Firnist Alexander v. Kern Reese, et al

Filing

UNPUBLISHED OPINION FILED. [16-31176 Affirmed] Judge: PEH, Judge: ECP, Judge: CH. Mandate pull date is 08/11/2017; denying as moot motion to substitute party filed by Appellee First National Bank Commerce Bank [8536714-2] [16-31176]

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Date Filed: 07/21/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-31176
Summary Calendar

United States Court of Appeals
Fifth Circuit

FIRNIST J. ALEXANDER,

FILED
July 21, 2017
Lyle W. Cayce
Clerk

Plaintiff–Appellant,
v.
HONORABLE KERN REESE; ESQUIRE T. COLLETTE WHITE; ESQUIRE
COREY PIERCE; ESQUIRE KEN LEDOUX; FIRST NATIONAL BANK
COMMERCE BANK,
Defendants–Appellees.

Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:16-CV-3556
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
Firnist J. Alexander brought 42 U.S.C. §§ 1983 and 1985 claims against
Judge Kern Reese, T. Collette White, Corey Pierce, First NBC Bank, 1 and Ken

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

On appeal, Alexander identifies this party as “First National Bank Commerce Bank.”
However, First NBC Bank has stated that no such entity exists and that the action was
originally brought against First NBC Bank.
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LeDoux (collectively, “Appellees”), alleging that they conspired to deprive him
of due process in connection with his aunt’s succession proceeding. The district
court granted Appellees’ motions to dismiss. We AFFIRM.
I. BACKGROUND
In 2011, while his aunt, Gwendolyn S. Walker, was still living, Firnist J.
Alexander filed an interdiction proceeding in the Civil District Court for the
Parish of Orleans. The matter was randomly assigned to Judge Kern Reese.
After Walker passed away in July 2013, Alexander, who was one of Walker’s
heirs, filed a succession proceeding in the Civil District Court and moved to be
named as administrator of Walker’s estate. The succession was randomly
assigned to Judge Michael Bagneris, but because Judge Reese had presided
over the prior interdiction proceeding, Judge Bagneris transferred the
succession to Judge Reese pursuant to Article 253.2 of the Louisiana Code of
Civil Procedure and Appendix 9.3 of the Rules for Louisiana District Courts. 2
In addition, Alexander’s sister, Margaret Alexander Williams, filed an affidavit
arguing that Alexander should not be appointed as the independent
administrator of Walker’s estate. Judge Reese appointed a succession attorney,
T. Collette White, as the provisional administrator. Corey Pierce served as
White’s counsel.
In accordance with Louisiana rules, White deposited the succession
funds into a checking account at First NBC Bank. Ken LeDoux served as the
bank’s counsel. Alexander filed several motions with the Civil District Court
over the course of the succession proceeding, including multiple motions to
have White removed as administrator and to have Alexander take her place.
White was not removed as administrator. Judge Reese granted various
continuances and held multiple hearings in connection with the succession.

2

The transfer order indicated that Alexander did not object.

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Alexander alleges that at one hearing, White presented Judge Reese with bills
that she had previously represented had been paid. Alexander also claims that
White filed a false accounting with the court as well as fraudulent succession
petitions for his grandmother and uncle.
In 2015, Alexander filed a motion to recuse Judge Reese, arguing that
Judge Reese did not have jurisdiction over the proceeding and was biased in
appointing White as administrator and failing to hear his motions to remove
her. Judge Ethel Julien subsequently denied the motion, holding that the
transfer of the succession from Judge Bagneris to Judge Reese “was
appropriate under the applicable codal article and rules of court,” that Judge
Reese “exercised the powers granted to him by C.C.P. articles 3111 and 3112
and appointed Ms. White as Provisional Administrator of the Succession,” and
that Judge Reese “had good grounds for the decisions he has made and the
continuances he has granted.”
Before Judge Reese could hold any further hearings, Alexander filed a
pro se action in federal district court under 42 U.S.C. §§ 1983 and 1985. He
claimed that Appellees conspired to deprive Walker’s heirs of their property by
impeding the progress of the succession and thereby deprived Alexander of his
rights under the First, Fifth, and Fourteenth Amendments. Alexander also
filed a motion seeking to have the funds from Walker’s succession deposited
into the federal district court’s registry, which the district court subsequently
denied. Appellees moved to dismiss Alexander’s lawsuit. Alexander then
moved to strike Pierce’s motion to dismiss, arguing that Pierce’s answer had
not been timely filed. The district court granted Appellees’ motions to dismiss
and held that Alexander’s motion to strike was moot because the district court
had granted Pierce leave to file his motion to dismiss. This appeal followed.
Alexander now argues that the district court erred by dismissing his § 1983
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claims against Appellees, by not requiring the succession funds to be deposited
in the district court’s registry, and by denying his motion to strike. 3
II. DISCUSSION
A.

Claims Against Judge Reese
We review “motions to dismiss pursuant to Rule 12(b)(6) de novo,

‘accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiff.’” Ibe v. Jones, 836 F.3d 516, 524 (5th Cir. 2016)
(quoting Toy v. Holder, 714 F.3d 881, 883 (5th Cir. 2013)). The Supreme Court
has made clear that “generally, a judge is immune from a suit for money
damages.” Mireles v. Waco, 502 U.S. 9, 9 (1991). “[J]udicial immunity is not
overcome by allegations of bad faith or malice, the existence of which ordinarily
cannot be resolved without engaging in discovery and eventual trial.” Id. at 11.
Instead, “immunity is overcome in only two sets of circumstances. First, a judge
is not immune from liability for nonjudicial actions, i.e., actions not taken in
the judge’s judicial capacity. Second, a judge is not immune for actions, though
judicial in nature, taken in the complete absence of all jurisdiction.” Id. at 11–
12 (citations omitted).
In determining whether a judge’s actions were “judicial in nature,” we
consider four factors:
(1) whether the precise act complained of is a normal judicial
function; (2) whether the acts occurred in the courtroom or
appropriate adjunct spaces such as the judge’s chambers;
(3) whether the controversy centered around a case pending before
the court; and (4) whether the acts arose directly out of a visit to
the judge in his official capacity.

Although he does not seem to press the issue on appeal, to the extent that Alexander
attempts to appeal the dismissal of his § 1985 conspiracy claim, we affirm for the reasons
given by the district court.
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Malina v. Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993). In his complaint,
Alexander alleged that Judge Reese took numerous actions in bad faith during
the pendency of the succession proceeding. But all of the alleged actions were
part of the normal judicial function, occurred in the courtroom or Judge Reese’s
chambers, centered on the succession proceeding pending before the court, and
arose directly out of Alexander’s visits and interactions with Judge Reese
during various hearings relating to the succession. Therefore, it is clear that
Judge Reese’s actions were judicial in nature.
Alexander also argues that Judge Reese is not entitled to judicial
immunity because he completely lacked jurisdiction over the succession
proceeding after it was transferred to him from another judge. “Where a court
has some subject-matter jurisdiction, there is sufficient jurisdiction for
immunity purposes.” Malina v. Gonzales, 994 F.2d 1121, 1125 (5th Cir. 1993).
Article 253.2 of the Louisiana Code of Civil Procedure states that in general,
“[a]fter a case has been assigned to a particular section or division of the court,
it may not be transferred from one section or division to another section or
division within the same court.” 4 But Article 253.2 also includes an exception,
which indicates that “the supreme court, by rule, may establish uniform
procedures for reassigning cases under circumstances where an expeditious
disposition of cases may be effectuated.” Consistent with that exception, Rule
9.3 of the Rules for Louisiana District Courts provides that “[t]he method of
allotment for each district court is set forth in Appendix 9.3,” which in turn
provides that in the Civil District Court for the Parish of Orleans, “subsequent
but related cases should be transferred to the division to which the original

Each judge on the Civil District Court for the Parish of Orleans presides over a
separate division.
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case was allotted, whether or not such earlier case is still pending.” 5 Because
Judge Reese presided over the original case (Walker’s interdiction), the
subsequent case (Walker’s succession) was properly transferred to Judge Reese
in accordance with Article 253.2, Rule 9.3, and Appendix 9.3. Thus, Judge
Reese properly exercised jurisdiction over the matter under Louisiana law.
In summary, we hold that Judge Reese was acting within his judicial
capacity and had jurisdiction over the succession proceeding. The district court
did not err in granting Judge Reese judicial immunity.
B.

Claims Against the Other Defendants
As previously noted, we review “motions to dismiss pursuant to Rule

12(b)(6) de novo.” Ibe, 836 F.3d at 524. “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. We “apply less stringent standards to parties
proceeding pro se than to parties represented by counsel,” but they “must still
brief the issues and reasonably comply with the standards” of Federal Rule of
Appellate Procedure 28. Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (per
curiam). In a § 1983 action, a court must determine “whether the two essential
elements . . . are present: (1) whether the conduct complained of was committed
by a person acting under color of state law; and (2) whether this conduct
deprived a person of rights, privileges, or immunities secured by the
The Rules for Louisiana District Courts have been adopted by the Louisiana
Supreme Court. First Bank & Trust v. Simmons, 165 So. 3d 1025, 1038 (La. Ct. App. 2015).
In First Bank & Trust, a Louisiana court of appeal held that “interdivisional transfers [are]
permitted by a Supreme Court rule” (i.e., Rule 9.3) and are thus proper under Article 253.2.
Id. at 1035.
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Constitution or laws of the United States.” Parratt v. Taylor, 451 U.S. 527, 535
(1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986).
The district court held that Alexander could not maintain § 1983 claims
against White, Pierce, First NBC Bank, and LeDoux because Alexander did
not “have a viable § [1983] claim against Judge Reese . . . due to Judge Reese’s
judicial immunity.” This reasoning was erroneous. “Private persons, jointly
engaged with state officials in . . . challenged action, are acting ‘under color’ of
law for purposes of § 1983 actions.” Dennis v. Sparks, 449 U.S. 24, 27–28
(1980). Thus, when private parties conspire with a judge, “it is of no
consequence . . . that the judge himself is immune from damages liability”—a
plaintiff can still bring a § 1983 action against those private parties. Id. at 28–
29. The claims against White, Pierce, First NBC Bank, and LeDoux should not
have been dismissed simply because Judge Reese was entitled to judicial
immunity.
Nevertheless, Alexander has failed to state claims upon which relief may
be granted. Alexander’s complaint alleges that White, Pierce, First NBC Bank,
and LeDoux engaged in various questionable actions in connection with the
succession. But on appeal, Alexander has not explained how any of the alleged
conduct deprived him of “rights, privileges, or immunities secured by the
Constitution or laws of the United States.” Parratt, 451 U.S. at 535. Nor has
Alexander cited any factually similar cases in support of his contention that
the actions violated his constitutional or statutory rights. Based solely upon
the facts alleged in the complaint, we are unable to reasonably infer that these
Appellees engaged in any actions that might subject them to liability under
§ 1983. Accordingly, we hold that the district court properly dismissed
Alexander’s claims against White, Pierce, First NBC Bank, and LeDoux.

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C.

Deposit of Funds
Next, Alexander argues that the district court erred by not requiring the

funds from Walker’s succession to be deposited in the registry of the federal
district court. A federal court has “jurisdiction to entertain suits ‘in favor of
creditors, legatees and heirs’ and other claimants against a decedent’s estate
‘to establish their claims,’” but the federal court cannot “interfere with the
probate proceedings or assume general jurisdiction of the probate or control of
the property in the custody of the state court.” Markham v. Allen, 326 U.S. 490,
494 (1946). Accordingly, the federal district court in the instant case did not
have jurisdiction to assume control of property in the custody of the state court
and thus did not err by declining to order that the funds from Walker’s estate
be deposited in the federal district court’s registry.
D.

Timeliness of Pierce’s Pleadings
Finally, Alexander argues that his motion to strike Pierce’s pleadings

should have been granted because Pierce did not timely respond to the
complaint. “This court reviews a motion to strike for abuse of discretion.”
Cambridge Toxicology Grp., Inc. v. Exnicios, 495 F.3d 169, 178 (5th Cir. 2007).
Federal Rule of Civil Procedure 12(a)(1)(A) provides that a defendant must
generally serve an answer “within 21 days after being served with the
summons and complaint.” However, because Pierce was never properly served
with the summons and complaint, the 21-day time limit for filing an answer
never began to run. His motion to dismiss was thus timely, and the district
court could consider it.
Alexander sent the summons and complaint to Pierce by mail. Yet
Federal Rule of Civil Procedure 4(e) provides that individuals within “a judicial
district of the United States” may be served only by (1) “following state law for
serving a summons in an action brought in courts of general jurisdiction in the
state where the district court is located or where service is made,”
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(2) “delivering a copy of the summons and of the complaint to the individual
personally,” (3) “leaving a copy of each at the individual’s dwelling or usual
place of abode with someone of suitable age and discretion who resides there,”
or (4) “delivering a copy of each to an agent authorized by appointment or by
law to receive service of process.” Under Louisiana law, service must generally
be “either personal or domiciliary.” 6 La. Code Civ. Proc. art. 1231. Alexander
has not directed us to any exception to that general rule that applies to the
instant case. And although other sections of Rule 4 allow for certain types of
parties to be served by mail, Rule 4(e) does not allow for an individual within
a judicial district of the United States to be served by mail unless such service
is permitted by state law.
Thus, Pierce was not properly served. We hold that the district court did
not abuse its discretion in declining to grant Alexander’s motion to strike
Pierce’s pleadings.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s dismissal of
the case. We DENY as moot the motion to substitute Federal Deposit
Insurance Corporation as the proper party for First NBC Bank.

“Domiciliary service is made when a proper officer leaves the citation or other process
at the dwelling house or usual place of abode of the person to be served with a person of
suitable age and discretion residing in the domiciliary establishment.” La. Code Civ. Proc.
art. 1234.
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