Maurer v. Independence Town

Filing 98

ORDER AND REASONS - DENYING Maurer's motion to reconsider the dismissal of his Due Process claim grounded in his alleged entitlement to the protections of the Firefighter Bill of Rights. GRANTING Maurer's motion to reconsider the dismissal of his Due Process claim grounded in his alleged entitlement to the protections of the Louisiana classified civil service system as to the Fire District defendants but DENYING the motion as to Tangipahoa.. Signed by Chief Judge Sarah S. Vance on 3/2/15. (Reference: ALL CASES)(jjs)

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

CIVIL ACTION

VERSUS

NO:

TOWN OF INDEPENDENCE,
LOUISIANA, ET AL.

SECTION: R

13-5450

ORDER AND REASONS
Plaintiff David Maurer moves the Court to reconsider the
portion of its September 8, 2014 Order and Reasons1 dismissing
Maurer's Due Process claim against two groups of defendants.

For

the following reasons, the Court grants the motion.
I.

BACKGROUND
Maurer is the former chief of the Independence Volunteer

Fire Department.

After he was fired, he sued 13 defendants under

section 1983 for procedural due process violations and under
Louisiana state law for violations of Louisiana's "Whistleblower
Law" and for defamation of character.2

The procedural and

factual history of this suit is set forth in detail in the
Court's September 8 order.3

1

R. Doc. 73.

2

R. Doc. 39.

3

R. Doc. 73.

Therefore, here, the Court relates

only the procedural and factual background necessary to provide
context for Maurer's motion for reconsideration.
On September 8, 2013, the Court granted motions to dismiss
by two sets of defendants.

Defendant 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, filed the first motion.4

The

Court refers to these four defendants together as the "Fire
District defendants."

Defendant Tangipahoa Parish filed the

second motion.5
With this motion to reconsider still pending, Maurer moved
for leave to file a second amended complaint.
since granted that motion.6

The Court has

The second amended complaint adds

new details in support of Maurer's Due Process claim, beyond what
appeared in Maurer's first amended complaint, to which the
Court's September 8 order was addressed.

These new details do

not affect the Court's analysis of the arguments in Maurer's
motion for reconsideration.

Thus, in the interest of

streamlining the record, the Court addresses this order to
Maurer's newly filed second amended complaint.

4

R. Docs. 35 and 47.

5

R. Doc. 61.

6

R. Doc. 97.
2

The complaint alleges that in September 2012, the town of
Independence and the Fire District decided to make the
Independence Volunteer Fire Department (Volunteer Department) the
exclusive provider of fire protection services for Independence
and the surrounding area.7

In December 2012, Maurer became the

chief of the Volunteer Department.8
was fired.9

Less than a year later, he

Maurer alleges that Tangipahoa Parish and the Fire

District defendants, among others, deprived him of his employment
without due process of law, along with other alleged wrongs.
In its September 8 order, the Court dismissed Maurer's Due
Process claim after determining that Maurer had not alleged that
he had a property interest in his employment.

The Court rejected

Maurer's arguments that the Louisiana Firefighter Bill of Rights
or the Louisiana classified civil service system vested him with
procedural protections for his job.

II.

LEGAL STANDARD
Maurer styled his motion as a "motion for new trial" of the

Court's September 8 order dismissing his Due Process claim.
an order granting a motion to dismiss is not a "trial."
Therefore, the Court will treat the motion as a motion for
reconsideration.
7

R. Doc. 80-4 at 7.

8

Id. at 9.

9

Id. at 39.
3

But

The Federal Rules of Civil Procedure do not formally
recognize a motion for reconsideration.

Bass v. United States

Dep't of Agric., 211 F.3d 959, 962 (5th Cir. 2000).

The Fifth

Circuit has treated a motion for reconsideration as a motion to
alter or amend the judgment pursuant to Rule 59(e) of the Federal
Rules of Civil Procedure when filed within the time limit set by
the Rule.

See Shepherd v. Int'l Paper Co., 372 F.3d 326, 328 n.1

(5th Cir. 2004).

Under the current version of Rule 59(e), a

party must file a motion to alter or amend within 28 days of the
entry of the judgment from which relief is sought.
P. 59(e).

Fed. R. Civ.

Here, Maurer filed his motion on October 6, 2014,

exactly 28 days after the Court's order.

Thus, the Court

evaluates the motion under Rule 59(e).
Motions filed under Rule 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

4

time of the original motion.

Simon v. United States, 891 F.2d

1154, 1159 (5th Cir. 1990).

III. DISCUSSION
Maurer asks the Court to reconsider its dismissal of
Maurer's Due Process claim against Tangipahoa Parish and the Fire
District defendants.

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).
The Court's September 8 order rejected Maurer's argument
that he had a property interest in his employment by virtue of
his status as a "fire employee" under the Louisiana Firefighter
Bill of Rights or his status as a classified civil service
employee.

Because Maurer did not have a property interest in his

employment, the Due Process Clause did not entitle him to any
procedural protections before his termination.
Maurer now cites new legal authority for his argument that
the question whether he is a "fire employee" under the Louisiana
Firefighter Bill of Rights, and the question whether he is
entitled to the protections of the classified civil service
system, are factual questions and thus may not be decided at the

5

motion to dismiss stage.
A.

The Court addresses each contention in turn.

Firefighter Bill of Rights

The Court begins with Maurer's contention that he had a
property interest in his employment by reason of a state statute,
the Louisiana Firefighter Bill of Rights.

The Louisiana

Firefighter Bill of Rights mandates that certain "minimum
standards" apply whenever a "fire employee" is under
investigation, La. Rev. Stat. § 33:2181(B), and provides that
"[a]ny discipline, demotion, dismissal or adverse action of any
sort taken against a fire employee without complete compliance
with the provisions of [the statute] is an absolute
nullity . . . ."

Id. § 33:2181(C).

To meet the statute's

definition of a "fire employee," two factors must be met.

A

person must be (1) "employed in the fire department of [a]
municipality, parish, or fire protection district," and (2) the
employing municipality, parish or fire protection district must
"maintain[] a full-time regularly paid fire department."

Id. §

33:2181(A)(1).
The Court's September 8 Order held that because Maurer did
not satisfy the first prong of the statutory definition of "fire
employee," the Firefighter Bill of Rights did not apply to him.
The Court explained that because Maurer's complaint alleged that
he was officially employed by the Independence Volunteer Fire
Department, a private corporation, and not by the town of

6

Independence, Tangipahoa Parish, or the Fire District, Maurer had
not alleged that he was "employed in the fire department of [a]
municipality, parish, or fire protection district."
Since there are no Louisiana Supreme Court decisions
interpreting the definition of "fire employee" in the Firefighter
Bill of Rights, the Court supported its holding with an "Erie
guess" about how the Louisiana Supreme Court would read the
statute.
1999).

See Krieser v. Hobbs, 166 F.3d 736, 738 (5th Cir.

The Court "employ[ed] the appropriate Louisiana

methodology" to arrive at the result it predicted the Louisiana
Supreme Court would reach.

Shaw Constructors v. ICF Kaiser

Eng'rs, Inc., 395 F.3d 533, 546 (5th Cir. 2004) (quoting Lake
Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 197 (5th
Cir. 2003)).
In Louisiana, the sources of law are legislation and custom.
Id.

These authoritative or primary sources of law are to be

"contrasted with persuasive or secondary sources of law, such as
[Louisiana and other civil law] jurisprudence, doctrine,
conventional usages, and equity, that may guide the court in
reaching a decision in the absence of legislation and custom."
Id. (quoting La. Civ. Code art. 1).

In Louisiana, "courts must

begin every legal analysis by examining primary sources of law:
the State's Constitution, codes, and statutes."

Id. (quoting

Prytania Park Hotel, Ltd. v. General Star Indem. Co., 179 F.3d

7

169, 174 (5th Cir. 1999)).

In addition, in Louisiana, "[l]aws on

the same subject matter must be interpreted in reference to each
other."

La. Civ. Code art. 13.

Finally, and important here:

"When a law is clear and unambiguous and its application does not
lead to absurd consequences, the law shall be applied as written
and no further interpretation may be made in search of the intent
of the legislature."

La. Civ. Code art. 9.

Thus, the Court began its analysis with the language of the
statute.

The Court explained that when a statute specifically

defines the employer-employee relationship, the statute's
definition governs.

See Dejoie v. Medley, 9 So. 3d 826, 829-30

(La. 2009); La. Civ. Code art. 9.

Since the Louisiana

Firefighter Bill of Rights provides a clear definition of "fire
employee," the Court rejected alternative definitions of "fire
employee" that conflicted with the plain language of the statute.
In particular, the Court rejected Maurer's argument that
although the Independence Volunteer Fire Department was his
nominal employer, Tangipahoa Parish, acting "through its special
district, [the Fire District]" could qualify as his de facto
employer, and thus satisfy the statute.

As the Court explained:

"Allowing an alternative definition, such as plaintiff's proposed
de facto employer formula, to compete with the statutory
definition would defeat the purpose of privileging the statutory
text in the first place."

8

Maurer now argues that a brief per curiam opinion by the
Louisiana Supreme Court, Marshall v. W. Baton Rouge Parish Fire
Prot. Dist. No. 1, 998 So. 2d 85 (La. 2009), requires a different
result.

In Marshall, a former employee of a volunteer fire

department argued that, as a classified civil service employee,
he was entitled to a hearing before being terminated.
Rev. Stat. § 33:2561.

See La.

Under the statute, if the local Fire

Protection District "operated" his fire department, then Marshall
would be entitled to a hearing; if not, then not.

According to

the per curiam, the question whether the Fire Protection District
operated the fire department turned on two "factual issues":
"what actions constitute the operation of a regularly paid fire
department" and "what entity actually employed plaintiff."

Id.

Thus, the Louisiana Supreme Court remanded the case for the trial
court "to take evidence, hear testimony, and make factual
findings regarding what entity employed Mr. Marshall and what
entity operates the fire protection services in the City of Port
Allen."

Id.

Maurer argues that, after Marshall, the question "what
entity actually employ[s]" a person always presents a factual
question.

But Marshall concerned a statutory provision that does

not define the employer-employee relationship.
Bill of Rights does.

The Firefighter

Since the statute provides a definition,

that definition governs.

See Dejoie, 9 So. 3d at 829-30; La.

9

Civ. Code art. 9.

Maurer does not satisfy this definition,

because he was not "employed in the fire department of [a]
municipality, parish, or fire protection district."
Stat. § 33:2181(A)(1).
B.

La. Rev.

Thus the statute does not apply to him.

Civil Service Protection
1.

Property Interest

The Court next addresses Maurer's contention that he has a
property interest in his employment by way of the protections of
the Louisiana classified 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.
§ 16.

La. Const. art. 10

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

positions deemed classified within fire protection 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."

La. Rev. Stat. § 33:2541.

Therefore, Maurer's entitlement to classified civil service
protections turns on two questions: (1) whether Tangipahoa Parish
or the Fire District "operated" a full-time, regularly paid fire
department, and (2) whether Tangipahoa and/or the Fire District
retained "the right of employee selection, appointment,

10

supervision, and discharge" over Maurer.

The Court's September 8

Order decided, as a matter of law, that neither Tangipahoa Parish
nor the Fire District "operated" a regularly paid fire
department.

Thus, the Court dismissed Maurer's Due Process claim

grounded in his alleged entitlement to the protections of the
Louisiana classified civil service.

The Court now reconsiders

and vacates that decision.
Maurer's motion to reconsider cites Marshall, discussed
above, for the proposition that the question whether a parish or
district "operated" a regularly paid fire department is a factual
question.

Maurer did not cite Marshall in his original

opposition to defendants' motions to dismiss.

As stated above, a

motion for reconsideration is generally not an appropriate
vehicle for new arguments that could have been raised earlier.
Nevertheless, the law in this circuit permits the Court to
entertain a motion for reconsideration containing new arguments
if it determines that those arguments have merit.

Cf.

Fackelman v. Bell, 564 F.2d 734, 736 (5th Cir. 1977) (Fifth
Circuit law permits trial judges to "reopen a judgment on the
basis of an error of law" when considering a Rule 60(b) motion
(citing Oliver v. Home Indem. Co., 470 F.2d 329, 330-31 (5th Cir.
1972))).

Here, Maurer's argument has merit because this Court

cannot ignore a decision on point by the Louisiana Supreme Court
on a question of state law.

11

Marshall indicates that the question whether a parish or
district "operated" a regularly paid fire department is a factual
question.

The Court concludes that, in light of Marshall, the

question whether Tangipahoa Parish or the Fire District
"operates" a full-time, regularly paid fire department is
likewise a factual question that is not appropriate for
resolution on a motion to dismiss.

Maurer's complaint, together

with the documents incorporated by reference into the complaint,
allege enough to plausibly raise this issue.

In particular, his

complaint now incorporates by reference the 2013 blanket contract
between the Fire District and the volunteer fire departments in
its jurisdiction.10

While this document is not conclusive on the

issue, it provides enough factual content to make plausible
Maurer's allegation that the Fire District "operated" a regularly
paid fire department.
The Court therefore turns to the second question, which it
did not reach in its previous order: whether Tangipahoa and/or
the Fire District retained "the right of employee selection,
appointment, supervision, and discharge" over Maurer.

Two

documents attached to or incorporated by reference into Maurer's
second amended complaint plausibly support the inference that the
Fire District did.

10

R. Doc. 80-4 at 6 (incorporating 2013 contract by
reference); R. Doc. 78 (2013 contract).
12

First, Maurer attaches his "Approval to Hire" form.11

The

form is labeled "Tangipahoa Parish Rural Fire #2 Position
Requisition/Approval to Hire Form."12

Maurer asserts that this

form supports his allegation that the Fire District had a "longstanding practice" of requiring all volunteer fire departments,
including the Volunteer Department, to "submit all employment
decisions such as new hires, promotions, appointments, and
changes in rates of pay" to the Fire District for approval.13
Maurer also alleges that on December 5, 2012, the Fire District
"approved the appointment . . . of [Maurer] as Chief."14
Likewise, the complaint alleges that after the Volunteer
Department voted to hire all of the former Independence Fire
Department employees as Volunteer Department employees, the Fire
district "approved" the plan.15
Maurer further alleges that the Fire District has the
authority to "investigate the alleged misconduct of fire
employees," to "appoint an individual to conduct an
investigation," to "schedule meetings with . . . elected
officials to receive complaints against fire employees," and to

11

R. Doc. 80-6, Ex. 6.

12

Id.

13

R. Doc. 80-4 at 53.

14

Id. at 9.

15

Id. at 10.
13

"orchestrate the removal of any fire employee."16

Maurer's

factual allegations about the investigation into his own
performance also plausibly support the inference that the Fire
District retained the authority to supervise, investigate, and
discharge employees of the Volunteer Department.
Second, Maurer incorporates by reference the 2013 blanket
contract between the Fire District and the volunteer fire
departments in its jurisdiction.17

The contract provides that

all departments "contracted with the District shall be required
to strictly comply with the policies and procedures adopted by
the Board of Commissioners of the District."18

The policies and

procedures in turn contain an organizational chart.19
chart, the Fire District appears at the top.

On the

Beneath the Fire

District appears the "Fire Administrator" and beneath the "Fire
Administrator" appears each of the volunteer fire departments,
including the Independence Volunteer Department.

This document

provides additional support for Maurer's allegation that the Fire
District retained supervisory control over him and his
department.

Taking these allegations and documents together, the

Court concludes that Maurer has plausibly alleged that his

16

Id. at 58.

17

See id. at 6 (incorporating 2013 contract by
reference); R. Doc. 78 (2013 contract).
18

R. Doc. 78 at 4.

19

Id. at 22.
14

position as fire chief would qualify for the classified civil
service.

Thus, at this time, Maurer may support the property

interest element of his Due Process claim with an alleged
entitlement to civil service protection.
2.

Process Due

The Court turns, therefore, to the question what process was
due.

When "a governmental employer provides a full post-

termination hearing, pretermination due process is limited."
Browning v. City of Odessa, Tex., 990 F.2d 842, 844 (5th Cir.
1993) (citing Cleveland Board of Education v. Loudermill, 470
U.S. 532, 546 (1985)).

In such circumstances, due process does

not require a formal hearing, but it does require that the
employee be given notice of the action that may be taken against
him, and a meaningful opportunity to tell his side of the issue.
See id. (citing Loudermill, 470 U.S. at 546 & n.8).

Maurer's

complaint makes no mention of whether a full post-termination
hearing was made available to him.

But in any event, he does

allege that he was discharged without having received notice or a
meaningful opportunity to tell his side of the issue.
Specifically, he alleges that in late July 2013, the Fire
District board and the Volunteer Department board held various
meetings without him present, following which he was placed on
administrative leave and then fired.

He further alleges that he

was not informed of the alleged basis for his termination until
September 4, 2013, over a month after he was fired.
15

The Court finds that Maurer has alleged that each of the
Fire District defendants played a role this denial of Due
Process.

As discussed above, Maurer plausibly alleges that the

Fire District retained "the right of employee selection,
appointment, supervision, and discharge" over him.

Thus,

Maurer's discharge without due process may, at this time, be laid
at least partly at the feet of the Fire District.

Likewise,

Maurer alleges that the three individual Fire District defendants
played a role in his discharge without Due Process.

First, he

alleges that Crocker, the Fire District administrator, conducted
the investigation and prepared the report supporting his
termination on behalf of the Fire District.

He also alleges that

Crocker helped coordinate some of the meetings leading to his
termination.

Second, he alleges that Bruno, one of the Fire

District's Board members, threatened the Volunteer Department
board and told them that the Fire District would "freeze
[Volunteer Department] assets" and "dissolve" the Volunteer
Department if Maurer remained fire chief.20

Finally, Maurer

alleges that he complained to Muscarello, another Fire District
Board member,

that "he had been placed on leave and that he had

not been given the right to defend himself," and that Muscarello
brushed him off and told him that it "did not look good" for

20

Id. at 38.
16

him.21

Because Maurer has alleged that each of the Fire District

defendants contributed in some way to his termination without Due
Process, he may proceed with his Due Process claim against the
Fire District defendants.
Maurer has not alleged enough factual content, however, to
proceed with his claim against Tangipahoa.

Neither the "Approval

to Hire" form nor the 2013 blanket contract mention Tangipahoa
Parish Government.

Maurer does not allege that Tangipahoa

approved his employment or that Tangipahoa had any role in
approving hires for the Volunteer Department.

Maurer also does

not allege that Tangipahoa participated in the Fire District's
investigation into his performance.

Instead, Maurer repeatedly

makes the conclusory allegation that the actions of the Fire
District simply were the actions of Tangipahoa, "acting through
its special district."22

According to Maurer, the Fire District

and the Parish should be treated as one because the Fire District
is "subject to the general authority of the Tangipahoa Parish
Council pursuant to the Tangipahoa Parish Code of Ordinances" and
because the Parish Council has allegedly always appointed its own
current members to the Fire District's Board of Commissioners.23

21

Id. at 39.

22

See, e.g., id. at 53.

23

Id. at 4.
17

That the Council has "general power" over the Fire District,
see Tangipahoa Parish, La., Code of Ordinances pt. I, art. VII,
§ 7-08(A) (2013), does not mean the actions of the Fire District
were "for all practical purposes, the actions of the Tangipahoa
Parish Council,"24 as Maurer asks the Court to hold.

The same

section of the Tangipahoa Parish Code provides that the parish
may "consolidate and merge" with any special district "situated
and having jurisdiction entirely within the boundaries of the
parish," and that upon this sort of merger, the parish will
"succeed to and be vested with all the rights, revenues,
resources, jurisdiction, authority, and powers" of the special
district.

Id. § 7-08(B).

This consolidation provision supports

the conclusion that the Fire District and Tangipahoa are separate
entities: if special districts were one with the Parish, then
"consolidation and merger" would be meaningless.

The

consolidation provision also indicates that Tangipahoa does not
have the same powers as the Fire District, as there would there
be no need for the "rights, . . . authority, and powers" of a
special district to vest in the Parish upon a merger if the
Parish retained those powers inherently.

Nor does an overlap of

personnel between the Parish Council and the Fire District Board
somehow collapse the two entities into one.
treated separately from the Fire District.

24

Id.
18

Tangipahoa must be
And without the

factual allegations about the Fire District's conduct, Maurer's
claim against Tangipahoa lacks sufficient factual support to
withstand a motion to dismiss.

Therefore, the Court dismisses

Maurer's Due Process claim against Tangipahoa.
III. CONCLUSION
The Court DENIES Maurer's motion to reconsider the dismissal
of his Due Process claim grounded in his alleged entitlement to
the protections of the Firefighter Bill of Rights.
The Court GRANTS Maurer's motion to reconsider the dismissal
of his Due Process claim grounded in his alleged entitlement to
the protections of the Louisiana classified civil service system
as to the Fire District defendants but DENIES the motion as to
Tangipahoa.

New Orleans, Louisiana, this 2nd day of March, 2015.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

19