Kerr v. New Orleans Police Department

Filing 10

ORDER & REASONS granting 6 Motion to Dismiss for Failure to State a Claim. Party New Orleans Police Department dismissed. Signed by Judge Martin L.C. Feldman on 11/13/2013. (caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JEREMY DON KERR

CIVIL ACTION

VERSUS

NO. 13-525

NEW ORLEANS POLICE DEPARTMENT,
ET AL.

SECTION: “F”
ORDER

Before the Court is the New Orleans Police Department's motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6). For the
reasons that follow, the motion is GRANTED.
Background
This lawsuit arises out of an allegedly illegal search and
seizure conducted during a routine traffic stop.
The

plaintiff,

who

is

proceeding

in

this

case

pro

se,

generally alleges that on March 20, 2012, during a routine traffic
stop, New Orleans Police Officers illegally searched his vehicle
and seized his "legal business inventory of items valued at not
less than $3,000." The plaintiff alleges he runs a legal business,
validly registered with the Louisiana Secretary of State, called
K&B Organics.

The plaintiff further alleges that one officer

transferred the seized items to the other officers and then
ultimately to a DEA Special Agent, who retained the items for
narcotics testing.

The plaintiff also alleges that the officers

never issued a receipt for the seized items.

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On March 20, 2013, the plaintiff filed a complaint raising
those allegations and naming the New Orleans Police Department as
the only defendant. On October 22, 2013, the NOPD moved to dismiss
under Rule 12(b)(6).
opposition

to

the

On November 5, 2013, the plaintiff filed an
motion

to

dismiss,

as

well

as

an

amended

complaint naming NOPD Officer Ramiro Hernandez and Superintendent
Ronal Serpas as defendants.
I.
In considering a Rule 12(b)(6) motion to dismiss, 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)).

“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.’”

In re Katrina Canal Breaches Litig., 495 F.3d 191, 205

(5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
569 (2007)).

“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).
Rule 17(b) of the Federal Rules of Civil Procedure provides
that “capacity to sue or be sued is determined... by the law of the

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state where the court is located.”
defines

a

juridical

person

as

“an

The Louisiana Civil Code
entity

to

which

the

law

attributes personality, such as a corporation or partnership.” La.
Civ. Code art. 24.

This Court has repeatedly held that the New

Orleans Police Department is not a juridical entity capable of
being sued.

See, e.g., Winn v. New Orleans City, 919 F. Supp. 743,

750 (E.D. La. 2013).
Because the New Orleans Police Department does not have the
capacity to be sued, the plaintiff's claims against that defendant
must be dismissed for failure to state a claim upon which relief
can be granted.

Accordingly, the New Orleans Police Department's

motion is GRANTED.
are dismissed.

The plaintiff's claims against that defendant

The plaintiff's claims against Officer Ramiro

Hernandez and Superintendent Ronal Serpas remain.
New Orleans, Louisiana, November 13, 2013

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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