Maurer v. Independence Town

Filing 113

ORDER AND REASONS - The Court GRANTS Independence Volunteer Fire Department's Motion 100 to Alter or Amend the Courts March 2015 order. The Court dismisses Maurer's section 1983 procedural due process claim against the Volunteer Departmen t. Because this order resolves all of Maurer's claims against the Volunteer Department, the Court dismisses this defendant from the case. The Court DENIES AS MOOT the Volunteer Department's Rule 12(b)(6) motion 101 to dismiss.. Signed by Chief Judge Sarah S. Vance on 7/7/15.(Reference: 13-5910)(jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAVID S. MAURER

CIVIL ACTION

VERSUS

NO: 13-5450

TOWN OF INDEPENDENCE,
LOUISIANA, ET AL.

SECTION: R

ORDER AND REASONS
Defendant Independence Volunteer Fire Department moves under
Federal Rule of Civil Procedure 59(e) to alter or amend a portion
of the Court’s March 2, 2015 Order and Reasons granting in part and
denying in part multiple defendants’ motions to dismiss.1

For the

following reasons, the Court grants the motion.

I.

PROCEDURAL BACKGROUND
This section 1983 and state-law defamation and “Whistleblower

Law” suit concerns plaintiff David Maurer’s termination from his
position as the chief of the Independence Volunteer Fire Department
(Volunteer Department).
The Court's order dismissing Maurer's original complaint held
that as an employee of a volunteer fire department, Maurer was not
entitled to the procedural protections of the Louisiana Firefighter

1

R. Doc. 100-1. The Volunteer Department also moves to
dismiss plaintiff’s claims against it as alleged in his Second
Amended Complaint. Because the Court grants the motion to amend
and dismisses the Volunteer Department, the motion to dismiss is
now moot.

Bill

of

Rights,

La.

Rev.

Stat.

§

33:2181,

or

the

Louisiana

classified civil service system, so he had no property interest in
his employment.2
process claim.

Thus, the Court dismissed his procedural due
The Court also dismissed Maurer's state law

"Whistleblower Law" and defamation claims because he had failed to
allege elements essential to each cause of action.

The Court

granted Maurer leave to amend his complaint, and Maurer filed an
amended complaint.3
The

amended

complaint

sought

to

rehabilitate

Maurer's

procedural due process claim by providing two new justifications
for his alleged property interest in his employment. First, Maurer
contended that although the Volunteer Department was his nominal
employer, Tangipahoa Parish, acting through its special district,
the Fire District, was Maurer's de facto employer.4

He alleges

that Tangipahoa, acting through the Fire District, "has the right
to control all of the volunteer fire departments . . . because of
its authority concerning personnel and finances."5

Second, he

argues that he is entitled to the protections of the Louisiana
classified civil service system, again relying on his de facto
employer argument to support his position.

2

R. Doc. 34.

3

R. Doc. 39.

4

Id. at 49.

5

Id. at 52.
2

The amended complaint

also contains more detailed factual allegations regarding the
allegedly defamatory statements made by various defendants.
Before the Court ruled on defendants’ second round motions to
dismiss,

Maurer

moved

for

leave

to

file

a

second

amended

complaint.6 The second amended complaint primarily added detail to
support Maurer's procedural due process claims.

It also deleted

Maurer's stigma-plus-infringement claim and deleted his defamation
claim against all defendants but Mayor of Independence, Michael
Ragusa.

The Court granted Maurer leave to amend, and relying on

the second amended complaint, ruled on defendants’ second motions
to dismiss.7

The Court’s March 2, 2015 order again held that

Maurer was not entitled to the procedural protections of the
Louisiana Firefighter Bill of Rights, La. Rev. Stat. § 33:2181.8
The Court also held, however, that Maurer’s factual allegations
plausibly supported the inference that the Tangipahoa Fire District
retained the right of employee selection, appointment, supervision,
and discharge over Maurer.

Therefore, Maurer plausibly alleged

that his position as fire chief, a potential de facto employee of
the

Fire

District,

qualified

for

classified

protection under the Louisiana Constitution.9

6

R. Doc. 80-1.

7

R. Doc. 97.

8

Id. at 24-31.

9

Id. at 31-34.
3

civil

service

On this basis, the

Court allowed Maurer’s due process claim to proceed against both
the Fire District and the Volunteer Department.
At issue in the Volunteer Department’s motion to amend the
Court’s March 2, 2015 order is whether Maurer can maintain his
procedural due process claim under 42 U.S.C. § 1983, based on his
de facto employment with the Fire District, a municipal entity,
against the Volunteer Department, a private, non-profit volunteer
organization.
II.

FACTUAL BACKGROUND
A.

Parties

Plaintiff David Maurer is the former chief of the Volunteer
Department.

After he was fired, Maurer sued four groups of

defendants–-thirteen defendants in all. First, he sued the town of
Independence and Independence's mayor, Ragusa.

Independence is a

political subdivision of Louisiana.
Second, he sued the Volunteer Department and five members of
its board of directors: Jeremy Baham, Eric Anthony, Jonathan Tallo,
Christopher McKinney, and Anthony Parazzo (“IVFD Defendants”). The
Volunteer Department is a domestic corporation that provides fire
protection services to Independence and the surrounding area.
Third, Maurer sued Tangipahoa Parish Rural Fire Protection
District Number 2 (Fire District), together with two members of the
Fire District's Board of Commissioners, Nicholas Muscarello and
Carlo Bruno, and the Fire District's administrator, Dennis Crocker

4

(“Fire District Defendants”).

The Fire District is a political

subdivision of Louisiana.
Finally, Maurer sued Tangipahoa Parish Government, which is
also a political subdivision of Louisiana.

Maurer sued all of the

individual defendants in their individual and official capacities.
B.

Alleged Facts

The second amended complaint alleges that in September 2012,
the town of Independence and the Fire District decided to make the
Volunteer Department the exclusive provider of fire protection
services for Independence and the surrounding area.10

In December

2012, Maurer became the chief of the Volunteer Department.11
than a year later, he was fired.12

Less

Maurer alleges that the Fire

District and the Volunteer Department, among others, deprived him
of his employment without due process of law, along with other
alleged wrongs.
To support his de facto employee argument, Maurer alleges that
the Fire District provided the funding for fire protection services
to the Volunteer Department and regulated the manner in which fire
protection services are rendered, including the designated service
area, among other matters.13

10

R. Doc. 99 at 7.

11

Id. at 8.

12

Id. at 38-39.

13

Maurer also alleges that Crocker, as

Id. at 5-7.
5

the Fire District Administrator, exercised direct supervisory
control over Maurer,14 and that the Fire District was involved in
Maurer’s termination and the preceding investigation.15 Maurer also
attaches or incorporates by reference a number of documents in
support of his allegations that he was a de facto employee of the
Fire District.

III. LEGAL STANDARD
Motions filed under Federal Rule of Civil Procedure 59(e)
question the correctness of a judgment.

In re Transtexas Gas

Corp., 303 F.3d 571, 581 (5th Cir. 2002).

Rule 59(e) is properly

invoked "to correct manifest errors of law or fact or to present
newly discovered evidence."

Id. (citing Waltman v. Int'l Paper

Co., 875 F.2d 468, 473 (5th Cir. 1989)).

A district court has

considerable discretion to grant or deny a Rule 59(e) motion for
reconsideration.

Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350,

353 (5th Cir. 1993). A motion for reconsideration is generally not
an appropriate vehicle for advancing new arguments that were
available at the time of the original motion.
States, 891 F.2d 1154, 1159 (5th Cir. 1990).

14

Id. at 11.

15

Id. at 18, 26-29, 31, 35, 37-41.
6

Simon v. United

IV.

DISCUSSION
The Volunteer Department argues that the Court should amend or

reconsider its earlier order because (1) if the Fire District is
proven to be Maurer’s de facto employer and thus owed him civil
service obligations, the Volunteer Department cannot be liable for
the Fire District’s failure to afford Maurer due process; and (2)
if the Volunteer Department is determined to owe Maurer due
process, he still does not fulfill the threshold requirements set
forth in Monell v. Dep’t of Social Servs. of N.Y., 436 U.S. 658
(1978).

Because the Court concludes that if Maurer is not a de

facto Fire District employee, he has no protected property interest
in his employment with the Volunteer Department necessitating
procedural due process, the Court does not address the second
issue.
Maurer sued all original defendants under 42 U.S.C. § 1983 for
violating his right to procedural due process before being fired.
The Constitution prevents a state actor from depriving a person of
life, liberty, or property without due process of law. U.S. Const.
amend. XIV.
When confronted with a procedural due process claim, a court
must determine, first, whether the plaintiff has a property or
liberty interest that cannot be taken away without procedural
protections; and second, if so, how much process is due.

See

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985).

7

Maurer takes the position that he is the Fire District’s de facto
employee.16

As such, Maurer contends that he had a property

interest in his de facto employment with the Fire District by
virtue of his status as a classified civil service employee.17
“Civil-service

employees

have

a

property

interest

in

maintaining their positions, and, accordingly, cannot be terminated
without due process.”

Casey v. Livingston Parish Commnc’n Dist.,

No. 07-30990, 2009 WL 577756, at *3 (5th Cir. Mar. 6, 2009) (citing
AFSCME, Council #17 v. State ex rel. Dep’t of Health & Hosps., 789
So. 2d 1263, 1267-68 (La. 2001)); see also Vanderwall v. Peck, 129
F. App’x 89, 91 (5th Cir. 2005) (“In Louisiana, a person acquires
a protectable property interest in a government job . . . if the
employee is classified under the state civil service system[.]”).
The Louisiana Constitution provides that all municipalities
and fire protection districts operating a "regularly paid fire
department" must establish a classified civil service system.

La.

Const. art. 10 § 16.

A state statute, La. Rev. Stat. § 33:2541,

lists

deemed

the

positions

classified

within

fire

protection

16

R. Doc. 99 at 53 (“TPG, acting through its special
district, TPD2, is plaintiff’s de facto employer.”).
17

In his Second Amended Complaint, Maurer also contended
he had a property interest in his employment by virtue of his
status as a “fire employee” under the Louisiana Firefighter Bill
of Rights. Finding that Maurer was not a “fire employee” under
the applicable statute, the Court previously dismissed Maurer’s
section 1983 due process claim grounded in the Firefighter Bill
of Rights. R. Doc. 97 at 45.
8

districts.

It includes all fire department positions for which

"the right of employee selection, appointment, supervision, and
discharge is vested in the government of the municipality, parish
or fire protection district . . . under which the fire . . .
service functions."
Relying

on

La. Rev. Stat. § 33:2541.

his

de

facto

employee

argument,

Maurer's

entitlement to classified civil service protections turns on two
questions: (1) whether the Fire District "operated" a full-time,
regularly paid fire department, and (2) whether the Fire District
retained

"the

right

of

employee

selection,

appointment,

supervision, and discharge" over Maurer.
As the Court explained in its March 2, 2015 orders addressing
Maurer’s motion to reconsider and defendants’ motions to dismiss,
the question whether a district “operated” a regularly paid fire
department is a factual one, not appropriate for resolution on a
motion to dismiss.18

See Marshall v. W. Baton Rouge Parish Fire

Prot. Dis. No. 1, 988 So. 2d 85, 85 (La. 2009).

By incorporating

into his Second Amended Complaint the 2013 blanket contract between
the Fire District and the volunteer fire departments in its
jurisdiction,

Maurer

pleads

enough

factual

content

to

make

plausible his allegation that the Fire District “operated” a

18

R. Docs. 97 at 34-36, 98 at 11-12.
9

regularly

paid

fire

department.19

A

conclusive

determination

requires the development of a factual record.
Likewise, for the reasons stated in two of the Court’s
previous orders, the documents attached to or incorporated by
reference into Maurer’s Second Amended Complaint plausibly support
the inference that the Fire District also retained “the right of
employee selection, appointment, supervision, and discharge” over
Maurer.20

Therefore, Maurer may support his procedural due process

claim against the Fire District with an alleged entitlement to
civil service protection; his section 1983 claim against the Fire
District can go forward.
To the extent the Court later determines that Maurer is not a
de

facto

Fire

District

employee

and

is

instead

a

Volunteer

Department employee, his section 1983 procedural due process claim
against

the

Volunteer

Department

must

fail.

The

Volunteer

Department did not owe Maurer any procedural due process because
Maurer did not have a protected property interest in his employment
with the Volunteer Department.
Maurer attempts to rely on his status as a classified civil
service employee to support his due process claim against the
Volunteer Department as well.
earlier

order,

volunteer

fire

But as the Court addressed in an
departments

19

R. Doc. 98 at 12.

20

R. Docs. 97 at 32-34, 98 at 12-14.
10

that

contract

with

municipalities to provide fire protection services do not have a
civil service requirement.21

See Heintz v. City of Gretna, 683 So.

2d 296, 928 (La. App. 5 Cir. 1996).

Volunteer fire departments

“are ‘operated’ by their membership, and not by the municipality,”
and so need not establish a civil service system.

Id.

Because the

Volunteer Department is not subject to civil service obligations,
Maurer has no protected property interest in his employment with
the Volunteer Department.

See, e.g., Vanderwall, 129 F. App’x at

91 (relying on the state civil service system to find an employee
has a protected property interest in a government job).

Without a

constitutionally protected property interest, Maurer “cannot be
deprived of due process and thus cannot maintain a § 1983 action”
against the Volunteer Department.

See Klingler v. Univ. of S.

Miss., USM, No. 14-60007, 2015 WL 2169323, at *3 (5th Cir. May 11,
2015).
Consequently, relying on his status as a classified civil
service employee, Maurer’s only plausible due process claim is
against the Fire District as his de facto employer.

Maurer cannot

rely on the civil service protections potentially owed to him by
the Fire District to confer alternative liability on the Volunteer
District.

See Heintz, 683 So.2d at 928.

Accordingly, Maurer’s

claim against the Volunteer Department must be dismissed.

21

R. Doc. 34 at 21.
11

V.

CONCLUSION
The Court GRANTS Independence Volunteer Fire Department’s

Motion to Alter or Amend the Court’s March 2015 order.22
dismisses

Maurer’s

section

1983

against the Volunteer Department.

procedural

due

The Court

process

claim

Because this order resolves all

of Maurer's claims against the Volunteer Department, the Court
dismisses this defendant from the case.23

The Court DENIES AS MOOT

the Volunteer Department’s Rule 12(b)(6) motion to dismiss.24

New Orleans, Louisiana, this 7th day of July, 2015.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

22

R. Doc. 100.

23

The Court previously dismissed the following defendants
from this case: Independence, Jeremy Baham, Eric Anthony,
Jonathan Tallo, Christopher McKinney, Anthony Parrozzo, and the
Tangipahoa Parish Government. See R. Docs. 97-98. The remaining
defendants are Mayor Michael Ragusa, the Fire District, Nicholas
Muscarello, Carlo Bruno, and Dennis Crocker. See id.
24

R. Doc. 101.
12