Thinkstream, Inc. v. Rubin

• Court: Court of Appeal of Louisiana
• Writing for the Court: Parro
• Citation: Thinkstream, Inc. v. Rubin, 971 So.2d 1092 (La. App. 2007)
• Decision Date: 26 September 2007
• Docket Number: No. 2006 CA 1595.,2006 CA 1595.
• Parties: THINKSTREAM, INC. and Barry Bellue v. Michael H. RUBIN, Deborah D. Harkins, Emily B. Grey and McGlinchey Stafford, PLLC.

971 So.2d 1092

THINKSTREAM, INC. and Barry Bellue v. Michael H. RUBIN, Deborah D. Harkins, Emily B. Grey and McGlinchey Stafford, PLLC.

No. 2006 CA 1595.

Court of Appeal of Louisiana, First Circuit.

September 26, 2007.

Brent D. Burley, Gonzales, LA, for Plaintiff-Appellant, Barry Bellue.

Richmond C. Odom, Baton Rouge, LA, for Plaintiff-Appellant, Thinkstream, Inc.

James H. Gibson, David J. Ayo, Allen & Gooch, Lafayette, LA, for Defendants-Appellees, Michael H. Rubin, Deborah D. Harkins, Emily B. Grey, and McGlinchey Stafford, PLLC.

Before PARRO, GUIDRY, and McCLENDON, JJ.

PARRO, J.

Plaintiffs, Thinkstream, Inc. (Thinkstream) and Barry Bellue, appeal the judgment of the trial court, dismissing their suit with prejudice pursuant to a special motion to strike in accordance with LSA-C.C.P. art. 971. We affirm.

FACTUAL AND PROCEDURAL HISTORY

This matter involves a suit for damages filed by Thinkstream and Bellue, Thinkstream's president and CEO, against the law firm of McGlinchey Stafford, PLLC, Michael H. Rubin, Deborah D. Harkins, and Emily B. Grey (collectively, McGlinchey). Thinkstream and Bellue allege that they sustained damages as a result of actions taken by McGlinchey in representing a client in litigation against Thinkstream and Bellue. Although the matter before this court involves only the suit against McGlinchey, there were several other proceedings relevant to an understanding of the background of this suit.

The Request for Proposals

In July 2003, the Louisiana Commission on Law Enforcement and Administration of Criminal Justice (LCLE) issued a "Request for Proposals" (RFP) on behalf of the Louisiana Integrated Criminal Justice Information System (ICJIS) and its Policy Board (Board) for the development of a "comprehensive solution to provide Information sharing and data integration across the State's criminal justice community." According to the RFP, each proposal was to be reviewed and evaluated by an evaluation committee (committee). Each Individual committee member was to evaluate the technical sections of the written proposals in light of a set of criteria established by the RFP. The RFP further provided that contract negotiations would be initiated with the bidder whose proposal had received the highest score and was determined to be in the best interests of the state in light of the established criteria.

After the committee established by the Board completed its evaluation of the proposals the pool of bidders was narrowed to three companies based on the average score assigned by the committee to each bidder. Based on these scores, Templar Corporation (Templar) was ranked first, and Thinkstream was ranked third. The top three bidders were invited to give oral presentations before the Board. After hearing the presentations, the Board awarded the contract to Thinkstream, despite the fact that Templar had been ranked first by the committee after it had applied the scoring methodology established by the RFP.

On April 9, 2004, Templar protested the award of the contract to Thinkstream by sending a letter to Michael Ranatza, the Executive Director of the LCLE, in accordance with LAC 34:V.145(8). On April 15, 2004, Mr. Ranatza denied the protest in writing. Shortly thereafter, Templar hired McGlinchey to appeal the denial of the protest, and on April 29, 2004, McGlinchey filed an appeal before the Commissioner of Administration (Commissioner) in accordance with LAC 34:V.145(11). In the petition of appeal, Templar generally contended that the Board had not properly followed the procedures established by the RFP in awarding the contract to Thinkstream. Templar further contended that the Board had improperly applied additional criteria, not established by the RFP, in awarding the contract. In addition, beginning with paragraph 30 of the appeal, Templar requested expedited discovery and an evidentiary hearing. Paragraph 32 of the appeal specifically stated:

Finally, Templar is entitled to expedited discovery to determine whether any Policy Board or the Commission members retained stock ownership in Thinkstream or participated in private meetings regarding Thinkstream, as the "IC-JIC Board Meeting Minutes" attached as Exhibit "8" indicate that Colonel Mike Barnett of the East Baton Rouge Parish Sheriff's Office held stock in Thinkstream.¹⁰ On information and belief a public request for disclosure of Thinkstream's stockholders has been made by the State prior to the release of the RFP.

Footnote 10 provided:

Templar is particularly I interested in this type of discovery due to the recent United States Senate Ethics Committee investigation of a complaint involving retiring Senator Ben Campbell and Thinkstream. In that regard, attached as Exhibit "9" is an article published April 16, 2004, in the Denver Post.

On May 4, 2004, counsel for Thinkstream wrote a letter to Mr. Rubin at McGlinchey, requesting that the appeal be amended to delete paragraph 32 and footnote 10. The letter further stated that counsel had been instructed by his client to file suit immediately to recover damages "for these unwarranted and untruthful allegations" if the requested amendments were not made. Accordingly, on May 5, 2004, McGlinchey filed a motion to amend the appeal petition. Attached to the motion was an amended petition of appeal that did not contain the allegedly offending paragraph and footnote.

On May 20, 2004, the Commissioner issued a ruling, concluding that the Board had not followed the procedures set forth by the RFP in awarding the contract. In so ruling, the Commissioner noted the Board's stated position that the committee acted only in a technical review capacity, and that the Board Itself was to act as the "evaluation committee" established by the RFP with full power to award the contract. However, the Commissioner concluded that there was no evidence that the Board members actually had performed the functions required of the "evaluation committee" by the RFP. Accordingly, the Commissioner vacated the award to Thinkstream and remanded the matter to the Board for further proceedings consistent with the RFP. Rather than award the contract after complying with the procedures established in the RFP, the Board simply abandoned the process and chose to use the funds set aside for the contract for another purpose.

Thinkstream v. Templar

Instead of instituting judicial action to challenge the decision of the Commissioner as authorized by LAC 34:V.145(11), Thinkstream filed suit against Templar on June 21, 2004, based upon Templar's successful appeal of the contract award. In the original petition, Thinkstream alleged that it had suffered tremendous economic damage as a result of Templar's "baseless, arbitrary, and capricious appeal." Thinkstream further alleged that Templar had: (1) intentionally and negligently made misrepresentations about Thinkstream; (2) intentionally and negligently interfered with contract or business relations; and (3) instituted legal proceedings for the sole purpose of delaying the awarding of the contract to Thinkstream until the time limitations of the award had expired or could not be met. Thinkstream also suggested in its petition that Templar had filed its appeal of the contract award at the request of a member of the Board.

In response, Templar filed peremptory exceptions pleading the objections of no cause of action and non-joinder of necessary parties. Before these exceptions were heard, however, Thinkstream amended its petition to add claims for defamation and alleged violations of the Louisiana Unfair Trade Practices Act.¹

After a hearing, the trial court sustained the exceptions and granted Thinkstream fifteen days to amend its petition a second time or face dismissal, with prejudice. The trial court then granted two motions by Thinkstream, each seeking to stay the proceedings for sixty days, to allow Thinkstream an opportunity to retain new counsel and amend its petition. Thinkstream never properly amended its petition; thus, on Templar's motion, the trial court dismissed Thinkstream's suit, with prejudice, on February 15, 2005. Thinkstream subsequently filed a motion for new trial, which was denied by the trial court. Thinkstream then appealed the matter to this court. In an unpublished opinion, another panel of this court affirmed the judgment of the trial court, which dismissed the suit against Templar, with prejudice. Thinkstream, Inc. v. Templar, Inc., 05-1968 (La.App. 1st Cir.12/28/06), 947 So.2d 847 (table), writ denied, 07-0208 (La.3/23/07), 951 So.2d 1106.

Thinkstream v. Rubin

On June 7, 2005,² after the trial court had dismissed the suit against Templar, Thinkstream and Bellue filed this suit against McGlinchey, contending that McGlinchey had defamed them by making certain allegations in the appeal to the Commissioner of the Board's decision.³ On November 3, 2005, McGlinchey filed a special motion to strike the cause of action pursuant to LSA-C.C.P. art. 971, along with a peremptory exception raising the objections of peremption, prescription, no cause of action, and no right of action.⁴ These matters were set for hearing on Monday, January 23, 2006.

On Friday, January 20, 2006, Thinkstream and Bellue filed a combined motion and order for leave to amend their petition to assert additional claims against McGlinchey for abuse of process and conspiracy.⁵ The plaintiffs further requested an expedited hearing on the issue of the amendment, contending that the trial court should allow them to amend their petition prior to hearing McGlinchey's objections and motion to strike.

At the hearing, the trial court decided that it would address the special motion to strike first. The court further determined that it would consider McGlinchey's peremptory exception next, followed by the plaintiffs' motion for leave to amend the petition. After considering the evidence submitted by the parties, the trial court granted the special motion to strike in open court....