Alfonso v. United States of America

Filing 59

ORDER granting 40 United States of America's Motion to Dismiss for Lack of Jurisdiction. Further Ordered that plaintiff's claims against defendant are DISMISSED without prejudice for lack of subject matter jurisdiction. Signed by Judge Carl Barbier on 6/3/13. (sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALFONSO

CIVIL ACTION

VERSUS

NO: 11-2749

UNITED STATES OF AMERICA

SECTION: "J” (2)

ORDER AND REASONS
Before
America’s

the

Court

Motion

to

Jurisdiction

(Rec.

are

Defendant

Dismiss

Doc.

40),

for

the
Lack

Plaintiff

United
of

States

of

Subject-Matter

Joseph

Alfonso,

IV’s

opposition thereto (Rec. Doc. 41), Defendant’s reply to same
(Rec.

Doc.

46),

and

Defendant’s

Supplemental

Memorandum

in

Support of its motion (Rec. Doc. 58). The motion was set for
submission on March 13, 2013, on the briefs. The Court, having
considered that motion and memoranda of counsel, the record, and
the applicable law, now finds that Defendant's motion should be
GRANTED for the reasons set forth more fully below.
PROCEDURAL HISTORY AND BACKGROUND FACTS
In this civil action, Plaintiff sues Defendant, the United
States of America, for injuries he incurred in a car accident.

1

Plaintiff alleges that the accident was caused by work performed
by members of the Louisiana National Guard (the “Guard”), whose
activities following Hurricane Katrina caused the accumulation of
mud on a roadway.

Plaintiff’s complaint alleges the following

facts. On or about November 15, 2005, Plaintiff was operating his
pickup truck eastbound on Louisiana Highway 39 in St. Bernard
Parish near Milepost 901.82.1

He encountered an enormous amount

of slippery mud on the highway and lost control of the vehicle,
from which he was ejected after the vehicle left the highway.2
As a result of the accident, Plaintiff’s truck was damaged, and
Plaintiff sustained injuries to his mind and body, including a
herniated disc in his back for which he has undergone surgery.3
Plaintiff also alleges that as a result of the accident, he has
sustained and/or will sustain fear of dying, pain, suffering,
mental anguish, emotional distress, loss of enjoyment of life,
medical expenses, loss of income, loss of earning capacity, and
property damage.4
Plaintiff’s

claim

for

1

Rec. Doc. 1, at 2, ¶ IV.

2

Rec. Doc. 1, at 2, ¶ V.

3

Rec. Doc. 1, at 2, ¶ VI.

4

money

Rec. Doc. 1, at 2, ¶ VII.

2

damages

against

the

United

States

is

brought

pursuant

to

the

Federal

Tort

Claims

Act

(“FTCA”).5 Plaintiff alleges that he exhausted his administrative
remedies before filing suit.6

Plaintiff asserts that Defendant

is responsible for the Guard’s tort liability in this case, and
that

the

Guard

is

responsible

for

Plaintiff’s

injuries.

Specifically, Plaintiff alleges that the Guard had established a
temporary base immediately adjacent to the accident site at St.
Bernard High School, where dozens of heavy equipment vehicles
were stationed.7
Guard

carried

He alleges that as part of its deployment, the

multiple

truckloads

of

mud

and/or

dirt

across

Highway 39, which resulted in the accumulation of mud that caused
the accident. Plaintiff alleges that it is the accumulation of
mud, along with rain on the morning of the accident, that created
the hazard that led to his

accident.8

Plaintiff filed the

instant lawsuit seeking recovery for his injuries on November 4,
2011.
Plaintiff filed a lawsuit based upon the same accident in
state court on October 13, 2006.

5

Rec. Doc. 1, at 1, ¶ III.

6

Rec. Doc. 1, at 3-4, ¶ XII.

7

Rec. Doc. 1, at 2, ¶ VIII.

8

Rec. Doc. 1, at 3-4, ¶ VIII.

3

Plaintiff asserts that the

State

of

Louisiana

(the

“State”)

has

consistently

taken

the

position in discovery in the state court action that the United
States and the State are two separate entities and that the State
has no knowledge of what activities the Guard was conducting at
the time and place of the accident.

Thus, he asserts that the

State’s position in the state court action precludes a finding in
this action that the United States was acting as a representative
of the State.9

Plaintiff avers that discovery in the state court

action has yet to reveal whether the Guard was acting in its
federal or state capacity at the time of the accident.

Thus,

although he argues in the state court action that the Guard was
acting in a state capacity, he argues in the alternative, in the
instant

action,

that

the

Guard

was

acting

in

a

federal

capacity.10
In

the

state

court

action,

Plaintiff

sued

the

State

Department of Transportation and Development (“DOTD”) and the
Military Department.11 The Louisiana Military Department removed
the case to this Court on July 19, 2007.

9

10

Thereafter, the Court

Rec. Doc. 1, at 4, ¶ XIII.
Rec. Doc. 1, at 5, ¶ XV.

11

The passenger in Plaintiff’s pickup truck also sued in state court, see
Melerine v. State of Louisiana, Civ. Action No. 07-3867, Rec. Doc. 1-2, which
case was consolidated with Plaintiff’s state court action after both suits were
removed to this Court, id., Rec. Doc. 4.

4

granted Plaintiff’s motion to remand.

The Court found that

DOTD’s failure to join in or consent to the removal was fatal to
the removal procedure and that the removal was untimely.

The

Court specifically stated that it did not answer the question of
whether federal subject matter jurisdiction existed.

Alfonso v.

Military Dep’t, No. 07-3778, 07-3867, 2007 WL 4114438, at *7
(E.D. La. Nov. 15, 2007).

At present, several years after the

Court remanded that case back to state court, said state court
litigation is ongoing. After the instant federal lawsuit against
the

United

States

was

filed

on

November

4,

2011,

it

was

transferred to this Section as a matter related to Civil Action
No. 07-3778.
On April 17, 2012, Defendant filed a Motion to Dismiss for
Lack of Jurisdiction with the Court.12 After a status conference
with the parties, the Court allowed the parties to engage in
limited
motion.13

jurisdictional
On

June

20,

discovery
2012,

after

before
the

hearing

parties

Defendant’s

had

completed

discovery, the Court heard oral argument on Defendant’s motion.
After hearing the parties’ arguments, the Court determined that
certain information was still necessary to make a finding as to

12

Rec. Doc. 11.

13

Rec. Doc. 21.

5

the Court’s subject matter jurisdiction. Therefore, the Court
denied

Defendant’s

motion

without

prejudice

and

ordered

that

Plaintiff issue a subpoena to the State of Louisiana, ordering
the state to turn over any orders issued to the Guard during
November 2005.14 Likewise, the Court also ordered Plaintiff to
submit

a

proposed

order

to

the

Court

requesting

these

same

documents from the United States.15 Plaintiff complied with the
Court’s order on June 26, 2012, and on June 28, 2012, this Court
ordered the United States to produce “all orders related to
activities of the LA National Guard that relate in any way to the
work that was being done in St. Bernard Parish on or around
November 15, 2005, on or near Louisiana Highway 39 (mileposts
900-902).”16
On February 26, 2013, after completing the aforementioned
discovery, Defendant refiled its Motion to Dismiss for Lack of
Jurisdiction. Plaintiff responded on March 5, 2013, incorporating
into

its

response

the

same

arguments

that

it

raised

in

its

opposition to Defendant’s original motion. Defendant replied on
March

12,

2013.

14

16,

2013,

Rec. Doc. 27.

16

April

Rec. Doc. 27.

15

On

Rec. Doc. 29.

6

Defendant

also

filed

a

Supplemental Memorandum in Support of its Motion to Dismiss,
noting that the Guard had produced additional documents that were
relevant to the work performed in St. Bernard in November 2005.
THE PARTIES’ ARGUMENTS
Defendant moves the Court to dismiss Plaintiff’s complaint
for

lack

of

subject

matter

jurisdiction

under

the

FTCA.

Defendant argues that because its liability under the FTCA is
analogized to that of a private individual in like circumstances
under state law, and because the Louisiana Homeland Security and
Emergency Assistance and Disaster Act (“the LHSEADA” or “the
Act”)

immunizes

disaster-recovery

individuals

from

activities,

the

tort
Court

liability
lacks

based

subject

on

matter

jurisdiction over Plaintiff’s claim. Defendant argues that the
three elements required for it to invoke the LHSEADA immunity are
met in this case.

First, it argues that the Guardsmen alleged to

be at fault were under Title 32 federal status working during a
declared state of emergency, and they were under the control of a
state military officer, such that a private individual in like
circumstances

would

be

immunized

under

the

LHSEADA.

Second,

Defendant avers that the Guardsmen were engaged in “emergency
preparedness activities,” within the meaning of the Act, at the
time of the alleged tort. Third, Defendant argues that there is

7

no allegation that the Guardsmen alleged to be at fault failed to
comply

with

the

rules

and

regulations

otherwise engaged in willful misconduct.

of

LHSEADA

or

were

Because it is immunized

under the FTCA, based on the Louisiana statute, Defendant argues
that

the

Court

lacks

subject

matter

jurisdiction

and

should

dismiss Plaintiff’s claim. In support of its arguments, Defendant
points

to

the

declaration

and

deposition

testimony

of

Col.

Douglas Mouton, the Commander of the 225th Engineering Group, the
search declaration of Master Sergeant Den Davis, the deposition
testimony of

John Rahaim, Jr. (“Mr. Rahaim”), Deputy Director of

the St. Bernard Department of Homeland Security and Emergency
Preparedness, the deposition testimony and journals of Robert
Turner (“Mr. Turner”), the Regional Director of the Southeast
Louisiana

Flood

Protection

Authority,

and

various

Fragmentary

Orders issued by the Guard in November 2005.
In addition to the aforementioned arguments, Defendant also
directly addresses arguments that it anticipates Plaintiff will
raise. In particular, Defendant asserts that any argument that
Plaintiff makes regarding the timing of the operations is offbase. Specifically, Defendant contends that in this instance, any
work that the Guard performed was in direct response to Hurricane
Katrina and, therefore, fits into the definition of emergency

8

preparedness under the statute. Defendant argues that Hurricane
Katrina provides the "particular emergency" that is necessary for
the statute to be applied and, thus, Plaintiff’s arguments about
a lack of a temporal connection between the accident and the
disaster are without merit. In support, Defendant point to case
law in which courts have found that post-Katrina work that took
place

after

preparedness

this

Plaintiff’s

activity

under

accident

the

LHSEADA

constituted

emergency

or

statutes.

similar

Furthermore, Defendant asserts that in Plaintiff’s opposition to
its first motion to dismiss, Plaintiff argued that Defendant must
present proof that the Guard’s actions were directly related to
recovery from the storms, and not in anticipation of future
unnamed
Court

disasters.
need

not

Specifically,

distinguish

Defendant

between

asserts

whether

this

Guard

the

that

was

performing levee repair work versus levee improvement work, i.e.
raising

the

levee

higher

than

pre-Katrina

heights.

Defendant

contends that any work that the Guard was performing on the
levees at this time, all of which would have caused them to move
large

amounts

of

dirt,

was

in

direct

response

to

Hurricane

Katrina. Therefore, Defendant contends it was assuredly the type
of

emergency

work

contemplated

by

the

statute.

In

general,

Defendant alleges that the Guard was moving debris from roadways

9

and from the levees.
In Plaintiff's first opposition (which was incorporated into
his renewed opposition), he argues that the Court has subject
matter jurisdiction under the FTCA.17

He contends that immunity

under the LHSEADA is an affirmative defense, which Defendant has
not proven.

Specifically, he argues that Defendant has not

proven which Guardsmen were working in the area of the accident
and whether those Guardsmen were conducting activities protected
by the Act. Plaintiff cites (1) a videotape filmed the day after
the accident that allegedly shows the battalion numbers of Guard
vehicles deployed to the nearby area, and (2) the deposition
testimony of Col. Douglas Mouton that refers to two specific
battalions distinct from the battalions shown in the videotaped
footage. Plaintiff also notes Col. Mouton’s testimony concerning
a videotape and maps of the area, which depict a canal flowing
parallel to Highway 39, which canal leads to a pumping station
located
School.18

directly

across

the

highway

from

St.

Bernard

High

Plaintiff argues that considering the scant evidence

17
Here, the Court is specifically referring to the arguments that
Plaintiff made in the first opposition that was submitted to the Court in
conjunction with Defendant's original motion to dismiss. That opposition is
Record Document 22.
18

This canal is referred to as the Arpent Canal. A nonfederal levee runs
along this canal to the north of Highway 39. The pumping station nearby is called
the E.J. Gore Pumping station. Defendant has noted that many of the Guard’s
fragmentary orders refer to this as pumping station #5.

10

in the record, it is more likely than not that the Guard was
performing canal work and/or pumping station maintenance at the
time of the accident, as Highway 39 had been clear of debris for
nearly two months at the time of the accident.19
Plaintiff emphasizes that Defendant cannot claim that every
Guard activity in the vicinity of the accident was in response to
Hurricane Katrina without offering supporting proof, but rather,
Defendant must show with specificity what it was doing and how
those activities related to an emergency response.

Plaintiff

argues that the fact that a state of emergency was in effect at
the time of the accident is not a decisive factor, nor is it
relevant. Instead, Plaintiff contends a close temporal connection
is required between the disaster and the activity at issue for
immunity under the Act to be implicated.
argues

that

his

accident

occurred

In this case, Plaintiff

78

days

after

Hurricane

Katrina’s landfall. Plaintiff asserts that at that time many
Louisiana citizens had returned to their normal lives and debris
had been cleared. Thus, Plaintiff asserts that the Guard’s work
is temporally removed from the disaster.

In summarizing his

argument that the LHSEADA does not apply in this case, Plaintiff

19
Defendant’s second Motion to Dismiss addressed this contention by noting
that debris was also being removed from the levees in the area of the accident.

11

argues that Defendant “has failed to prove a specific response
with a specific temporal connection to a specific emergency that
caused the injuries in dispute.”20
Furthermore, in Plaintiff's second opposition, he proposes
two

additional

arguments

against

Defendant's

motion.21

First,

Plaintiff contends that Defendant has not done enough to prove
its case. Specifically, Plaintiff asserts that during the process
of discovery Defendant was made aware of multiple guardsmen who
it

could

have

deposed

in

order

to

find

out

more

specific

information, yet it chose not to do so. Plaintiff argues that
there is sufficient evidence in the record to indicate that some
orders that were issued by the Guard should be recoverable and,
therefore, since Defendant has not produced those records or
deposed those other individuals, the Court should take an adverse
inference against the Defendant. Second, Plaintiff argues that
the evidence that is in the record does not show that the Guard
was participating in debris removal, but instead, proves that the
Guard was actually tasked with improving the nonfederal levees in
St.

Bernard

20

Parish

by

raising

them

above

their

pre-Katrina

Rec. Doc. 22, at 11.

21

Here, the Court is specifically referring to the arguments that
Plaintiff makes in his second opposition; the opposition to the instant motion
to dismiss.

12

heights. Plaintiff argues that (1) such activity is outside of
the scope of emergency preparedness (and/or the Guard’s orders),
and (2) that the activity was not associated with any specific
disaster, but rather, was looking forward to an unnamed disaster
and, therefore, not included under the immunity statute.
In addition to these arguments, Plaintiff spends the latter
half

of

his

first

opposition

unconstitutional

under

Constitutions.22

In

Plaintiff

reiterates

both

the

providing
that

arguing

that

United

States

background

the

the

Guardsmen

for

LHSEADA

is

and

Louisiana

his

argument,

whose

activities

allegedly caused his accident were in a Title 32 “hybrid status”
in which the federal government had specifically assumed what was
traditionally the liability of the State for the negligent acts
of Guardsmen.

Although Defendant argues that the FTCA requires

its liability to be analogized to that of a private party under
state law, Plaintiff avers that to treat the United States as a
private party in this Title 32 scenario defeats the intent of the
Louisiana Legislature and Congress to have the federal government

22
On April 23, 2012, Plaintiff filed a notice of constitutional challenge,
Rec. Doc. 12, and on April 26, 2012, the Court certified to the Attorney General
for the State that the constitutionality of the LHSEADA has been questioned in
this litigation, Rec. Doc. 14. The Attorney General has not intervened in this
case.
In the state court litigation, Plaintiff moved for partial summary
judgment regarding the unconstitutionality of the Act. See Rec. Doc. 13-5
(Plaintiff’s state-court memorandum in support of his motion for partial summary
judgment).

13

assume

vicarious

scenarios.

In

liability
other

of

words,

Guardsmen

Plaintiff

in

Title

avers

32

that

in

status
such

a

hybrid-status case as this one, the proper FTCA analysis is not
the traditional question of how a private defendant would be
treated under like circumstances, but rather what liability the
State would have had but for the financial relief provided by the
United States by virtue of Title 32 status.

Plaintiff argues

that because the proper analysis is whether the State would be
immune

under

like

circumstances,

and

because

the

statute

is

unconstitutional, Defendant is not immunized from liability by
the LHSEADA.
Although

Defendant

has

not

substantively

responded

to

Plaintiff’s arguments about the unconstitutionality of LHSEADA,
Defendant

asserts

that

the

court

need

not

reach

the

constitutionality question. Defendant contends that Plaintiff’s
arguments

hinge

on

the

question

of

whether

this

statute

is

unconstitutional because it has allowed the State to completely
immunize

itself,

in

violation

of

the

constitution.

asserts that in an action proceeding under the FTCA,

Defendant

the central

question is not how the federal government acting as the state is
treated, but rather, how a private citizen treated under the law.
Defendant

contends

that

because

14

this

case

does

not

directly

implicate

the

immunity

of

the

State,

the

question

of

the

constitutionality of LHSEADA is not squarely before this Court
and, therefore, need not be reached.
LEGAL STANDARD
In deciding a motion to dismiss for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1), “the
district court is ‘free to weigh the evidence and resolve factual
disputes in order to satisfy itself that it has the power to hear
the case.’”

Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th

Cir. 2005).

The party asserting jurisdiction must carry the

burden of proof for a Rule 12(b)(1) motion to dismiss.

Randall

D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762 (5th Cir.
2011).

The standard of review for a motion to dismiss under Rule

12(b)(1) is the same as that for a motion to dismiss pursuant to
Rule 12(b)(6).

United States v. City of New Orleans, No. 02-

3618, 2003 WL 22208578, at *1 (E.D. La. Sept. 19, 2003).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts 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, 547
(2007)).

A claim is facially plausible when the plaintiff pleads

facts that allow the court to “draw the reasonable inference that

15

the defendant is liable for the misconduct alleged.”

Id.

A

court must accept all well-pleaded facts as true and must draw
all reasonable inferences in favor of the plaintiff.

Lormand v.

U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker
v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).

The court is not,

however, bound to accept as true legal conclusions couched as
factual allegations.

Iqbal, 556 U.S. at 678.
DISCUSSION

“The

Federal

Tort

Claims

Act

is

a

limited

waiver

of

sovereign immunity, making the Federal Government liable to the
same extent as a private party for certain torts of federal
employees acting within the scope of their employment.”
States v. Orleans, 425 U.S. 807, 813 (1976).

United

It is undisputed in

this case that the Guard members who allegedly worked in the
vicinity of the location of Plaintiff’s accident were in Title 32
federal status,23 such that they are employees of the federal
government for whom Defendant could be liable under the FTCA.

28

U.S.C. § 2671 (“‘Employee of the government’ includes . . .
members of the National Guard while engaged in training or duty
under section 115, 316, 502, 503, 504, or 505 of title 32 . . .

23

See Rec. Doc. 11-2, at 2 (stating that Army records reflect that
Guardsmen were in such status); Rec. Doc. 11-2, at 5 (stating that it is
uncontested that members of the Guard were in Title 32 status in November 2005).

16

.”).

Because

Plaintiff

has

sued

Defendant

under

the

FTCA,

Louisiana law applies to govern Defendant’s potential liability.
See Alexander v. United States, 605 F.2d 828, 832 (5th Cir. 1979)
(“[L]iability under the FTCA is governed by state law . . . .”);
In re Supreme Beef Processors, Inc., 468 F.3d 248, 252 (5th Cir.
2006)

(“The

against

FTCA

the

allows

federal

a

plaintiff

government,

and

to
it

pursue
holds

tort

the

actions

government

liable as if it were a defendant in state court, subject to
strict limitations.”)
In applying Louisiana law to an FTCA claim such as this one,
the

Court

must

circumstances

consider

would

be

whether

liable

a

under

private
state

person

law.

In

in

like

re

Fema

Trailer Formaldehyde Prods. Liab. Litig., 719 F. Supp. 2d 677,
684 (E.D. La. 2010) (“Therefore, if a private person under ‘like
circumstances’ would be shielded from liability pursuant to a
state statute, the strict construction required by the Supreme
Court

dictates

subject-matter

that

lower

courts

jurisdiction.”).

decline

Accordingly,

to

exercise

Defendant

may

“raise any and all defenses that would potentially be available
to a private citizen or entity under state law.”

17

Id.

The

LHSEADA is such a state law defense,24 and it is the sole basis
for Defendant’s motion to dismiss for lack of subject matter
jurisdiction.

The Act reads, in pertinent part:

Neither

the

state

nor

any

political

subdivision

thereof, nor other agencies, nor, except in case of
willful

misconduct,

the

agents’

employees

or

representatives of any of them engaged in any homeland
security and emergency preparedness activities, while
complying

with

or

attempting

to

comply

with

this

Chapter or any rule or regulation promulgated pursuant
to the provisions of this Chapter shall be liable for
the death of or any injury to persons or damage to
property as a result of such activity.

LA. REV. STAT. § 29:735(A)(1) (emphasis added).
argues

that

the

Guardsmen

in

Title

32

Thus, Defendant

federal

status

were

“representatives” of the State, and that their debris-removal

24
Court decisions within this circuit have applied the Act in FTCA tort
cases concerning Guardsmen performing disaster-recovery work in the aftermath of
natural disasters. See Lumpkin v. Lanfair, No. 09-6248, 2010 WL 3825427 (E.D.
La. Sept. 23, 2010) (Hurricane Gustav); Lemoine v. United States, No. 07-8478,
2009 WL 2496561 (E.D. La. Aug. 13, 2009) (Hurricane Katrina); see also Robin v.
United States, No. 04-2230, 2006 WL 2038169 (E.D. La. Jul. 17, 2006) (agent for
United States Wildlife and Fisheries following Tropical Storm Isadore).

18

activities were “emergency preparedness activities,” such that
Defendant is immunized from tort liability under the Act.
Defendant proposes a three-part test for invocation of the
Act:

(1) that the Guardsmen were agents or representatives of

the State; (2) that they were engaged in emergency preparedness
activities; and (3) that they had complied with regulations of
the

Act.25

proposed

The

test,

Court

which

turns

is

to

the

dispositive

second
of

the

element

of

this

instant

motion.26

Unless the Guardsmen for which Defendant may be responsible under
the FTCA were engaged in “emergency preparedness activities” that
were the cause of the accident, Defendant has no possible claim
to immunity under the Act. In general, emergency preparedness is
defined as “the mitigation of, preparation for, response to, and
the recovery from emergencies or disasters.” La. Rev. Stat. §
29:732(4). Debris removal, the primary activity the Defendant
alleges the Guard was participating in, would constitute such
activity.27 Likewise, courts have also found that the following

25

Rec. Doc.40-2, at 14-15.

26
Because it is uncontested that Defendant was operating in Title 32
status and because Plaintiff has not asserted that Defendant was engaged in
willful misconduct, the Court finds that factor one and three are met in this
case.
27

See Castille v. Lafayette City-Parish Consol. Gov’t, 2004-1569, p.3 (La.
App. 3d Cir. 3/2/05); 896 So. 2d 1261, 1263 (clearing of roadways of debris
deposited by hurricane involved emergency preparedness activities, such that the
Act applied).

19

constitute “emergency preparedness” activities: checking culverts
and drainage structures for debris, transporting relief supplies,
and hauling asphalt. Fryoux v. Tensas Basin Levee Dist., 12-997
(La. App. 3 Cir. 2/6/13); 2013 WL 440129, at *2-3; Lumpkin, 2010
WL 3825427 at *5; Lemoine, 2009 WL 2496956 at *3. While true that
Plaintiff

generally

bears

the

burden

of

demonstrating

the

existence of jurisdiction, Randall D. Wolcott, M.D., P.A., 635
F.3d at 762, under Louisiana law, a defendant has the burden of
proving its entitlement to an affirmative defense.

Banks v.

Parish of Jefferson, 08-CA-27, p.9 (La. App. 5th Cir. 6/19/08);
990 So. 2d 26, 30.

The LHSEADA immunity defense is such an

affirmative defense. Id. Thus, Defendant must point to evidence
establishing the applicability of the immunity to this case.
Immunity statutes such as this one are strictly construed against
the party claiming immunity. Id.
In support of its assertion that the Guard was performing
emergency preparedness activities in the vicinity of Plaintiff’s
accident on the date in question, Defendant submits the following
evidence. First, Defendant points to various Fragmentary Orders
(“FRAGO”)

produced

by

the

Guard

during

November

2005.

For

example, FRAGO 05-09, issued on November 5, 2005, and labeled
“Emergency Preparedness,”

states, in pertinent part, that the

20

205th and the 225th Engineering Group shall,

Install culverts on 40 Arpent Canal. Continue clearing
and grubbing on canal from pump station #5, eastward….
Raise height of levee from Violet Canal to pump station
#5.***Repair road on top of levee from Pump Station #5 to
intersection of Violet Canal and St. Bernard Highway.
Prepare

this

road

for

a

high

volume

of

dump

truck

traffic. Use a dozer to push trash along Judge Perez
Highway at Pump Station #5 to one side of site. This area
will be used to stockpile fill for raising the levee.28

Defendant also notes that FRAGO 27 orders the Engineering group to
“clear

and

grub”29 the

Arpent

Canal

levee

from

Pump

Station

#5

eastward.30 Likewise, Defendant points to multiple orders issued on
November 9, 2005, which indicate that the Guard was “conduct[ing]
debris removal” in the area of the accident site and “provid[ing]
overwatch

28

and

repair

of

key

levee

sites.”31

Furthermore,

orders

Rec. Doc. 58-1, at 1-2.

29
“Grub” is defined as “clear[ing] by digging up roots and stumps” or “to
dig up by or as if by the roots.” Merriam-Webster’s Collegiate Dictionary 515
(10th ed. 1999).

30

Rec. Doc. 58-1, at 10-11.

31

Rec. Doc. Rec. Doc. 58-1, at 14-18, 21, 23, 28.

21

issued

from

November

11,

2005

through

the

date

of

Plaintiff’s

accident also states that the Guard continued to perform “levee
repair” and “clearing and grubbing” in the area in question.32
Second,

Defendant

points

to

Col.

Mouton’s

declaration

and

deposition testimony. Defendant notes that Col. Mouton testified
that

the

Guard’s

mission

post-Katrina

“was

to

respond

to

the

disaster, to make roads accessible, to mitigate hazards[,]” and
that in order to do that the Guard “moved a tremendous amount of
debris around, [] moved a tremendous amount of dirt around because
that’s the functionality of [the Guard].”33 Furthermore, Col. Mouton
testified that debris removal was not limited to the streets, but
also constituted removing debris from the levees, water structures,
and repairing gaps in levees.34 Third, Defendant notes that Mr.
Rahaim testified that debris removal occurred around the Arpent
Canal.35
Lastly, Defendant points to Mr. Turner’s testimony, in which
Mr. Turner explained that

“the [Guard] was doing a whole lot of

things in St. Bernard [post-Katrina]. And primarily what they were
doing for the Levee District was assisting us . . . in clearing the

32

Rec. Doc. 58-1, at 30 -42.

33

Rec. Doc. 40-5, at 12-13.

34

Rec. Doc. 40-5, at 17.

35

Rec. Doc. 40-6, at 17.

22

debris off the levees. And, and in the case of the nonfederal
levee,36 ultimately I think they provided assistance in raising that
levee up to, you know, a couple feet higher than what it was prior
to Katrina.”37 Mr. Turner also testified that the

levee repair work

that was done at the Arpent Canal was a direct result of Hurricane
Katrina.38 In particular, Mr. Robert Turner explains that the parish
sought to have the nonfederal levees raised because the federal
system was “totally degraded” and the nonfederal system was the
only thing providing protection.39 Mr. Turner noted that the federal
system was degraded as a result of Hurricane Katrina.40
On whole, the evidence proffered by the Defendant makes it
clear to the Court that during November 2005, the Guard was engaged
in debris removal and levee repair near the site of Plaintiff’s
accident. All activities, which were a direct result of Hurricane
Katrina,

constitute

“emergency

preparedness”

activities

for

the

purposes of LHSEADA. To the extent that Plaintiff has tried to
distinguish these activities by arguing that raising the nonfederal
levee is distinct from repairing the levee, the Court looks to Mr.

36

The levee on the north side of the Arpent Canal, which is the closest
levee to the accident site, is a nonfederal levee.
37

Rec. Doc. 40-7, at 5.

38

Rec. Doc. 40-7, at 6-7.

39

Rec. Doc. 40-7, at 7.

40

Rec. Doc. 40-7, at 7.

23

Turner’s testimony, noting that the levees were only raised due to
the damage caused by Katrina and that, but for Katrina, none of the
levee activity would have taken place.41 Furthermore, to the extent
that

Plaintiff

proximity

to

has

argued

Katrina

for

that
the

there

is

Guard’s

not

enough

activity

to

temporal

qualify

as

“Emergency Preparedness,” the Court notes that other courts have
found

that

accidents

that

occurred

even

later

than

Plaintiff’s

accident have qualified for the immunity provisions under LHSEADA
Estate of Martin v. United States, No. 08-

and similar statutes.

157, 2010 WL 2985471, at *3-4 (S.D. Miss. July 23, 2013) (applying
immunity to post-Katrina accident that occurred on January 18, 2006
under similar Mississippi Statute); Lemoine, 2009 WL 2496561, at
*2-3 (applying immunity to post-Katrina accident that occurred on
November

30,

engaging

in

Plaintiff’s

2005).

Thus,

“emergency
accident

the

Court

occurred

and,

that

activity

preparedness”

finds

at

as

such,

that

Defendant
the

time

was
that

Defendant

is

immune from liability under the FTCA.
Lastly,

with

respect

to

Plaintiff’s

constitutionality

arguments, the Court agrees with Defendant. The precise issue that
Plaintiff

claims

is

unconstitutional,

41

namely,

the

impermissible

The Court also notes that based on the evidence in front of it would be
impossible to separate the tasks of raising the levees from repairing them and
clearing off debris. All of these acts occurred simultaneously over the course
of November and thus, are all “emergency preparedness” activity within the
context of this case.

24

granting of absolute immunity to the State of Louisiana, is not
squarely before the Court at this time. As Plaintiff has noted, the
United

States

and

the

State

are

separate

in

this

action,

and

Plaintiff is precluded from arguing that the United States was
acting on the State’s behalf.42 Furthermore, under the FTCA, the
immunity

analysis

places

the

United

States

in

the

shoes

of

a

private individual, not the State; thus, the Court finds that the
specific constitutional question that Plaintiff seeks to raise is
not squarely implicated here and, therefore, does not address it at
this time. Accordingly,

IT IS ORDERED that Defendant’s motion is GRANTED.
IT

IS

FURTHER

ORDERED

that

Plaintiff’s

claims

against

Defendant are DISMISSED without prejudice for lack of subject
matter jurisdiction.
New Orleans, Louisiana this 3rd day of June, 2013.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

42

Rec. Doc. 1, at 4, ¶ XIII.

25