that i was kind of i was interested in particularly was about subsection row fifty six subsection eight that's what i was i typed in my search engine to come up with cases that that had mentioned fifty six eight and i didn't get anything so then i back it out fifty six two thousand and fifteen forward and that's when the that's when the lead case came up and i don't know if this panel is moore the opportunity to correct what the district court found to be a deficiency concerning the admissibility of as of his evidence and it was not a harmless error it was it was a fatal mistake and the case must be remain at the district court for further proceedings if there are no other questions i'll sit down thank you but will take this matter