Price et al v. Housing Authority of New Orleans et al

Filing 44

ORDER AND REASONS granting 12 Motion to Dismiss for Lack of Jurisdiction, Motion to Dismiss for Failure to State a Claim filed by defendants James Ryan & Associates LLC and James Ryan, III. Signed by Judge Ivan L.R. Lemelle on 6/11/2012. (ijg, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ORA PRICE, ET AL.

CIVIL ACTION

VERSUS

NO. 12-992

HOUSING AUTHORITY OF NEW ORLEANS, ET AL.

SECTION B(2)

ORDER AND REASONS
Defendants James Ryan III and James Ryan III & Associates,
LLC (“Defendants”) filed a Motion to Dismiss (Rec. Doc. No. 12)
pursuant to Rules 12(b)(1) and 12(b)(6). In response, Plaintiffs
Ora,

Leonard,

and

Darryl

Price

(“Plaintiffs”)

submitted

a

Memorandum in Opposition (Rec. Doc. No. 30). For the reasons
articulated below,
IT IS ORDERED that Defendants’ Motion to Dismiss is GRANTED,
dismissing the claims against movants without prejudice.
PROCEDURAL HISTORY
On April 19, 2012, Plaintiffs filed their complaint in this
Court against Defendants, an attorney and his law firm, and
several others, including the Housing Authority of New Orleans
(“HANO”) and Interstate Realty Management Company (“Interstate
Realty”).
alleged

(Rec.
several

Doc.

No.

state

1

and

at

1).

federal

The

complaint

violations,

generally

the

latter

including deprivation of 14th Amendment rights, violation of the
United States Housing Act of 1937, as amended, 42 U.S.C. § 1437
et seq. (“United States Housing Act”), and deprivation of civil
rights under 42 U.S.C. §§ 1983 and 1985. Id. at 2.
Plaintiffs’ claims appear to arise out of events surrounding

their residential eviction from 3110 Edith Weston Place in New
Orleans, Louisiana. Id. at 6. Plaintiffs contend that they were
wrongly

evicted

premises

that

resulted

in

by

Interstate

involved
“police

Realty

Plaintiff

action

on

Ora
the

for

a

shooting

Prices’

on

the

grandson,

and

property.”

Id.

at

7-9.

Plaintiffs also insist that the subsequent termination by HANO of
their Section 8 voucher was wrongful. Id. at 9. Defendants were
retained as legal counsel for Interstate Realty.

Id.

at 10.

Plaintiffs alleged that Defendants “knowingly and intentionally
fabricated and filed a Rule to Evict plaintiffs in the First City
Court for the Parish of New Orleans,” and further, that the
police

report

of

the

incident

contradicted

the

“false

allegations” made by Defendants. Id.
Plaintiffs asserted in their complaint that they “possessed
a property interest in their housing unit pursuant to 42 U.S.C.A.
§ 1937 ... with a private right to enforce and protect their
rights....”

Id.

at

11.

Plaintiffs

also

asserted

that

their

occupancy of said unit was a “statutory entitlement” under the
United States Housing Act. Id. at 6. Plaintiffs specifically
alleged

in

their

complaint

that

“Defendant,

James

Ryan

&

Associates, L.L.C., in collaboration with [Interstate Realty — a
private entity] orchestrated a scheme to conspire to deprive the
plaintiffs of their property and liberty rights ....” Id. at 6.
CONTENTIONS OF DEFENDANTS

2

Defendants

claim

that

the

Court

lacks

federal

question

subject matter jurisdiction over Plaintiffs’ claims, and further
that Plaintiffs fail to state a claim upon which relief can be
granted. (Rec. Doc. No. 12 at 1). Defendants contend that despite
citing federal jurisdiction pursuant to 28 U.S.C. §§ 1331 and
1343, Plaintiffs “do not allege a single fact” supporting the
violation of any federal law, “or a deprivation of their civil
rights under color of law.” (Rec. Doc. No. 12-1 at 2). Beyond the
lack of subject matter jurisdiction, Defendants insist that the
complaint fails to state a claim or cause of action against them.
Id. at 3. Defendants request that the claims against them “be
dismissed at plaintiffs’ sole cost.” Id. at 4.
CONTENTIONS OF PLAINTIFFS
Plaintiffs

insist

that

federal

question

subject

matter

jurisdiction exists for their claims pursuant to 28 U.S.C. §
1343(a),1 42 U.S.C. § 1437(a), and 42 U.S.C. § 1983, and that
their

complaint

meets

the

requirements

necessary

to

state

a

claim. (Rec. Doc. No. 30 at 4-7). Plaintiffs also allege that the
Rule of Eviction that was filed by Defendants was inaccurate. Id.
at 5-6.
LAW AND ANALYSIS
1

28 U.S.C. § 1343(a) in pertinent part, provides for recovery: (1)“for any
act done in furtherance of any conspiracy mentioned in section 1985 of Title
42,” and (2) “from any person who fails to prevent or to aid in preventing any
wrongs mentioned in section 1985 of Title 42 which he had knowledge were about
to occur and power to prevent.” 28 U.S.C. § 1343(a)(1)-(a)(2).

3

A. Standard of Review
A court presented with a 12(b)(1) motion for lack of subject
matter

jurisdiction

should

consider

that

motion

first

before

addressing any motion regarding the merits of the case, so as to
avoid prematurely dismissing a case with prejudice. Hitt v. City
of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)(per curiam). A
court’s dismissal based on Rule 12(b)(1) is not a determination
on the merits and does not prevent the plaintiff from pursuing
the claim in a court with proper jurisdiction. Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001)(citing Hitt, 561 F.2d
at 608).
B. Lack of Subject Matter Jurisdiction
A lack of subject matter jurisdiction may be found in: (1)
the complaint, (2) the complaint supplemented by undisputed facts
contained in the record, or (3) “the complaint supplemented by
undisputed facts plus the court’s resolution of disputed facts.”
Id. (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659
(5th Cir. 1996)). The burden of proof for a Rule 12(b)(1) motion
is on the party asserting jurisdiction. Id. (citing McDaniel v.
United States, 899 F.Supp. 305, 307 (E.D. Tex. 1995)).
The parties do not allege and the facts do not show that
there is diversity jurisdiction under 28 U.S.C. § 1332. Absent
diversity, federal question jurisdiction is required. “‘[F]ederal
question’

jurisdiction

has

long

4

been

governed

by

the

well-

pleaded-complaint rule, which requires that a federal question be
facially

apparent

from

a

‘properly

pleaded

complaint.’”

Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 11 (2003) (quoting
Caterpillar,

Inc.

v.

Williams,

482

U.S.

386,

392

(1987)).

“[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has
alleged —but it has not ‘show[n]’— ‘that the pleader is entitled
to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)(quoting
FED. R. CIV. PRO. 8(a)(2)). In addition, “while legal conclusions
can provide the framework of a complaint, they must be supported
by factual allegations.” Id.
Plaintiffs filed their complaint pro se. The Supreme Court
has stated that “[a] document filed pro se ‘is to be liberally
construed,’ and ‘a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings
drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Despite
Plaintiffs’ citations of various federal statutory and state law
violations, Plaintiffs do not cite any facts which would provide
them with a federal cause of action against Defendants. (Rec.
Doc. No. 1, ¶11 at 6).
Although

Plaintiffs

claim

that

Defendants

“abused

the

process,” there is nothing in the record to show that Defendants,
as retained counsel for a private entity, acted under color of

5

law with public actors. 42 U.S.C. 1983. Furthermore, Plaintiffs
have cited no federal law that would allow them, third parties, a
cause of action against Defendants, as the retained counsel for
Interstate Realty in filing the Rule to Evict. See, e.g., Guthrie
v. Buckley, 246 F. Supp. 2d 589, 590-51 (E.D. Tex. 2003); see
also Lewis v. Am. Exploration Co., 4 F. Supp. 2d 673, 680 (S.D.
Tex. 1998) (both cases generally standing for the proposition
that attorneys cannot be sued for engaging in the duties of
representing their clients).
Even liberally construed, it is difficult to ascertain any
possible federal claim against Defendants that would not facially
flow from state law, given Plaintiffs’ claims of “conspiracy,”
“false allegations,” “slander,” and “fabrication of evidence.”
(Id. ¶¶11, 41 at 6, 10); (Rec. Doc. No. 30 at 4). Without any
supporting

facts

to

accompany

their

conclusory

allegations,

Plaintiffs have failed to meet their burden in showing that
federal

subject

matter

jurisdiction

exists

for

this

Court.2

Plaintiffs, however, should seek relief in the proper state court
for the state claims asserted here. Supplemental jurisdiction
over same here is not warranted and no prejudice flows from that
declination.
2

To the extent that any of these claims have already been raised and litigated
in state court, they may be considered barred. Allen v. McCurry, 449 U.S. 90,
94(1980). At this time, however, the record indicates that Plaintiffs have not
brought their claims in state court, but instead the only state court proceeding
that has occurred is that in which the Rule of Eviction was granted. (Rec. Doc.
No. 12-1 at 3).

6

B. Defendants’ 12(b)(6) Motion to Dismiss
Because this Court lacks jurisdiction over the instant case,
Defendants’ 12(b)(6) Motion to Dismiss for failure to state a
claim will not be considered at this time.3
CONCLUSION
Accordingly, and for the reasons articulated above, IT IS
ORDERED that Defendants’ Motion to Dismiss is GRANTED, dismissing
the claims against movants without prejudice.
New Orleans, Louisiana, this 11th day of June, 2012.

____________________________
UNITED STATES DISTRICT JUDGE

3

Alternatively, assuming there was jurisdiction, and in the interest of comity,
this Court would give full faith and credit to lawful decisions made by state
courts. Enochs v. Lampasas County, 641 F.3d 155, 160 (5th Cir. 2011).

7