Hugel v. Southeast Louisiana Flood Protection Authority - East
Filing
96
ORDER AND REASONS granting 45 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle. (ijg, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DIETER M. HUGEL
CIVIL ACTION
VERSUS
NO. 09-4215
SOUTHEAST LOUISIANA FLOOD PROTECTION
AUTHORITY-EAST/ORLEANS LEVEE DISTRICT,
DIVISION OF NON-FLOOD ASSETS
SECTION “B”(3)
ORDER AND REASONS
Before the Court is the Motion for Summary Judgment filed by
Defendants, Southeast Louisiana Flood Protection Authority – East
(“SLFPA”)
and
Orleans
Levee
District,
Division
of
Non-Flood
Assets (“Orleans Levee District”)1 (Rec. Doc. No. 45) and related
briefing (Rec. Doc. Nos. 68, 74, 78, 91, 93, 94, 95).Accordingly,
and for the reasons articulated below,
IT IS ORDERED that Defendants’ Motion for Summary Judgment
is GRANTED, and Plaintiff’s action is DISMISSED with prejudice.
Plaintiff Hugel held a boat-slip lease at the Orleans Marina
at Lake Pontchartrain.
(Rec. Doc. No. 45-1 at 2-3).
This lease
initially carried a rental price based on the water bottom and
land of the particular boat-slip.
Under
the
lease
terms,
lessees
(Rec. Doc. No. 68 at 1).
could
build
and
maintain
improvements on that property, such as boathouses, subject to a
1
Although Defendants are named as “Southeast Louisiana Flood Protection
Authority – East / Orleans Levee District, Division of Non-Flood Assets,” and the
parties’ manner of reference at times suggests a single defendant, two defendants
in fact appear before the Court in this matter. (Rec. Doc. No. 45 at 1); (Rec.
Doc. No. 68 at 1). Defendants’ counsel distinguishes between the two separate
defendants in additional documents. (Rec. Doc. No. 8-1 at 1); (Rec. Doc. No. 74
at 5).
reversionary clause which gave ownership of the improvements to
the lessor at the expiration or termination of the lease.
18.
Id. at
Plaintiff built and maintained a boathouse on his lease.
Id. at 1-2.
Many of the marina leases, including Plaintiff’s, had an
expiration date of 2006 or 2007.
(Rec. Doc. No. 45-1 at 2-3).
In 1994 and again in 1996, as this date approached, the lessees
received offers from the Orleans Levee District to extend their
leases.
(Rec. Doc. No. 68 at 2-3).
In response to the offer in 1994, only six lessees extended
their leases.
Id. at 2.
Plaintiff and several other lessees
responded to a similar offer in 1996.
Id.
Both of these offers
contained language that rental terms would be determined in the
future,
but
did
determine price.
not
contain
prices
or
the
calculations
to
(Rec. Doc. No. 45-1 at 4).
The Orleans Levee District, after receiving recommendations
from their legal and real estate consultants, as well as the
opinion of the Attorney General that the improvements must be
factored into the rent price of the lease extensions or future
new lease agreements, adopted a resolution in September of 2000
stating that the improvements would be part of the rental price
calculation.
Rec. Doc. No. 45-12. In November of 2000, the
Orleans Levee District sent a letter to the lessees noting that
they would either need to sign the extensions or a new thirty
2
year
lease,
both
referencing
the
calculation of the rental price.
resolution
to
describe
(Rec. Doc. No. 45-1 at 16; Rec.
Litigation immediately followed.2
Doc. No. 45-13).
the
(Rec. Doc.
No. 68 at 3).
The lessees signing the 1996 extension pointed out that the
1994 respondents were required only to pay a rental price based
on land and water bottom, whereas the 1996 respondents had the
improvements factored into the price as well.
No. 45-1 at 4).
Id.; (Rec. Doc.
This issue was among those brought in a state
court action entitled Adams v. Bd. of Com'rs for Orleans Levee
Dist., 966 So. 2d 660 (La. App. 4th 2007).
court
found
that
the
1994
In brief, the Adams
respondents,
unlike
the
1996
respondents, signed a counteroffer accepted by the Orleans Levee
District based on a letter including actual prices sent on their
behalf, and that neither the Orleans Levee District’s altering of
the
rental
terms
nor
the
reversionary
clause
violated
plaintiffs’ state or federal constitutional rights.
Following
the
conclusion
of
litigation
in
the
Id.
state
court,
another Orleans Levee District denial to reconsider the rental
terms, and the receipt of a letter informing Plaintiff that he
would have to sign or be evicted, Plaintiff signed a new lease on
June 9, 2008 that became effective on July 1, 2008.
2
(Rec. Doc.
The validity of the 1994 lease extensions formed the basis of the case Fourroux
v. Bd. of Com'rs for Orleans Levee Dist., 837 So. 2d 698 (La. App. 4th 2003).
3
No. 68 at 7, 12).
July 1, 2009.
Plaintiff then filed the current complaint on
(Rec. Doc. No. 1).
This complaint appears before the court on remand from the
Fifth Circuit.
Hugel v. Se. Louisiana Flood Prot. Auth., 429 F.
App'x 364, 365 (5th Cir. 2011).
The Fifth Circuit reversed a
finding of res judicata on Plaintiff’s claim under 42 U.S.C. §
1983, holding that a misconstrual of Plaintiff’s claim and the
lack of clear, unequivocal information as to whether the 1983
claim existed at the time of final judgment in the state action,
precluded such a finding at that time.
Id.
Defendants contend that Plaintiff’s complaint fails for the
following three reasons: (1) SLFPA is not a proper defendant to
this action; (2) Plaintiff’s complaint has prescribed; and, (3)
as reversion had occurred prior to the rental price increase,
which forms the basis of Plaintiff’s action, no “taking” could
have occurred, and the rental rates were proper.
I. Standard of Review
Summary judgment is proper if the pleadings, depositions,
interrogatory
affidavits,
answers,
show
that
and
there
admissions,
is
no
together
genuine
issue
with
as
to
any
any
material fact and that the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c); see also Celotex Corp.
v. Catrett, 477 U.S. 317, 327 (1986). A genuine issue exists if
the evidence would allow a reasonable jury to return a verdict
4
for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, (1986). The moving party has the burden of showing there is
no genuine issue of material fact, but may discharge this burden
by
showing
the
absence
of
evidence
necessary
to
support
an
essential element of the nonmoving party’s case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Although
reasonable
the
Court
inferences
must
in
consider
the
light
the
most
evidence
with
all
to
the
favorable
nonmoving party, the nonmovant must produce specific facts to
demonstrate
that
a
genuine
issue
exists
for
trial.
Webb
v.
Cardiothoracic Surgery Assocs. of N. Texas, 139 F.3d 532, 536
(5th Cir. 1998). To oppose a motion for summary judgment, “the
non-movant cannot rest on mere allegations or denials but must
set forth specific facts showing that there is a general issue of
material fact,” Celotex Corp., at 321-22. In other words, the
nonmovant
must
depositions,
go
beyond
interrogatory
the
pleadings
responses,
and
use
affidavits,
admissions,
or
other
evidence to establish a genuine issue. Webb, 139 F.3d at 536.
Accordingly,
conclusory
rebuttals
of
the
pleadings
are
insufficient to avoid summary judgment. Travelers Ins. Co. v.
Liljeberg Enter., Inc. 7 F.3d 1203, 1207 (5th Cir. 1993).
II. Prescription
Defendants contend that Plaintiff’s Section 1983 action has
prescribed
either
as
a
tort
action
5
subject
to
a
one
year
liberative prescription.(Rec. Doc. No. 45-1 at 12-14). Plaintiff
contends that the proper prescriptive period is three years, as
an action for inverse condemnation (Rec. Doc. No. 74 at 2-3) or
two years, as an action for damage to a leasehold estate (Rec.
Doc. No. 89 at 13).
Finding that Plaintiff had notice since 2000
of
of
the
formulation
the
higher
rental
terms,
the
alleged
injury, this action has prescribed under any prescriptive period,
as Plaintiff did not file the present complaint until 2009.
No
genuine issue of material fact to the contrary exists on this
point.
A court considering a claim under 42 U.S.C. § 1983 will look
to the individual state’s statute of limitations for general
personal injury actions to determine whether an action is timebarred.
Owens v. Okure, 488 U.S. 235, 249-50 (1989) (clarifying
the broad statement of Wilson v. Garcia, 471 U.S. 261 (1985) that
one should look to the analogous state statute of limitations for
application to the Section 1983 action).
This policy requires
settling on one statute of limitations for all Section 1983
actions, regardless of the underlying action or theory.
City of
Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 124 (2005). In
Louisiana, the federal takings claim has been recognized as most
analogous to the tort of condemnation, and thus all Section 1983
actions are subject to a one year statute of limitations. Epes v.
City of Bossier City, 979 F.2d 1534 (5th Cir. 1992).
6
Thus, Plaintiff’s arguments that his takings claim is based
on
alternate
theories
of
inverse
condemnation
or
damage
to
leasehold must fail. Indeed, not only are those theories less
analogous than condemnation, but neither inverse condemnation,
which involves land taken by governmental or private entities
without
appropriation,
(La.
R.S.
13:5111)
nor
damage
to
leasehold, which involves physical damage to leased property (La.
R.S. 9:5624, Avenal v. State, 03-3521 (La. 10/19/04), 886 So.2d
1085,
and
State
through
Dept.
of
Transp.
&
Development
v.
Chambers Inv. Co., Inc. 595 So.2d 598 (La. 1992)), even applies
to the facts of this case.
Thus, in Louisiana, La. C.C. art. 3492 (2012) provides a one
year
period
prescriptive
as
the
period,
controlling
applicable
statute
to
all
of
limitations,
Section
1983
or
actions.
Elzy v. Roberson, 868 F.2d 793, 794-95 (5th Cir. 1989).
Again,
this article provides the time limit regardless of whether the
injury is to a person or to property.
City,
979
F.2d
1534
(5th
Cir.
1992)
Epes v. City of Bossier
(applying
a
one
year
prescriptive period for actions under Section 1983 concerning a
city’s condemnation of private property).
Although the statute of limitations is set as the one-year
prescriptive period under Louisiana law, federal law determines
when the statute of limitations begins to run, that is, when the
cause of action accrues.
Lavellee v. Listi, 611 F.2d 1129, 11307
31 (5th Cir. 1980) (internal citations omitted).
Broadly stated,
the Section 1983 action accrues when “plaintiff knows or has
reason to know of the injury which is the basis of the action,”
or when “the plaintiff is in possession of the critical facts
that he has been hurt and the defendant is involved.” Lavelle,
611 F.2d at 1131; Webster v. City of Amarillo, 68 F.3d 464 (5th
Cir. 1995).
The core of Plaintiff’s complaint centers on the
formulation of the rent terms which Plaintiff would have to pay.
(Rec. Doc. No. 78 at 2). Here, the appropriating resolution of
September 20, 2000, authorized the Orleans Levee District to sign
amendments and new leases. (Rec. Doc. No. 95-1). Moreover, the
Orleans Levee District immediately acted on the appropriating
resolution to require notice from Plaintiff and other tenants no
later than January 2, 2001, of their decision to accept the new
terms or forfeit their lease rights (Rec. Doc. No. 95-2 and 953), and Plaintiff quickly responded to accept the new terms (Rec.
Doc. No. 95-4).
Orleans
Levee
Thus, the injury stems from the September 2000
District
resolution
determining
the
formula
to
calculate the rent prices.
In
Epes,
stemming
property.
from
the
a
Fifth
city’s
Circuit
dealt
condemnation
Epes, 979 F.2d at 1534.
of
with
a
a
similar
certain
issue
piece
of
In May of 1986, the plaintiff
received a letter informing him that a recommendation to condemn
his housing units had been submitted.
8
Id.
The city then issued
a condemnation order at a city council meeting on June 17, 1986,
which the plaintiff unsuccessfully appealed through the state
court system.
Id.
The court found that the injury occurred with
the issuance of the condemnation order, not with the demolition,
and that the subsequent appeal did not toll the Section 1983
statute of limitations.
Id. (citing Delaware State Coll. v.
Ricks, 449 U.S. 250 (1980); Peter Henderson Oil Co. v. City of
Port Arthur, Tex., 806 F.2d 1273 (5th Cir. 1987)); see Duplantis
v. Bonvillain, 675 F. Supp. 331 (E.D. La. 1987).
Similarly,
Orleans
Levee
District
Resolution
02-092000
adopted on September 20, 2000, clearly set forth the method of
calculation to be used for the rental rates, including that the
value of the improvements would be considered.
12.
This
comprises
the
central
issue
of
Rec. Doc. No. 45-
Plaintiff’s
alleged
injury, and as long as Plaintiff had reason to know, the action
accrues at this point.
On November 1, 2000, the Orleans Levee District sent drafts
of a lease with multiple references to Resolution 02-092000 to
lessees of the Orleans Marina.
Rec. Doc. No. 45-13. Not only did
Plaintiff’s attorney respond to this letter, thus acknowledging
receipt, but also shortly thereafter several lessees, including
Plaintiff, filed the state court action regarding the Orleans
Levee District’s ability to impose new rental terms.
So. 2d 660.
Adams, 966
Therefore, Plaintiff knew of the alleged injury in
9
early November of 2000, at the very latest, but did not file the
present action until 2009.
unless
he
can
show
that
Plaintiff’s claim has prescribed
the
prescriptive
period
had
been
interrupted or suspended.
While federal law governs when the action accrues, state law
governs when the time period is tolled.
Torres v. Superintendent
of Police of Puerto Rico, 893 F.2d 404 (1st Cir. 1990).
No
apparent basis exists here for the interruption or suspension of
prescription, unless Plaintiff could show that the filing of the
state court litigation should have such an effect.
3462 (2012).
La. C.C. art.
As noted above, subsequent appeals or litigation on
the underlying cause of injury do not interrupt prescription.
See Epes, 979 F.2d 1534; Liberty Mut. Ins. Co. v. Brown, 380 F.3d
793, 799 (5th Cir. 2004).
Instead, the cause of action itself
must be the basis of that suit.
(2012).
La. C.C. art. 3462, cmt. b.
Of course, if Plaintiff claims the Adams litigation
should interrupt prescription, then he admits that the issue has
already been litigated, not to mention existed, at the time of
the
state
court
litigation,
thereby
satisfying
Defendants’
reurging of the res judicata contention and allaying the concerns
of the Fifth Circuit in its previous remand.
(Rec. Doc. No. 74
at 5); Adams, 966 So. 2d 660; Hugel, 429 F. App'x 364.
Plaintiff’s claim under Section 1983 prescribed in early
November of 2001. Furthermore, Plaintiff cannot show interruption
10
of this prescription period, and any such attempt would only
reinforce Defendants’ res judicata arguments.
Because the Court finds Plaintiff’s claims must be dismissed
as
prescribed,
the
Defendants’
other
bases
for
the
summary
judgment motion need not be addressed.
New Orleans, Louisiana, this 3rd day of August, 2012.
____________________________
UNITED STATES DISTRICT JUDGE
11
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