Welborn v. St. Bernard Parish Government
Filing
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ORDER and REASONS granting 26 Motion to Dismiss for Failure to State a Claim. Signed by Judge Helen G. Berrigan on 11/25/13. (plh, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
OREN M. WELBORN
CIVIL ACTION
VERSUS
NO. 11‐532
ST. BERNARD PARISH GOVERNMENT
SECTION ʺCʺ (4)
ORDER AND REASONS
This matter comes before the Court on motion to dismiss filed by the defendant
St. Bernard Parish Government (ʺSt. Bernardʺ). Having considered the record, the
memoranda of counsel and the law, the Court rules as follows.
The plaintiff seeks damages for the alleged denial of his due process under the
Fifth and Fourteenth Amendment and for the wrongful taking of property. The
plaintiffʹs home in St. Bernard had been damaged in Hurricane Katrina and
subsequently demolished by the defendant. According to the complaint, the plaintiff
had attended several hearings ʺto advise the status of repairsʺ to his home since 2008,
had beenʺworking withʺ organizations to obtain funds to raise the home at the time of
the demolition in March 2011 and ʺattempted to make amicable demand via an
appointmentʺ with the parish president in March and April 2010 ʺall to no avail.ʺ Rec.
Doc. 1.
In this motion, the defendant argues that the federal claim for wrongful taking
under the Fifth Amendment is not ripe because the plaintiff has not used available state
procedures for ʺinverse condemnationʺ and has not been denied just compensation.
Rec. Doc. 26. In opposition to the motion to dismiss, the plaintiff argues that the
defense argument is ʺgenerally correct,ʺ but that the state remedies are insufficient
because any judgment by a state court ʺmay not be paid for many years or even
decades.ʺ
The issue of ripeness is a jurisdictional one. Choice Inc. of Texas v. Greenstein, 691
F.3d 710, 714 (5th Cir. 2012). The plaintiff as the party asserting jurisdiction bears the
burden of proof of demonstrating subject matter jurisdiction on a motion to dismiss
under Fed.R.Civ.P. 12(b)(1). Id. A complaint is subject to dismissal if it appears that
the plaintiff can not prove a plausible set of facts that establish jurisdiction as
determined by the complaint alone, the complaint supplemented by undisputed facts or
the complaint plus the courtʹs resolution of disputed facts. Id. The motion should be
granted only if it appears certain that the plaintiff cannot prove any set of facts in
support of his claim that would entitle him to relief. Id.
The basis of the plaintiffʹs taking claim is in the Fifth Amendment prohibition:
ʺnor shall private property be taken for public use without just compensation.ʺ In order
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to establish a valid taking claim, there must be a taking and the plaintiff must be denied
just compensation for the property. Williamson County Regional Planning Commʹn v.
Hamilton Bank of Johnson City, 473 U.S. 172 (1996). Property demolitions may constitute
takings. John Corp. v. City of Houston, 214 F.3d 573, 579 (5th Cir. 2000). In order to
establish a Fifth Amendment Takings Clause violation, the plaintiff must show that he
was denied just compensation through state procedures. Id. at 581. According to the
complaint, ʺ[I]f a State provides an adequate procedure for seeking just compensation,
the property owner cannot claim a violation of the Just Compensation Clause until it
has used the procedure and been denied just compensation.ʺ Williamson County, 473
U.S. at 194. A plaintiff who has not utilized the state procedures must prove that any
attempt to seek compensation through the state procedures would have been futile or
inadequate. Liberty Mutual Insurance Co. v. Louisiana Department of Insurance, 62 F.3d
115, 117 (5th Cir. 1995).
Louisiana law provides an action for inverse condemnation when property is
wrongfully taken. Louisiana, through Dept. of Transporttion & Development v. Chambers,
595 So.2d 598, 602 (La. 1992). The plaintiff here admits that he did not use the state
procedures for redress and has not been denied compensation as a result of that
process. Instead, he argues futility in opposition to this motion based on the
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anticipated delay in being paid on any judgment against the defendant. Assuming that
this fact is accurate, the Court finds that it is insufficient to constitute the required
futility as a matter of law. See Side By Side Redevelopment, Inc. v. City of New Orleans,
2010 WL 3946961 (E.D.La. 2010). In addition, any procedural due process claim is also
unripe until the takings claim can be assessed. John Corp., 214 F.3d at 585.
Accordingly,
IT IS ORDERED that the motion to dismiss filed by the defendant St. Bernard
Parish Government is GRANTED. Rec. Doc. 26.
New Orleans, Louisiana, this 25th day of November, 2013.
____________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT COURT
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