Millennium Group I, LLC v. Jefferson Parish et al

Filing 48

ORDER & REASONS plaintiff's request for a preliminary injunction is DENIED and granting the Parish's 15 Motion for Summary Judgment. The action is DISMISSED with prejudice. Signed by Judge Martin L.C. Feldman on 11/21/2013. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MILLENNIUM GROUP I, LLC

CIVIL ACTION

VERSUS

NO. 13-499

JEFFERSON PARISH

SECTION “F”
ORDER & REASONS

Before the Court is defendant's motion to dismiss under Rule
12(b)(6), or for summary judgment under Rule 56.

For the reasons

that follow, the motion is GRANTED.
Background
This

case

involves

plaintiff's

federal

constitutional

challenges to Section 19-21(b) of the Jefferson Parish Code of
Ordinances,

which

authorizes

the

Parish

to

remove

overgrown

vegetation on private property and then bill the owner the actual
cost plus a 100% surcharge.
The plaintiff in this case, Millennium Group I, LLC, owns land
located in the 6400 block of Riverside Drive in Metairie, Jefferson
Parish,

Louisiana.

The

plaintiff

was

first

cited

for

Code

violations in September 2006, when an inspection revealed weeds
over twelve-inches high on the plaintiff's property.

In October

2006, the Parish sent the plaintiff a Notice of Violation by
certified mail to both the plaintiff's business address and its
counsel and agent for service of process.

1

The Notice of Violation

included the following information:

that the plaintiff was in

violation of the Code by having vegetation over twelve-inches high
on its property; instructions on how to bring the property into
compliance; notice that the Parish would charge the cost of removal
plus a 100% surcharge if the plaintiff failed to timely bring the
property into compliance; and notice that if the plaintiff failed
to pay the bill within thirty days, a lien would be recorded on the
property.

The Code also provided a hearing process and notice.

After more inspections revealed the plaintiff's failure to
bring the property into compliance, the defendant sent a contractor
to cut the grass and remove debris from the plaintiff's property.
Notably,

the

photographs.

contractor

documented

his

work

through

various

Then, in accordance with the Parish's notice, the

defendant sent the plaintiff an invoice for the cost of the
contractor's services plus a 100% surcharge.

After the plaintiff

failed to timely pay the invoice, the defendant recorded a lien
against the property.
In April 2007, the plaintiff received another citation for
overgrown vegetation.

The Parish sent another Notice of Violation

by certified mail, which further explained that the Code authorizes
the Parish to have the property cut on a monthly basis after
providing one notification per calendar year.

Pursuant to that

procedure, from 2007 to 2013, the plaintiff received multiple
citations for overgrown vegetation.

2

When the plaintiff repeatedly

failed to bring the property into compliance, the Parish, as
required by the Code, sent a contractor to cut the plaintiff's
grass,

invoiced

the

plaintiff

the

actual

cost

plus

a

100%

surcharge, and recorded liens on the property when those bills also
went unpaid.
In March 2009, the plaintiff filed a lawsuit in Louisiana
state court alleging federal and state law claims and requesting
injunctive and declaratory relief.1

In March 2013, the plaintiff

filed this federal suit, alleging federal and state law claims, and
requesting injunctive relief and damages.

In this lawsuit, the

plaintiff first alleges that Code Section 19-21(b) violates its
rights

to

procedural

and

substantive

due

process

under

Fourteenth Amendment to the United States Constitution.

the
The

plaintiff also alleges that the Parish committed trespass and
conversion and violated the Louisiana Timber Piracy Statute and the
Louisiana Unfair Trade Practices Act.
The defendant now moves to dismiss under Rule 12(b)(6), or,
alternatively, for summary judgment under Rule 56.
I.
A.
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state

1

Apparently, the plaintiff's request for injunctive relief
was denied but the lawsuit otherwise remains pending.
3

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
them in the light most favorable to the plaintiff.’” See Martin K.
Eby Constr. Co. v. Dall. 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, 677 F.2d at 1050.

Indeed, the Court must first identify

allegations that are conclusory and, thus, not entitled to the
assumption of truth.
(2009).

Ashcroft v. Iqbal, 556 U.S. 662, 678-79

A corollary: legal conclusions “must be supported by

factual allegations.” Id. at 678.

Assuming the veracity of the

well-pleaded factual allegations, the Court must then determine
“whether they plausibly give rise to an entitlement to relief.”
Id. at 679.
“‘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, 556 U.S. at 678)(internal
quotation marks omitted).

“Factual allegations must be enough to

4

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).”

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (citations and footnote omitted). “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.”

Iqbal, 556 U.S. at 678 (“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. at 679.

“Where a complaint pleads facts that

are merely consistent with a defendant’s liability, it stops short
of the line between possibility and plausibility of entitlement to
relief.” Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557).

“[A] plaintiff’s obligation to provide the

‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”

Twombly, 550 U.S. at

555 (alteration in original) (citation omitted).
In deciding a motion to dismiss, the Court may consider
documents that are essentially “part of the pleadings.”

That is,

any documents attached to or incorporated in the plaintiff’s
complaint that are central to the plaintiff’s claim for relief.

5

Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th
Cir. 2004) (citing Collins v. Morgan Stanley Dean Witter, 224 F.3d
496, 498-99 (5th Cir. 2000)).

Also, the Court is permitted to

consider matters of public record and other matters subject to
judicial notice without converting a motion to dismiss into one for
summary judgment.

See United States ex rel. Willard v. Humana

Health Plan of Tex. Inc.,

336 F.3d 375, 379 (5th Cir. 2003).

However, if the Court considers matters outside of the pleadings,
it must convert a motion to dismiss into a motion for summary
judgment.

Burns v. Harris Cnty. Bail Bond Bd., 139 F.3d 513, 517

(5th Cir. 1998).
B.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine issue as to
any material fact such that the moving party is entitled to
judgment as a matter of law.

No genuine issue of fact exists if

the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.

See Matsushita Elec. Indus. Co.

v. Zenith Radio., 475 U.S. 574, 586 (1986).

A genuine issue of

fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported

6

motion.

See

id.

Therefore,

"[i]f

the

evidence

is

merely

colorable, or is not significantly probative," summary judgment is
appropriate.

Id. at 249-50 (citations omitted).

Summary judgment

is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).

See Celotex Corp. v. Catrett,

In this regard, the non-moving party

must do more than simply deny the allegations raised by the moving
party.

See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d

646, 649 (5th Cir. 1992).

Rather, he must come forward with

competent evidence, such as affidavits or depositions, to buttress
his claims.

Id.

Hearsay evidence and unsworn documents do not

qualify as competent opposing evidence.

Martin v. John W. Stone

Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987). Finally, in
evaluating the summary judgment motion, the Court must read the
facts

in

the

light

most

favorable

to

the

non-moving

party.

Anderson, 477 U.S. at 255.
II.
The Court first considers the claim that Code § 19-21(b)
violates plaintiff's rights to substantive and procedural due
process

under

the

Fourteenth

Amendment

to

the

United

States

Constitution.
A.
Section 19-21(b)(1), entitled "Abatement of weeds by parish,"
provides:

7

"[I]f the violation consists of weeds, grass or other
vegetation on property and is not abated within five (5)
days of the date on [sic] notification (which may be via
U.S. First Class Mail or posting of the property), with
said notice only being required to be sent to the
property owner once every calendar year, the Parish,
through
the
Department
of
Inspection
and
Code
Enforcement, is hereby authorized to cut, destroy and
remove all such grass, weeds and other deleterious or
unhealthy growths of vegetation on an as needed basis in
accordance with this code, and the property owner, as
shown on the latest property assessment rolls and/or
conveyance records, shall be assessed a charge for the
cutting, destruction and removal. If the costs to the
parish for the cutting, destruction and/or removal exceed
the amount of one hundred dollars ($100.00), the owner of
the property shall be assessed the actual cost plus a
surcharge equal to one hundred (100) percent of the costs
to cover inspection and administrative costs.
B.
The substantive component of due process protects fundamental
rights that are so “implicit in the concept of ordered liberty”
that

“neither

sacrificed.”
“Fundamental

liberty
Palko

rights

nor
v.

justice

would

Connecticut,

protected

by

302

exist

if

U.S.

substantive

due

they

319

were

(1937).

process

are

protected from certain state actions regardless of what procedures
the state uses.”

Doe v. Moore, 410 F.3d 1337, 1342 (11th Cir.

2005)(citing Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).
To establish a substantive due process violation, a plaintiff must
first both carefully describe that right and establish it as
“deeply rooted in this Nation's history and tradition.” Malagon de
Fuentes v. Gonzales, 462 F.3d 498, 505 (5th Cir. 2006)(citations
omitted).

If the right is so deeply rooted as to be fundamental,
8

more exacting scrutiny is required; if it is not, the Court applies
only rational basis review.

Id.

In cases involving zoning ordinances, absent evidence of
"invidious
infringement

discrimination,
of

suspect

fundamental

classifying

interests,"

the

criteria,

or

requirement

of

substantive due process is met "if there was any conceivable
rational basis for the zoning decision."

Shelton v. City of

College Station, 780 F.2d 475, 477 (5th Cir. 1986).

The plaintiff

in such a case must show that the government action was "arbitrary
and capricious."

Id.

In fact, in some instances, instead of this

"minimum rationality" standard, the even less stringent "shocks the
conscience" standard may apply to zoning decisions.

See, e.g.,

Conroe Creosoting Co. v. Montgomery Cnty., 249 F.3d 337, 341 (5th
Cir. 2001) ("Where a state official deprives a corporation of its
property in a manner that 'shocks the conscience,' substantive due
process may be violated."); see also Arden H. Rathkopf et al.,
Rathkopf's The Law of Zoning and Planning § 3:17 (4th ed. 2013).
Here,

19-21(b)

violates

substantive due process under the Fourteenth Amendment.

The Court

disagrees.

the

plaintiff

claims

Code

§

No fundamental right has been infringed, and the

ordinance is clearly supported by a rational basis.

The ordinance

was enacted with the explicit purpose of "protecting the health,
safety, and welfare by regulating and eliminating nuisances," and
to "prevent the spread of disease; to limit and prevent the

9

harborage of insects, rodents, and other vermin; . . . [and] to
limit and prevent depreciation of property values and disturbance
of another's peaceful possession of his property."

The ordinance

is rationally related to that legitimate goal. Enabling the Parish
to abate overgrown vegetation where a property owner refuses or
regularly neglects to do so seems patently reasonable.

In fact,

the Court has some difficulty agreeing that a private property
owner has a constitutional right to leave its property in such an
unwelcome condition as this record so vividly illustrates.
That the owner has only five days from notice to rectify the
violation does not render the ordinance "arbitrary and capricious."
Shelton, 780 F.2d at 477.2
need

only

provide

one

Neither does the fact that the Parish

Notice

of

Violation

per

year.

These

provisions directly serve the defendant's legitimate interest in
ensuring efficient resolutions of zoning violations and fairly
balance the burdens on both the property owner and the Parish.
Neither does the 100% surcharge constitutionally taint the
ordinance.

Importantly, the surcharge need only be supported by

"any conceivable rational basis."

Id.

It is conceivable to this

Court and rational to common sense that the Parish would want a
surcharge to cover the many and varied administrative costs-including receiving complaints, inspecting properties, mailing
2

Notably, the plaintiff in this case repeatedly received
well in excess of five days to rectify its violations before the
Parish sent out a contractor to clean up the property.
10

notices and invoices, and recording liens–-that would be incurred
in the process of Code enforcement.

Contrary to the plaintiff's

argument, it is both logical and reasonable that the amount of that
surcharge be tied to the cost of abatement.

Plaintiff offers

nothing that would create a disputed material issue of fact under
Rule 56.
Finally, the Court notes that the plaintiff also automatically
intones the "shocks the conscience" standard, and not "minimum
rationality," should govern its claims.
341.

See Conroe, 249 F.3d at

But the ordinance plainly satisfies either standard.
C.
"Procedural due process imposes constraints on governmental

decisions which deprive individuals of 'liberty' or 'property'
interests within the meaning of the Due Process Clause of the Fifth
or Fourteenth Amendment."

Mathews v. Eldridge, 424 U.S. 319, 332

(1976). Due process requires notice and an opportunity to be heard
before an individual is finally deprived of its property.
333.

Id. at

However, "[d]ue process is flexible and calls for such

procedural protections as the particular situation demands."
at

334

(internal

quotation

marks

and

citation

Id.

omitted).

Accordingly, to determine whether there has been a procedural due
process violation, the Court considers: (1) the private interest
affected by the governmental action, (2) the risk of erroneous
deprivation

caused

by

the

procedures

11

at

issue;

and

(3)

the

government interest, including any burden additional procedural
requirements would cause.

Id. at 335.

Here, even with three extensions of time from the Court, the
plaintiff has wholly failed to brief the issue of procedural due
process.
burden

of

The defendant, on the other hand, has satisfied its
showing

no

regarding the claim.

genuine

issue

as

to

any

material

fact

The defendant has presented ample evidence

that the plaintiff received notice and an opportunity to be heard.3
In some 175 pages of exhibits, the defendant has presented copies
of photographs of overgrown vegetation on the plaintiff's property,
various notices and invoices received by the plaintiff, and several
liens recorded against the plaintiff's property.

Because the

plaintiff has failed to submit anything to support an erroneous
deprivation, and because the Court finds a substantial government
interest exists as a matter of law, the Court is persuaded that the
plaintiff received sufficient process under the mandate of Mathews
v. Eldridge.4

3

Under Code Section 19-23, once the property owner receives
a Notice of Violation, he has an opportunity to request a hearing
to refute the violation or raise any objections. However, with
respect to "repeat offenders," Section 19-21 allows abatement to be
performed without a hearing. But, the Court emphasizes, Mathews v.
Eldridge does not require a hearing in every circumstance, as long
as the administrate process at issue does not present a risk of
erroneous deprivation. 424 U.S. 319, 344-45 (1976).
4

Plaintiff submits material that it
its own contractor cut the grass.
But
counters the photographs of overgrown
triggered the Parish's rational and public
12

paid, at times, to have
nothing on this record
weeds and grass that
health responsibilities

III.
The plaintiff adds several state law claims in its complaint.
It is instructive to underscore that the plaintiff has failed to
brief any of these claims, even after receiving specific direction
from this Court that "if plaintiff contends that its federal
constitutional

claims

should

survive,

it

must

also

address

defendant's challenges to its various state law claims." The Court
finds that the plaintiff has been wholly indifferent to and has
abandoned these claims.5
IV.
The

plaintiff

also

preliminary injunction.

fails

to

support

its

request

for

a

The plaintiff requests a preliminary

injunction based on its contention that its property will be seized
and sold at a tax sale; however, the plaintiff presents no proof of
a pending tax sale.

The Court may issue a preliminary injunction

where the plaintiff demonstrates: (1) a substantial likelihood of
success on the merits; (2) a substantial threat of irreparable harm
without a preliminary injunction; (3) that the threatened injury
outweighs any damage an injunction might cause; and (4) that the
injunction will serve the public interest.

Sugar Busters, LLC v.

as mandated by the Code.
5

Even if the plaintiff had not abandoned its state law claims,
because the Court concludes that the plaintiff's federal claims
should be dismissed, it would decline to exercise supplemental
jurisdiction. 28 U.S.C. § 1367(c)(3).
13

Brennan, 177 F.3d 258, 265 (5th Cir. 1999).

Because the plaintiff

fails to make a prima facie showing of either a substantial
likelihood of success on the merits or a substantial threat of
irreparable

harm,

and

because

the

record

before

the

Court

establishes no genuine issue of material fact, the plaintiff's
request for a preliminary injunction is DENIED and the Parish's
motion for summary judgment as to all issues is GRANTED.
action is DISMISSED with prejudice.
New Orleans, Louisiana, November 21, 2013
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

14

The