Woods et al v. Bocz et al

Filing 37

ORDER AND REASONS granting 34 MOTION to Dismiss under Rule 12(b)(6), Amended Complaint (Doc. 032) filed by Elwyn Bocz, St. James Parish Council, James Brazan, Ralph A Patin, Jr, Charles Ketchens, Wilson Malbrough, Jr. and Jason Amato. The plaintiffs claims are dismissedwith prejudice. Signed by Judge Martin L.C. Feldman on 9/19/11.(tsf, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BARBARA WOODS, ET AL.

CIVIL ACTION

v.

NO. 11-1146

ELWYN BOCZ, ET AL.

SECTION "F"
ORDER AND REASONS

Before the Court is the defendants’ Rule 12(b)(6) motion to
dismiss the plaintiff’s amended complaint.

Local Rule 7.5 of the

Eastern District of Louisiana requires that memoranda in opposition
to a motion be filed eight days prior to the noticed submission
date.

No memoranda in opposition to the defendants’ Rule 12(b)(6)

motion, which was due not later than September 13, 2011, has been
submitted.1

For the reasons that follow, the defendants’ motion to

dismiss is GRANTED.
Background
This is a voting rights case in which the plaintiffs challenge
the constitutionality of the redistricting plan adopted by St.
James Parish on May 9, 2011 after a veto by the Parish President.
Four days later, a group of plaintiffs (all St. James Parish
residents), as representatives of a putative class, sued the St.
1

This is the second time that counsel for plaintiffs has
failed to timely file opposition papers in response to the
defendants’ motion to dismiss. The first time it happened, upon a
finding by this Court that the defendants’ motion to dismiss had
merit, the Court granted the motion as unopposed.
1

James Parish Council and its members in this Court, seeking a
declaratory

judgment

unconstitutional;

the

that

the

plaintiffs

redistricting

contended

in

plan

their

is

original

complaint that the reapportionment plan “is very irregular and
obviously contains districts that have been gerrymandered for
partisan or personal political purposes.”
On June 7, 2011 the defendants filed a motion to dismiss the
complaint; the motion was noticed for hearing on June 22, making
the plaintiffs’ opposition due no later than June 14, 2011.

The

plaintiffs did not file an opposition, or otherwise request an
extension of time within which to do so; nor did they request a
continuance of the submission date.

Having received no response

from the plaintiffs, on June 17 the Court granted the defendants’
motion to dismiss.

In doing so, the Court noted that the motion

was unopposed and further found that “the motion has merit”.

Four

days later, judgment was entered in favor of the defendants.

The

day

after

judgment

reconsideration,

and

was
also

entered,
requested

the

plaintiffs

permission

to

sought

file

opposition papers to the defendants’ motion to dismiss.2

their

In light

of the fact that an amended redistricting plan was passed in the

2

The motion for reconsideration was filed the day after
judgment was entered and the motion for leave to file their
opposition was filed six weeks later.
2

meantime,3 the plaintiffs also filed a motion for leave to amend
their complaint on August 9, 2011, which was contested and set for
hearing before the Magistrate Judge.
On August 23, 2011 the Court granted the plaintiffs’ motion
for reconsideration and denied without prejudice their motion for
leave to file response to the defendants’ Rule 12(b)(6) motion. In
so doing, the Court noted:
Counsel for plaintiff says that he was out of the
country on a family vacation from June 5, 2011 through
June 12, 2011. He suggests that this made it impossible
for him to respond within the time limit required by the
Local Rules.[] The Court disagrees because counsel could
have, and should have, requested a continuance of the
submission date on the defendants’ motion.
Counsel’s
inadvertence and neglect is simply not grounds for
reconsideration. However, the Court is mindful that the
individual plaintiffs are not at fault for their
counsel’s mistakes.[] Accordingly, the Court will permit
them to file their opposition papers [to any re-filed
motion to dismiss, pending the magistrate judge’s ruling
on the plaintiffs’ motion to amend their complaint].
See

Order

and

Reasons

dated

August

23,

2011.

Although

acknowledging that the individual plaintiffs were not at fault for
their counsel’s mistakes, the Court expressly admonished counsel

3

While the plaintiffs’ motion for reconsideration was
pending, the redistricting plan challenged by the original
complaint was changed by the St. James Parish Council. On June 29,
2011 a different plan was adopted after the Parish Council
rescinded its earlier adoption of Ordinance 11-04, which approved
redistricting Alternative 3A. Amended Ordinance 11-04 was adopted
to enact a revised redistricting Alternative 3B.
St. James
submitted Alternative 3B to the U.S. Justice Department under the
Voting Rights Act for Section 5 preclearance, which is pending.
Based on these new developments, the defendants contended that the
original complaint was no longer valid.
3

that: “Future lapses by counsel...will not be tolerated. See 28
U.S.C. § 1927, for example.” Id.

In denying without prejudice the

plaintiffs’ request to submit their untimely opposition papers,
pending new dismissal papers to be filed by the defendants because
of the new redistricting plan, the Court further warned: “...the
plaintiffs will have an opportunity, strictly adhering to the
briefing schedule mandated by this Court’s Local Rules, to present
their arguments in opposition to a motion to dismiss filed by the
defendants.”

Id.

The

defendants

plaintiffs’ amended complaint.

now

seek

to

dismiss

the

The plaintiffs have, still again,

failed to submit any opposition memoranda.

In failing to submit

timely opposition papers in response to the defendants’ present
motion to dismiss, the plaintiffs have for a second time wholly
disregarded this Court’s Local Rules and its August 23 Order and
Reasons.
I.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to seek dismissal of a complaint for failure to state a
claim upon which relief can be granted.

Such a motion is rarely

granted because it is viewed with disfavor.

See Lowrey v. Tex. A

& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).

In considering a Rule 12(b)(6)

motion, the Court “accepts ‘all well-pleaded facts as true, viewing

4

them in the light most favorable to the plaintiff.’” See Martin K.
Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464 (5th
Cir. 2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.
1999)).

But, in deciding whether dismissal is warranted, the

Court will not accept conclusory allegations in the complaint as
true.

Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards,

Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).
first

identify

pleadings

that

are

Indeed, the Court must

conclusory

and,

thus,

not

entitled to the assumption of truth. Iqbal, 129 S. Ct. at 1949. A
corollary:

legal

conclusions

“must

be

supported

by

factual

allegations.” Id. at 1950. Assuming the veracity of the wellpleaded factual allegations, the Court must then determine “whether
they plausibly give rise to an entitlement to relief.” Id.
“‘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.’” Gonzalez v. Kay, 577 F.3d
600,

603

(5th

Cir.

2009)(quoting

Iqbal,

(2009))(internal quotation marks omitted).

129

S.

Ct.

at

1949

“Factual allegations

must be enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).”

Twombly, 550 U.S. at 555

(quotation marks, citations, and footnote omitted). “A claim has
facial plausibility when the plaintiff pleads factual content that
allows

the

court

to

draw

the

reasonable

5

inference

that

the

defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct.
at 1949

(“The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.”). This is a “context-specific task
that

requires

the

reviewing

court

to

draw

on

its

judicial

experience and common sense.” Id. “Where a complaint pleads facts
that are merely consistent with a defendant’s liability, it stops
short

of

the

line

between

entitlement to relief.”

possibility

and

plausibility

of

Id. (citing Twombly, 550 U.S. at 557)

(internal quotations omitted).
II.
The Voting Rights Act provides:
(a) No voting qualification or prerequisite to voting or
standard, practice, or procedure shall be imposed or
applied by any State or political subdivision in a manner
which results in a denial or abridgement of the right of
any citizen of the United States to vote on account of
race or color, or in contravention of the guarantees set
forth in section 1973b(f)(2) of this title, as provided
in subsection (b) of this section.
(b) A violation of subsection (a) of this section is
established if, based on the totality of circumstances,
it is shown that the political processes leading to
nomination or election in the State or political
subdivision are not equally open to participation by
members of a class of citizens protected by subsection
(a) of this section in that its members have less
opportunity than other members of the electorate to
participate in the political process and to elect
representatives of their choice. The extent to which
members of a protected class have been elected to office
in the State or political subdivision is one circumstance
which may be considered: Provided, That nothing in this
section establishes a right to have members of a
protected class elected in numbers equal to their
proportion in the population.
6

The defendants urge the Court to dismiss the plaintiffs’
amended complaint for failure to state a claim. They suggest that,
after the formulaic and conclusory recitations are eliminated from
consideration, as called for by Iqbal, 129 S. Ct. at 1949-51, the
few remaining facts do not state a claim upon which relief may be
granted.
complaint

In particular, the defendants contend that the amended
is

devoid

of

any

specific

facts

underlying

the

plaintiffs’ asserted claims; the defendants submit that the amended
complaint does not provide information stating essentials such as
how the Parish’s redistricting plan violates the one person, one
vote principle; how the plan discriminates against minority groups;
how the redistricting plan is irregular or “gerrymandered”; or how
the plan dilutes the plaintiffs’ votes.

The Court considers each

of the defendants’ arguments in turn.
A.
The defendants first contend that the plaintiffs’ allegation
that Plan 3B violates the one person, one vote principle because it
“exhibits deviation by cramming and lack of compactness” fails to
state a claim.

The Court agrees.

While the Parish is required to make a “good faith effort to
construct

districts...as

nearly

of

equal

proportion

as

is

practicable”, Reynolds v. Sims, 377 U.S. 533, 568 (1964), “minor
deviations from mathematical equality among state legislative
districts are insufficient to make out a prima facie case of

7

invidious discrimination under the Fourteenth Amendment.”
v. Cummings, 412 U.S. 735, 745 (1973).

Gaffney

Apportionment plans with a

maximum deviation under 10% fall within the category of minor
deviations.

Fairley v. Hattiesburg, Miss., 584 F.3d 660, 675 (5th

Cir. 2009)(citation omitted)(“If a population deviance is less than
10%, it is considered minor and does not suffice, alone, to make
out a prima facie case of discrimination.”).

The 10% threshold is

the boundary between a plan that is constitutional on its face and
one that is not; and even the plaintiffs concede in their amended
complaint that “...the deviation of 9.2% is technically within the
10% range of accepted deviation.”

Accordingly, the plaintiff must

allege facts that, if true, would “prove that the redistricting
process was tainted by arbitrariness or discrimination.”
584 F.3d at 675.

Fairley,

The amended complaint, however, offers only

conclusory labels such as “cramming”, “gerrymandering”, and lack of
“compactness.”

They

fall

short.

Accepting

the

plaintiffs’

deviation allegation as true, the plaintiffs fail to state a claim
that Plan 3B violates one person, one vote principles; rather they
describe a redistricting plan that is prima facie constitutional.4
B.
The

defendants

next

challenge

4

the

sufficiency

of

the

This is so even though, as defendants point out, the
deviation is actually 9.91%, which is still below the 10%
threshold.
See White v. Regester, 412 U.S. 755 (1973)(9.9%
deviation failed to establish Equal Protection violation).
8

plaintiffs’ allegation that the defendants failed to consider the
Voting Rights Act in drafting the plan.
that

the

Voting

Rights

Act

does

The defendants point out
not

mandate

a

specific

consideration of race but, rather, forbids a “denial or abridgment”
of the right to vote on account of race.

The plaintiffs fail to

allege circumstances that suggest that the effect of the plan
denies or abridges the right to vote on account of race.
C.
The

defendants

next

challenge

the

sufficiency

of

the

plaintiffs’ allegations that “despite the fact that the AfricanAmerican population increased in all districts except District 4,
since the 2000 census, only three districts could be considered
minority ‘districts of opportunity’ where a minority could elect a
candidate of choice” and “Plan 3B is regressive in that it will
reduce African American representation on the Parish Council by
allowing only three majority African American districts out of
seven despite the fact that according to the latest census data,
the population of St. James Parish is fifty-two percent African
American.”

To the extent the plaintiffs suggest that Plan 3B is

actionable because it has not increased the opportunity to elect
minority candidates commensurate with minority population growth,
the defendants insist that no actionable claim is stated.

The

Court agrees. Section 2 of the Voting Rights Act expressly rejects
any such claim when it provides: “...nothing in this section

9

establishes a right to have members of a protected class elected in
numbers equal to their proportion in the population.”

42 U.S.C. §

1973(b).
D.
The defendants next address the plaintiffs’ allegation that
“the same number of people were not placed in each district so that
each person’s vote counts the same.

Specifically, in Districts 3,

5, 6, and 7, Alternative Plan 3B skews the ration of Black to White
voters to such a degree, that the minority voters in each of those
districts, be they black or white, will have no voice....

This

violates the Voting Rights Act of 1965 in that it has the effect of
diluting the minority vote.”

The defendants contend that the

plaintiffs seem to imply, in a conclusory fashion, that the plan
violates the one person, one vote principle. The defendants insist
that the plaintiffs’ conclusory allegations fall short of alleging
factual matter sufficient to state a facially plausible dilution
claim because they have failed to allege the districts involved,
how many people are impacted, and what race they are.
agrees.

The Court

Generalized criticisms of the plan such as one encounters

here fail to provide a sufficient factual basis to suggest that the
plaintiffs state a plausible entitlement for relief.
E.
The plaintiffs allege that:
Plan 3B demonstrates a plan which is very irregular and
obviously contains districts that have been racially
10

gerrymandered. Specifically, District 4, is drawn in a
way that joins voters whose farthest reach is separated
by 1 linear miles and runs from the western side of the
district all the way to the old Ferry Landing at Albert
Street in Lutcher, which covers two-thirds of the eastern
part of the Parish, and runs along the river and railroad
tracks, joining neighborhoods which are clearly diverse
and cannot possibly share a community of interest.
Similarly, District 5 spans greater than 10 linear miles,
and takes in numerous neighborhoods. Both districts are
examples of blatant cramming, and the council’s failure
to adhere to the rule of compactness. The redistricting
legislation is so extremely irregular on its face that it
rationally can be viewed only as an effort to segregate
the races for purposes of voting without regard for
traditional redistricting principles.5
The

defendants

point

out

that

sorting

out

the

conclusory

allegations and focusing on the factual allegations leaves only a
description of the geographic realities of St. James Parish. This,
the defendants insist, fails to assert a “denial or abridgement of
the right...to vote on account of race or color.”
agrees.

The Court

The three prerequisites to establishing a voting dilution

claim include that (1) the minority group must be sufficiently
large and geographically compact to constitute a majority in a
district; (2) the minority group must be politically cohesive; and
(3) the opposing majority votes as a bloc to defeat the minority’s
preferred

candidate.

Growe

v.

5

Emison,

507

U.S.

25,

40

The defendants point out an internal inconsistency in
the complaint: “[c]uriously, [this] Allegation...asserts that Plan
3B has the opposite effect of the [prior] Allegation.... While
[the prior allegation] claims that the plan widely disburses the
minority vote, [this allegation] asserts that the plan segregates
races.”
11

(1993)(citation omitted).

The plaintiffs fail to address these

three central elements, and fail to relate their geographical
description to voting dilution based on race.

Accordingly, the

plaintiffs’ allegations again fail to state a claim.
F.
Finally as to the plaintiffs’ Voting Rights Act claims, the
defendant challenges the sufficiency of the plaintiffs’ allegations
that:
The adoption and implementation of such a plan of
reapportionment by this public body dilutes the class
vote specifically defeating the requirements set forth in
the United States Constitution of “one man, one vote, one
person, one vote.”
Such action disenfranchises the
rights of the voters of other districts and discriminates
against minorities as well as individuals, specifically
violating the provisions of 42 U.S.C., Section 1981.
The defendants contend that this is merely rhetoric that fails to
even suggest the underlying facts about this plan or parish that
would give rise to an actionable claim. The Court agrees that such
generic allegations fail to pass muster under Twombly and Iqbal.
III.
The

defendants

finally

challenge

the

sufficiency

of

the

plaintiffs’ allegations that the redistricting plan violates the
Fifteenth Amendment, Section 1981, and certain state laws.
A.
The defendants contend that the plaintiffs fail to state a
claim for a Fifteenth Amendment violation because they mention it
without linking any factual allegations to it and because they fail
12

to state a claim for a violation of the Voting Rights Act.

The

Court agrees. When Congress amended the Voting Rights Act in 1982,
it “legislated beyond the reach of the Fifteenth Amendment.” Morse
v. Republican Party of Virginia, 517 U.S. 186 (1996).
B.
The defendants point out that the plaintiffs mention Section
19816 only in passing and that, in any event, they fail to state a
claim because any such claim would be derivative of their Voting
Rights Act claims.

The Court agrees.

Because the Court has

concluded that the plaintiffs fail to state a Voting Rights Act
claim, any attempt to assert a derivative Section 1981 claim also
fails.
C.
Finally, the defendants contend that the plaintiffs’ attempt
to plead state law claims also fail.

The plaintiffs appear to

invoke La.R.S. 17:71 and 71.3(B) to require election districts to
be compact and contiguous.

However, as the defendants point out,

those cited provisions govern redistricting for school boards.
Parish redistricting is governed by La.R.S. 33:1411, which by its
terms does not require the “compact and contiguous” districts as

6

To prevail under 42 U.S.C. § 1981, a plaintiff must
show: (1) the plaintiff is a member of a racial minority; (2) the
defendant’s intent to discriminate on the basis of race; and (3)
the discrimination concerned one or more of the activities of the
statute. Mian v. Donaldson, Lufkin & Jenrette Securities, 7 F.3d
1085, 1087 (2d Cir. 1993), cert. denied, 516 U.S. 824.
13

claimed by the plaintiffs.
that

to

the

extent

the

Accordingly, the defendants contend
plaintiffs

seek

violations, they fail to state a claim.
In

conclusion,

the

defendants

to

plead

state

law

Again, the Court agrees.

suggest

that,

after

being

stripped of the conclusory and formulaic recitations, the amended
complaint alleges only the following facts:
•
•
•
•
•
•

Plan 3B has a 9.2% deviation, which is below the 10% threshold
for a prima facie showing of an Equal Protection violation.
Since the 2000 census, African-American population increased
in all districts except District 4.
District 4 joins voters whose farthest reach is separately one
mile, and covers two-thirds of the eastern part of St. James
Parish.
District 5 spans greater than 10 miles, and takes in numerous
neighborhoods.
Plan 3B provides for three majority African American districts
out of seven.
The 2010 population of St. James Parish is 52% African
American.

Accepting all of this as true, and even without consideration of
plaintiffs’ two glaring defaults in responding, the plaintiffs have
failed

to

state

a

claim

for

which

relief

may

be

granted.

Accordingly, the defendants’ motion to dismiss the plaintiffs’
amended complaint is GRANTED. The plaintiffs’ claims are dismissed
with prejudice.

New Orleans, Louisiana, September 19, 2011
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

14