Bayou Fleet Partnership LLP v. St. Charles Parish

Filing 38

ORDER AND REASONS denying 28 Motion to Dismiss Case ; granting in part and dismissing in part 22 Motion to Strike defendant's State Law Defenses. Signed by Judge Ivan L.R. Lemelle. (ijg, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BAYOU FLEET PARTNERSHIP, LLC

CIVIL ACTION

VERSUS

NO. 10-1557

ST. CHARLES PARISH

SECTION “B”(3)
ORDER AND REASONS

Before the Court is Defendant’s Motion to Dismiss pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure (Rec. Doc.
No. 28), and Plaintiff’s Motion to Strike Defendant’s State Law
Defenses pursuant to Federal Rule of Civil Procedure 12(f) (Rec.
Doc. No. 22), both of which are opposed (Rec. Doc. Nos. 27, 34).
For the following reasons,
IT IS ORDERED that Defendant’s Motion to Dismiss (Rec. Doc.
No. 28) is DENIED;
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike
Defendant’s State Law Defenses (Rec. Doc. No. 22) is GRANTED IN
PART and DISMISSED IN PART.
Plaintiff

owns

four

tracts

of

Mississippi

River

batture

property located along the Lower Mississippi River in St. Charles
Parish.

Rec. Doc. No. 28-1, at 1; Rec. Doc. No. 34, at 1.

Before

St. Charles Parish (“the Parish”) adopted its Comprehensive Zoning
Ordinance, Plaintiff’s batture property had been used for various
industrial activities, including aggregate storage and distribution
facilities, sand pit extraction, and shipyard facilities.
1

Rec.

Doc. No. 28-1, at 1-2; Rec. Doc. No. 1, at 3.

With the adoption of

the Parish’s Comprehensive Zoning Ordinance, all of Plaintiff's
tracts were zoned B-1 (a non-industrial batture district), and the
previous industrial uses of Plaintiff’s property became classified
as non-conforming uses.

Rec. Doc. No. 28-1, at 2; Rec. Doc. No. 1,

at 3.
The Comprehensive Zoning Ordinance also established a B-2
zoning

classification

for

batture

property,

which

created

an

industrial batture district and only prohibited batture property
from being used for medical waste storage, treatment, or disposal
facilities.

Rec. Doc. No. 1, at 3-4.

Plaintiff asserts that its

neighboring batture property, which had historically been utilized
for the same types of economic activity, applied for and was
granted a rezoning from B-1 to B-2 in 1996 and 1999.

Rec. Doc. No.

28-1, at 2; Rec. Doc. No. 34, at 1; Rec. Doc. No. 1, at 4-5.
However, in 2003, and again in 2009, Plaintiff applied to have its
property rezoned from B-1 to B-2, which the Parish denied.
Doc. No. 1, at 5-6.

Rec.

Plaintiff filed its Complaint against the

Parish on May 25, 2010, alleging violations of substantive due
process and equal protection pursuant to 42 U.S.C. § 1983, claiming
that the Parish “arbitrarily or capriciously engaged in reverse
spot zoning, by singling out the plaintiff’s four tracts of batture
property

for

different,

less

neighboring batture property.”

favorable,

treatment,

Rec. Doc. No. 1, at 6-7.

2

than

the

The Parish previously filed a motion to dismiss Plaintiff’s
Complaint based on prescription, and this Court granted the motion
as it related to the 2003 denial, but denied the motion regarding
the 2009 request.

See Rec. Doc. Nos. 6, 13.

The Parish then filed

its Answer to Plaintiff’s Complaint on January 31, 2011.

See Rec.

Doc.

filed

No.

15.

In

early

February

2011,

Plaintiff

a

Supplemental and Amending Complaint, which added the Parish’s
denial

of

Plaintiff’s

third

application

for

rezoning

of

its

property in 2010 as a new claim, additionally sought a “permanent
mandatory injunction,” and increased the monetary damage demand.
See Rec. Doc. No. 19.
I.

Motion to Dismiss
The Parish filed the instant motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6), alleging that both of
Plaintiff’s Complaints fail to state the essential elements of
either substantive due process or equal protection and should
therefore be dismissed.
1, at 4.

Rec. Doc. No. 28, at 1; Rec. Doc. No. 28-

The Parish asserts that Plaintiff has not articulated a

constitutionally protected property interest, legitimate claim of
entitlement, or any justifiable expectation that its property would
be rezoned, which is necessary to sustain a substantive due process
claim in this context.

Rec. Doc. No. 28-1, at 4-5.

Further, the

Parish argues that without this prerequisite property interest,
Plaintiff’s substantive due process allegations completely overlap
3

its equal protection claim, and therefore, the Court should dismiss
Plaintiff’s substantive due process claim and analyze the facts and
allegations only with regard to the alleged equal protection
violation.

Id.

at

6-7.

Finally,

the

Parish

contends

that

Plaintiff has failed to adequately allege that the neighboring
batture property allowed to be rezoned was substantially similar to
Plaintiff’s property in order to maintain an equal protection claim
based on a “class of one” theory.

Id. at 7-9.

Plaintiff first urges that the Parish’s motion is untimely to
the extent it seeks a dismissal of the claims set forth in
Plaintiff’s original Complaint, as the motion was filed after the
Parish filed its Answer to the original Complaint, and pursuant to
Rule 12(b), a 12(b)(6) motion must be made prior to the filing of
the Answer.

Rec. Doc. No. 34, at 4.

Plaintiff additionally

contends that it has sufficiently alleged a protected property
interest, as ownership in and use and enjoyment of real property
has been held to be a protected property interest worthy of due
process protection and moreover, in limited circumstances, such a
property interest includes not only what is owned but also what is
sought.

Id. at 5-6.

Plaintiff further maintains that it has a

protected property interest in and legitimate entitlement to a
rational zoning decision, since under Louisiana law, a local
governmental body has no authority or discretion to engage in
irrational, arbitrary, or capricious reverse spot zoning, which is

4

alleged here.

Id. at 7.

Accordingly, Plaintiff asserts that it

has adequately pled the prerequisite protected property interest
for its substantive due process claim, and therefore, the claim
cannot be subsumed by its additional equal protection claim and
should not be dismissed.

Id. at 8.

Plaintiff further argues that

it has sufficiently stated a claim for equal protection based on a
“class of one” theory, as it clearly alleges in both its original
and Supplemental and Amending Complaint that its property and its
neighbors’

property

were

similarly

situated

with

the

same

historical uses, yet the Parish rezoned the neighboring property
but refused to rezone Plaintiff’s.
A.

Id. at 11.

Motion to Dismiss Standard1
When reviewing a motion to dismiss, courts must accept all

well-pleaded

facts

as

true

and

view

them

in

the

light

most

favorable to the non-moving party. Baker v. Putnal, 75 F.3d 190,
196 (5th Cir. 1996).

However, "[f]actual allegations must be

enough to raise a right to relief above the speculative level."
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). " 'To survive

1
While Plaintiff correctly contends that a Rule 12(b) motion must be
filed before responsive pleadings, a motion to dismiss for failure to state a
claim filed after the answer may be treated as a 12(c) motion for judgment on
the pleadings based on a failure to state a claim on which relief may be
granted, which may be filed after the pleadings are closed. Jones v.
Greninger, 188 F.3d 322, 324 (5th Cir. 1999). We therefore construe the
Parish’s motion to dismiss, to the extent it challenges the claims raised in
Plaintiff’s original Complaint, as one for judgment on the pleadings under
12(c). The Fifth Circuit applies the same standard for a motion to dismiss
under Rule 12(c) as it does for a motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. Jones, 188 F.3d at 324; see also Oakville
Community Action Group v. Industrial Pipe, Inc., 2003 WL 22990719, *1-*2
(E.D.La. 2003).

5

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.' " Gonzales v. Kay, 577 F.3d 600, 603 (5th
Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009))
(internal quotation marks omitted).

The Supreme Court in Iqbal

explained that Twombly promulgated a "two-pronged approach" to
determine whether a complaint states a plausible claim for relief.
Iqbal, 129 S.Ct. at 1950.

First, courts must identify those

pleadings that, "because they are no more than conclusions, are not
entitled to the assumption of truth." Id.

Legal conclusions "must

be supported by factual allegations." Id.

"Threadbare recitals of

the elements of a cause of action, supported by mere conclusory
statements, do not suffice."

Id. at 1949.

Upon identifying the well-pleaded factual allegations, courts
then

"assume

their

veracity

and

then

determine

whether

they

plausibly give rise to an entitlement to relief." Id. at 1950.

"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. at 1949.
This is a "context-specific task that requires the reviewing court
to draw on its judicial experience and common sense." Id.
plaintiffs

must

"nudge[]

conceivable to plausible."

their

claims

across

the

Twombly, 550 U.S. at 570.

6

line

The
from

B.

Plaintiff’s Substantive Due Process Claim
In order to establish a substantive due process violation, a

plaintiff must first show the existence of a constitutionally
protected property right to which the Fourteenth Amendment’s due
process protection applies.

Simi Inv. Co., Inc. v. Harris County,

Tex., 236 F.3d 240, 249-50 (5th Cir. 2000); McCachren v. U.S. Dept.
Of Agriculture, Farmers Home Administration, 599 F.2d 655 (5th Cir.
1979). The United States Supreme Court has explained that property
interests, for the purposes of the due process clause, are created
and defined by existing rules or understandings that stem from an
independent source such as state law.

Board of Regents of State

Colleges v. Roth, 408 U.S. 564, 577 (1972).

The Court further

stated that a protected property interest requires more than a
person’s abstract need, desire, or unilateral expectation of it;
one must instead have a legitimate claim of entitlement to it.

Id.

In addition, although the existence of a property interest must be
decided initially by reference to state law, federal constitutional
law

determines

whether

that

interest

rises

to

the

entitlement protected by the due process clause.

level

of

Shawgo v.

Spradlin, 701 F.2d 470, 475 (5th Cir. 1983) (citing Winkler v.
County of DeKalb, 648 F.2d 411, 414 (5th Cir. 1981)).
Plaintiff claims it has a protected property interest in a
legitimate zoning decision, as Louisiana law prohibits irrational
7

reverse spot zoning.

Rec. Doc. No. 34, at 7.

Indeed, in Shelton

v. City of College Station, 754 F.2d 1251 (5th Cir. 1985), the
United States Fifth Circuit Court of Appeals, in considering a
substantive due process claim under § 1983 in connection with the
denial

of

a

zoning

variation,

found

that

because

Texas

law

recognizes the right of an owner not to have his use of his
property arbitrarily restricted, and further allows this right to
be judicially enforced, such right “is, in our view, sufficiently
a property right - a ‘legitimate claim of entitlement’ - that the
arbitrary deprivation thereof implicates an invasion of Fourteenth
Amendment due process rights.”

Shelton, 754 F.2d at 1256-57

(citing Roth, supra, 408 U.S. at 577; Perry v. Sinderman, 408 U.S.
593, 599-603 (1972)).

The court specifically focused on the fact

that Texas law provided a judicial remedy for property owners
aggrieved by an arbitrary and unreasonable zoning action by a
municipal

agency,

including

where,

through

arbitrary

and

discriminatory exercise of the power to deny zoning applications,
the municipal actor deprives the owner of a property interest of a
business use of his property that is permitted to others similar
situated. Shelton, 754 F.2d at 1256 (internal citations omitted).2

2

Although rehearing en banc was held in this matter, the court did not
address the issue of defining the property right in question, as it found that
there was a rational basis for the zoning decision made, thereby precluding a
substantive due process claim. See Shelton v. City of College Station, 780
F.2d 475, 477, 479 (5th Cir. 1986).

8

Louisiana similarly recognizes and allows judicial redress for
arbitrary and capricious zoning decisions made by municipalities,
including where the denial of a rezoning request results in a
plaintiff being treated differently than those whose rezoning
requests have been granted, thereby resulting in “reverse spot
zoning.”

See, e.g., Four States Realty Co. v. City of Baton Rouge,

309 So.2d 659 (La. 1975); Jenniskens v. Parish of Jefferson, 940
So.2d 209 (La. App. 5 Cir. 2006); Cook v. Metropolitan Shreveport
Bd. of Appeals, 339 So.2d 1225 (La. App. 2 Cir. 1976); Sears,
Roebuck & Company v. City of Alexandria, 155 So.2d 776 (La. App. 3
Cir. 1963).

Accordingly, at this stage in the proceedings,

Plaintiff has set forth a plausible constitutionally protected
property

interest

sufficient

to

prevent

dismissal

of

its

substantive due process claim.
C.

Plaintiff’s Equal Protection Claim
To establish an equal protection claim based on a “class of

one” theory, the plaintiff must show that he or she was treated
differently

from

others

similarly

situated

and

rational basis for the difference in treatment.

there

was

no

Stotter v. Univ.

of Tex. at San Antonio, 508 F.3d 812, 824 (5th Cir. 2007) (citing
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).

The

Parish asserts that Plaintiff has failed to provide sufficient
facts in its Complaint to support its claim that the tracts of land
9

at issue are substantially similar.

Rec. Doc. No. 28-1, at 9.

However, Plaintiff specifically alleges in its Complaint that
before the Parish adopted its Comprehensive Zoning Ordinance, which
created

the

classifications

of

non-industrial

and

industrial

batture districts, its neighboring tracts of batture property - the
Home Place Tract and the Giambelluca Tract - had been used for the
same industrial uses as Plaintiff’s property, which among other
uses included aggregate storage and distribution facilities, sand
pit extraction, storage and distribution facilities, and shipyard
facilities.

Rec. Doc. No. 1, at 2-3.

Additionally, Plaintiff’s

Complaint provides that when the Parish adopted its Comprehensive
Zoning Ordinance, Plaintiff’s property, the Home Place Tract, and
the Giambelluca Tract were all zoned B-1; however, when the latter
tracts applied to be rezoned from B-1 to B-2, such requests were
granted, while Plaintiff’s were repeatedly denied.

Id. at 3-6.

Accepting these facts as true and viewing them most favorably to
Plaintiff, the Complaint sufficiently alleges that Plaintiff’s
property was treated differently than its neighboring property,
which in light of the pertinent characteristics at issue here can
be considered similarly situated. Accordingly, the Parish’s Motion
to Dismiss Plaintiff’s equal protection claim is also denied.
II.

Motion to Strike
Plaintiff urges this Court to strike the Parish’s three state
10

law

defenses

Specifically,

raised

in

Plaintiff

its

answer.

asserts

that

Rec.
the

Doc.

Parish’s

No.

22.

state

law

discretionary immunity defense should be stricken because the
defenses to a § 1983 claim are defined and controlled by federal,
not state, law.

Rec. Doc. No. 22-1, at 2-3.

Similarly, Plaintiff

argues that the Parish’s state law jury trial limitation defense
should be stricken because the right to a jury trial in federal
court presents a question of federal law, even when a state statute
would preclude a jury trial in state court.

Id. at 3.

Plaintiff

further maintains that this Court should strike the Parish’s
allegation that Plaintiff’s lawsuit is premature for failure to
exhaust all administrative remedies provided in the Parish Code of
Ordinances, as exhaustion of state administrative remedies is not
a prerequisite to a § 1983 action.

Id. at 4.

Plaintiff claims

that to the extent the Parish argues that the suit is not ripe
because Plaintiff is essentially pursuing a takings claim, such
contention should be stricken, because Plaintiff does not allege a
takings

claim,

but

only

substantive

due

protections claims, which are clearly ripe.
3-6.

process

and

equal

Rec. Doc. No. 33, at

Finally, Plaintiff contends that to the extent the Parish

seeks to challenge Plaintiff’s Supplemental and Amending Complaint
on the basis of failure to exhaust administrative remedies, such
issue is not properly before the Court at this time since the
11

Parish has not yet filed its answer to the Supplemental and
Amending Complaint.

Id. at 7.

The Parish contends that because Plaintiff’s Complaint invokes
the supplemental jurisdiction of this Court pursuant to 28 U.S.C.
§ 1367, thereby implying that its allegations include potential
state law claims, the Parish’s state law discretionary immunity
defense should not be stricken at this time.
1-4.

Rec. Doc. No. 27, at

The Parish, however, concedes that Plaintiff is entitled to

a trial by jury on its § 1983 claims to the extent those claims
seek legal damages.

Id. at 4.

Additionally, the Parish argues

that its ripeness defense based on Plaintiff’s failure to exhaust
all administrative remedies provided in the Parish’s Code of
Ordinances should be allowed because Plaintiff’s Supplemental and
Amended Complaint contains factual allegations and claims that have
not first been submitted to the St. Charles Parish Council.
5.

Id. at

The Parish further asserts that Plaintiff’s damage demand is

“for all intents and purposes a Fifth Amendment takings claim,”
which requires a litigant to pursue available state law remedies
prior to seeking relief in federal court, and therefore Plaintiff’s
claims are not ripe and the Parish’s defense based on such should
not be stricken.

Id. at 5-7.

12

A.

Motion to Strike Standard
Rule 12(f) allows the Court to strike “from any pleading any

insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.”

The purpose of this rule is to streamline the

pleadings and the litigation and to avoid unnecessary inquiry into
immaterial matters.

McInerney v. Moyer Lumber & Hardware, Inc.,

244 F. Supp. 2d 393, 402 (E.D. Pa. 2002).

Immateriality is

established by showing the challenged allegations “can have no
possible bearing upon the subject matter of the litigation.”
Sadler v. Benson Motors Corp., 1997 WL 266735, at *1 (E.D. La.
1997) (quoting Succession of Wardlaw v. Whitney Nat’l Bank, 1994 WL
479183, at *1 (E.D. La. 1994)).

Although motions to strike are

disfavored and infrequently granted, striking certain allegations
can be appropriate when they “have no possible relation to the
controversy and may cause prejudice to one of the parties.”
McInerney, 244 F. Supp. 2d at 402; see also Berry v. Lee, 428 F.
Supp. 2d 546, 563 (N.D. Tex. 2006); Boreri v. Fiat S.p.A., 763 F.2d
17, 23 (1st Cir. 1985).
B.

Discretionary Immunity Defense (La. R.S. 9:2798.1)
The Parish maintains that its state law discretionary immunity

defense should not be stricken because Plaintiff’s Complaint has
invoked

the

supplemental

jurisdiction

13

of

this

Court

thereby

suggesting that some of Plaintiff’s claims may arise from state
law.

Rec. Doc. No. 27, 1-4.

Plaintiff, however, has not asserted

any state law claims; instead, its original and Supplemental and
Amending Complaint only allege causes of action under § 1983, based
on

the

Parish’s

purported

violation

of

Plaintiff’s

federal

Fourteenth Amendment substantive due process and equal protection
rights.

See Rec. Doc. Nos. 1, 19.

As “conduct by persons acting

under color of state law which is wrongful under 42 U.S.C. § 1983
[] cannot be immunized by state law,”3 the Parish’s state law
discretionary immunity defense has no bearing upon the subject
matter of the litigation, and therefore Plaintiff’s motion to
strike this defense is granted.
C.

Jury Trial Limitation (La. R.S. 13:5105)
As set forth above, the Parish concedes that Plaintiff is

entitled to a trial by jury on its § 1983 claims to the extent
those

claims

seek

legal

damages.

Rec.

Doc.

No.

27,

at

4.

Accordingly, Plaintiff’s motion to strike the Parish’s state law
jury trial limitation defense is granted.
D.

Ripeness of Plaintiff’s Claims Based on Failure to Exhaust
Administrative Remedies
The Parish argues that it should be allowed to assert its

3

Martinez v. California, 444 U.S. 277, 284 n.8 (1980) (citing Hampton v.
Chicago, 484 F.2d 602, 607 (7th Cir. 1973)).

14

ripeness defense based on Plaintiff’s failure to exhaust all
administrative remedies provided in the Parish’s Code of Ordinances
because Plaintiff is in reality asserting a Fifth Amendment takings
claim, which requires a Plaintiff to seek compensation through
available state court procedures before pursuing a federal court
action.

Rec. Doc. No. 27, at 5-7.

Plaintiff’s

Supplemental

and

The Parish also asserts that

Amending

Complaint

contains

hypothetical allegations of applications and denials that have not
even been before the St. Charles Parish Council for decision.

Id.

at 4-5.
With respect to the Parish’s contention that Plaintiff is in
actuality asserting a takings claim under the Fifth Amendment,
Plaintiff’s motion to strike the Parish’s defense of ripeness is
granted.

Plaintiff has not, in either its original Complaint or

Supplemental and Amending Complaint, stated or implied a takings
claim under the Fifth Amendment.

See Rec. Doc. Nos. 1, 19.

Indeed, Plaintiff has consistently only asserted claims pursuant to
§ 1983 for the Parish’s alleged violation of Plaintiff’s Fourteenth
Amendment substantive due process and equal protection rights. Id.
Because Plaintiff has not alleged a takings claim, explicitly or
otherwise, the Parish’s ripeness defense premised on Plaintiff’s
“mischaracterization” of its causes of action is immaterial and is
hereby stricken.
15

However, considering the Parish’s alternative assertion that
certain allegations contained in Plaintiff’s Supplemental and
Amending Complaint are not ripe for review, the Court finds that
this issue is not properly before it at this time, as the Parish
has yet to file its Answer to the Supplemental and Amending
Complaint asserting such defense.

Accordingly, to the extent that

this issue has been raised, Plaintiff’s motion to strike is
dismissed without prejudice to reurge on a timely basis.
New Orleans, Louisiana, this 8th day of July, 2011.

United States District Judge

16