Greater New Orleans Fair Housing Action Center, Inc. v. Dopp et al

Filing 20

ORDER AND REASONS re 6 Motion to Dismiss Counterclaim for Failure to State a Claim: ORDERED that the motion is GRANTED IN PART. Defendants' counterclaim is DIMISSED WITHOUT PREJUDICE to defendants' right to file an amended counterclaim no later than 4/25/2014. FURTHER ORDERED that the motion is DENIED to the extent that it seeks an award of GNOFHAC's costs and attorneys' fees. Signed by Judge Lance M Africk on 4/22/2014. (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

GREATER NEW ORLEANS FAIR
HOUSING ACTION CENTER, INC.

CIVIL ACTION

VERSUS

No. 13-6769

WILLIAM DOPP ET AL.

SECTION I

ORDER AND REASONS
Before the Court is a motion1 filed by plaintiff to dismiss defendants’ counterclaim
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants filed an
opposition,2 plaintiff filed a reply,3 and defendants filed a sur-reply.4 For the following reasons,
the motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND
The Greater New Orleans Fair Housing Action Center (“GNOFHAC”) is a “non-profit
fair housing advocacy organization [whose] mission is to eradicate housing discrimination and
segregation throughout the greater New Orleans area [by] engag[ing] in education, investigation,
and enforcement activities with respect to fair housing laws.”5 GNOFHAC conducted an
investigation of a rental property offered by defendants and concluded, based on its “testing,”
that unlawful discrimination was occurring.6 GNOFHAC alleges, and defendants admit, that
GNOFHAC filed a complaint with the U.S. Department of Housing and Urban Development
(“HUD”), which referred the matter to the Louisiana Department of Justice (“LADOJ”), and that
1

R. Doc. No. 6.
R. Doc. No. 8.
3
R. Doc. No. 14.
4
R. Doc. No. 19.
5
R. Doc. No. 1, ¶ 5.
6
R. Doc. No. 1, ¶¶ 7-10, 26.
2

“[o]n January 25, 2012, the LADOJ issued a report determining that there was reasonable cause
to find that Defendants had engaged in discriminatory housing practices based on race.”7
GNOFHAC subsequently filed the complaint in the above-captioned matter, alleging violations
of the Fair Housing Act, 42 U.S.C. § 3604(a)-(b), for discriminatory refusal to rent based on race
and for discrimination in the terms and conditions of a rental based on race.8
Defendants responded by filing an answer and counterclaim.9 Defendants generally deny
most of GNOFHAC’s allegations, and they assert that “[w]hen GNOFHAC first accused
defendants of discrimination, . . . [d]efendants provided detailed, logical, and reasonable
explanations for all of the factual circumstances which [GNOFHAC] claimed were evidence of
discrimination, but [GNOFHAC] refused to give any reasonable consideration to the
information.”10 Defendants allege, “Until the filing of this suit, GNOFHAC refused to provide
defendants with significant details of their investigation which would allow the defendants to
respond to the details of the allegations.”11
Defendants assert that “GNOFHAC originally demanded at mediation a sum which
defendant[s] [were] clearly unable to pay and[,] despite actual knowledge of the emotional toll
this took on both of the defendants, persisted in their unreasonable demands.”12 “GNOFHAC
was advised repeatedly of Mr. Dopp’s emotional instability, of the fact that he had threatened
suicide over these unfounded allegations, that Mr. Dopp was unemployed, and that Mrs. Dopp

7

R. Doc. No. 1, ¶¶ 23-24; R. Doc. No. 4, at 4.
R. Doc. No. 1, ¶¶ 29-31.
9
R. Doc. No. 4.
10
R. Doc. No. 4, at 5.
11
R. Doc. No. 4, at 6.
12
R. Doc. No. 4, at 6.
8

2

was raising three children on a low hourly wage part-time job. Further, GNOFHAC was advised
of the strain that these unfounded allegations were having upon defendant[s’] marriage.”13
According to defendants’ counterclaim, GNOFHAC hired several lawyers who continued
to make demands and gather information from defendants regarding their ability to pay any prelitigation settlement.14 Defendants allege that throughout the period leading up to this litigation,
“GNOFHAC has focused not on the facts of the case, but on an attempt to extort funds from the
defendants which they knew the Dopps did not have.”15 Defendants conclude, “GNOFHAC’s
steadfast insistence on extortion of a sum of money from defendants under all of the facts and
circumstances, and their negligent or intentional failure to properly investigate the original claim
and the exculpatory information provided[,] constitutes an actionable tort entitling plaintiffs-incounter-claim to recovery of an appropriate sum to compensate them for their extreme emotional
distress.”16
GNOFHAC filed the instant motion to dismiss pursuant to Rule 12(b)(6), and it argues
that defendants have failed to state a claim under any theory of recovery.17 GNOFHAC also
seeks an award of costs and attorneys’ fees incurred in bringing the motion.18 Defendants argue
that their “counterclaim sets forth more than enough detail to support claims for negligence,
intentional infliction of emotional distress, and negligent infliction of emotional distress” and
that “[i]n the event that this Court finds that more facts are required, defendants should be
allowed to amend the counterclaim before it is dismissed.”19

13

R. Doc. No. 4, at 6.
R. Doc. No. 4, at 6-7.
15
R. Doc. No. 4, at 7.
16
R. Doc. No. 4, at 8.
17
See R. Doc. No. 6-1, at 7.
18
R. Doc. No. 6-1, at 23.
19
R. Doc. No. 8, at 4.
14

3

STANDARD OF LAW
A district court may dismiss a complaint, or any part of it, for failure to state a claim upon
which relief can be granted if the plaintiff has not set forth a factual allegation in support of his
claim that would entitle him to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007);
Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). As the U.S. Court of Appeals for the Fifth
Circuit explained in Gonzalez v. Kay:
“Factual allegations must be enough to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Supreme Court
recently expounded upon the Twombly standard, explaining that “[t]o 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.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “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.”
Id. It follows that “where 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.’” Id. at 679 (quoting Fed.
R. Civ. P. 8(a)(2)).
577 F.3d 600, 603 (5th Cir. 2009).
This Court will not look beyond the factual allegations in the pleadings to determine
whether relief should be granted. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999);
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In assessing the complaint, a court must
accept all well-pleaded facts as true and liberally construe all factual allegations in the light most
favorable to the plaintiff. Spivey, 197 F.3d at 774; Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242,
247 (5th Cir. 1997). “Dismissal is appropriate when the complaint ‘on its face show[s] a bar to
relief.’” Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (quoting Clark v. Amoco
Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)).

4

DISCUSSION
I.

Intentional Infliction of Emotional Distress

Under Louisiana law, an intentional infliction of emotional distress claim requires that 1)
the conduct of the defendant be “extreme and outrageous,” 2) the plaintiff suffer severe
emotional distress, and 3) the defendant desire to inflict the emotional distress or know that
severe emotional distress would be substantially certain to result from his conduct. White v.
Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991). “Louisiana courts have staunchly adhered to
the standard established in White.” LaBove v. Raftery, 802 So. 2d 566, 578 (La. 2001).
In order to be “extreme and outrageous,” the conduct “must be so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized community. Liability does not extend
to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” White,
585 So. 2d at 1209. “The extreme and outrageous character of the conduct may arise from an
abuse by the actor of a position, or a relation with the other, which gives him actual or apparent
authority over the other, or power to affect his interests.” Id. at 1209-10 (citing Restatement
(Second) of Torts, § 46 cmt. d). “The defendant’s knowledge that plaintiff is particularly
susceptible to emotional distress is a factor to be considered.” Id. at 1210.
The Louisiana Second Circuit Court of Appeal, citing Nicholas v. Allstate Insurance Co.,
765 So. 2d 1017 (La. 2000), recently elaborated on the applicable standard for the first element:
It is not enough that the defendant acted with an intent which is tortious or even
criminal, or that he has intended to inflict emotional distress, or even that his
conduct has been characterized by “malice” or a degree of aggravation which
would entitle the plaintiff to punitive damages for another tort. Liability has been
found only where the conduct has been so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community. Generally, the case is
one in which the recitation of the facts to an average member of the community

5

would arouse his resentment against the actor and leave him to exclaim,
“Outrageous.”
Fletcher v. Wendelta, Inc., 999 So. 2d 1223, 1230 (La. App. 2 Cir. 2009).
“[P]roving outrageous conduct by the defendant” is a “heavy burden” for plaintiffs to
meet. Succession of Harvey v. Dietzen, 716 So. 2d 911, 917 (La. App. 4 Cir. 1998). “Persons
must necessarily be expected to be hardened to a certain amount of rough language, and to
occasional acts that are definitely inconsiderate and unkind.” White, 585 So. 2d at 1209.
GNOFHAC primarily argues that defendants’ counterclaim fails to allege facts that
support the first element. According to GNOFHAC, “[t]he filing of an administrative complaint,
proceeding in the administrative process, and making attempts at settlement before filing a
lawsuit, is not ‘extreme’ or ‘outrageous’ activity, particularly as the Dopps’ Counterclaim does
not allege bad faith, ill intent, or malice.”20 GNOFHAC cites DirecTV, Inc. v. Atwood, No. 031457, 2003 WL 22765354 (E.D. La. Nov. 19, 2003) (Engelhardt, J.), for the proposition that “the
act of filing suit ‘is embraced in this and most civilized communities’ and therefore ‘regardless
of plaintiff’s alleged motive—whether it be tortious, malicious, or even criminal—the alleged
conduct itself simply does not rise to the level of extreme and outrageous.’”21
Defendants respond that “GNOFHAC’s conduct has been extreme and outrageous” and
that “the counterclaim alleges that GNOFHAC desired to inflict severe emotional distress
through its pattern of harassment.”22 Defendants allege that “GNOFHAC has withheld all
evidence of wrongdoing and instead has simply demanded money” and that “[i]t ignored all
evidence that pointed to the fact that the Dopps had done nothing wrong and instead zeroed in on
the assertions of its ‘testers’ for the purpose of obtaining money,” all of which it did with
20

R. Doc. No. 6-1, at 15.
R. Doc. No. 6-1, at 15 (quoting DirecTV, 2003 WL 22765354, at *2).
22
R. Doc. No. 8, at 5.
21

6

knowledge “of the effects its actions were having on defendants.”23 Finally, defendants
distinguish DirecTV on the basis that “the ‘[a]lleged conduct at issue [in that case was] the filing
of the suit,’” whereas defendants complain only of GNOFHAC’s pre-lawsuit activity.24
The counterclaim alleges that GNOFHAC “refused to give any reasonable consideration”
to plaintiff’s allegedly exculpatory information during its investigation,25 that GNOFHAC did
not provide “significant details of their investigation” to defendants before filing suit,26 that
GNOFHAC made settlement demands that defendants were “clearly unable to pay and despite
actual knowledge of the emotional toll this took on both of the defendants,”27 and that such
“failure to properly investigate” imposes liability on GNOFHAC.28
Defendants have not cited any authority to support their assertion that such conduct is
extreme and outrageous. Some of the pre-litigation conduct alleged in the counterclaim
commonly occurs in connection with lawsuits filed before this or any other court. GNOFHAC’s
actions of making settlement demands to avoid litigation,29 hiring different attorneys to pursue its
interests,30 and requesting that financial information be turned over voluntarily31 cannot be
“regarded as atrocious and utterly intolerable in a civilized community.” White, 585 So. 2d
at 1209.
In Ulmer v. Frisard, 694 So. 2d 1046 (La. App. 5 Cir. 1997), the Louisiana Fifth Circuit
Court of Appeal found that pre-litigation activities which included conduct somewhat similar to that
23

R. Doc. No. 8, at 5. Defendants do not cite to the counterclaim or its specific allegations in this
section of their opposition.
24
R. Doc. No. 8, at 5 (quoting DirecTV, 2003 WL 22765354, at *2).
25
R. Doc. No. 4, at 5.
26
R. Doc. No. 4, at 6.
27
R. Doc. No. 4, at 6.
28
R. Doc. No. 4, at 8.
29
R. Doc. No. 4, at 6-7.
30
R. Doc. No. 4, at 6-7.
31
R. Doc. No. 4, at 7-8.
7

alleged in this case, did not give rise to liability for intentional infliction of emotional distress.
The court considered an intentional infliction of emotional distress counterclaim filed by pro se
defendants against the plaintiffs and the plaintiffs’ attorney. Id. at 1047, 1049. The defendants
alleged that the attorney “stated, ‘I’m going to clean your clock’ when [defendants] refused to
sign her proposed settlement;” that she “telephoned [defendants] to make threats of continued
litigation and financial ruin;” that defendants were threatened to be driven into bankruptcy; and
that one defendant “was unable to sleep for 72 hours after that threat” and “sustained a nervous
breakdown” following these threats and the receipt of “a demand letter . . . and notice of the
subsequent filings of two lawsuits on behalf of the [plaintiffs].” Id. at 1049. The court stated,
“Upon review of the allegations contained in the [counterclaim], we find no behavior which was
so outrageous in character and so extreme in degree as to go beyond all possible bounds of
decency.” Id. The court found, “While the alleged actions of the attorney in this matter show the
acrimonious nature of the litigation between the parties, it is not actionable.” Id.
Additionally, defendants’ description of GNOFHAC’s activities as “extortion”32 is not
supportable. The counterclaim does not allege any facts to indicate that this a case where there
was any “abuse by the actor of a position, or a relation with the other, which gives him actual or
apparent authority over the other, or power to affect his interests.” White, 585 So. 2d at 1209-10
(citing Restatement (Second) of Torts, § 46 cmt. d). Although GNOFHAC’s alleged “knowledge
that [defendants are] particularly susceptible to emotional distress is a factor to be considered,”
id. at 1210, the mere fact that GNOFHAC’s pre-litigation strategy may have had a substantial
negative impact on defendants does not make such activities tortious.

32

R. Doc. No. 4, at 7.
8

Finally, the Court finds that DirecTV is instructive. Defendants are correct that the
complained-of conduct in DirecTV was filing the lawsuit, 2003 WL 22765354, at *2, whereas
“[i]n the instant case, the conduct occurred prior to suit and thus this case is factually distinct
from DirecTV.”33 Despite this factual distinction, however, the Court finds that the pre-litigation
activity complained of in this case is similar to that complained of in DirecTV. Just like the filing
of a civil action, GNOFHAC’s attempt to resolve its claim without litigation “is an action that is
embraced in this and most civilized communities. Thus, regardless of [GNOFHAC]’s alleged
motive . . . the alleged conduct itself simply does not rise to the level of extreme and
outrageous.” Id.
The Court finds that the counterclaim fails to set forth sufficient factual allegations in
support of defendants’ claim that that GNOFHAC’s conduct was extreme and outrageous. See
Twombly, 550 U.S. at 555. Accordingly, defendants’ counterclaim fails to state a claim for
intentional infliction of emotional distress.34
II.

Negligent Infliction of Emotional Distress

“Louisiana law does not generally recognize an independent cause of action for negligent
infliction of emotional distress. . . . The cause of action is available under limited circumstances
only.” DirecTV, 2003 WL 22765354, at *3 (emphasis added) (internal quotation marks omitted).
Recovery for negligent infliction of emotional distress, when available, is pursuant to Louisiana
Civil Code Article 2315, which provides: “Every act of man whatever that causes damage to
33

R. Doc. No. 8, at 5. It should be noted that defendants state in their sur-reply that “[t]he
tort[i]ous persecution of the defendants in this matter did not end over a year ago, in fact, it
reached its zenith only upon the filing of the lawsuit itself.” R. Doc. No. 19, at 2.
34
Because the Court finds that this element is not present in the counterclaim, the Court need not
address GNOFHAC’s alternative arguments that defendants’ counterclaim does not allege facts
to support the other two elements of the tort, R. Doc. No. 6-1, at 15, that GNOFHAC’s actions
are protected by the First Amendment, R. Doc. No. 6-1, at 19-22, or that defendants’
counterclaims have prescribed, R. Doc. No. 14, at 9-10.
9

another obliges him by whose fault it happened to repair it.” See Powell v. Brookshire’s Grocery
Co., 705 So. 2d 286, 291 (La. App. 2 Cir. 1997). In order for liability to attach under an Article
2315 duty-risk analysis, the plaintiff must prove:
(1) the defendant had a duty to conform his or her conduct to a specific standard
of care (the duty element); (2) the defendant failed to conform his or her conduct
to the appropriate standard (the breach of duty element); (3) the defendant’s
substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-infact element); (4) the defendant’s substandard conduct was the legal cause of the
plaintiff’s injuries (the scope of liability or scope of protection element); and (5)
actual damages (the damages element).
Powell, 705 So. 2d at 292 (citing Mathieu v. Imperial Toy Corp., 646 So. 2d 318, 322 (La.
1994)); Barrino v. E. Baton Rouge Sch. Bd., 697 So. 2d 27, 33-34 (La. App. 1 Cir. 1997)); see
also DirecTV, 2003 WL 22765354, at *3. Furthermore, recovery for negligent infliction of
emotional distress is only available in extraordinary circumstances and recovery is limited to
cases “involving especial likelihood of genuine and serious mental distress, arising from special
circumstances, which serves as a guarantee that the claim is not spurious.” Moresi v. State ex.
rel. Dep’t of Wildlife & Fisheries, 567 So. 2d 1081, 1096 (La. 1990).
GNOFHAC argues that defendants’ counterclaim for negligent infliction of emotional
distress must be dismissed because, as discussed above, GNOFHAC’s conduct was not
“outrageous.”35 Defendants respond that “[t]he allegations in the Counterclaim set forth the
extraordinary circumstances required under Louisiana law in order to state a claim.”36 Both
parties discuss Metoyer v. Am. Eagle Airlines, Inc., 806 F. Supp. 2d 911 (W.D. La. 2011), which
only briefly addresses claims of negligent infliction of emotional distress and which is materially
distinguishable because it arose in the employer-employee context. Id. at 922-23.

35
36

R. Doc. No. 6-1, at 16-17.
R. Doc. No. 8, at 5.
10

Defendants have not offered any authority to support its assertion that a claim for
negligent infliction of emotional distress is viable under these circumstances. As discussed
above, GNOFHAC’s alleged actions include some pre-litigation conduct which occurs in
connection with other lawsuits filed before this or any other court, and the counterclaim does not
allege any “special circumstances” that would permit an independent cause of action for
negligent infliction of emotional distress. See Moresi, 567 So. 2d at 1096.
Furthermore, GNOFHAC’s acts were not so “outrageous” as to be actionable under
Louisiana law “or related to another tort.” Id.; see also McClinton v. Sam’s E., Inc., No. 11-2156,
2012 WL 4483492, at *10 (W.D. La. Sept. 28, 2012) (Foote, J.) (“[B]ecause [plaintiff]’s action
are not sufficiently extreme and outrageous to state a claim of intentional infliction of emotional
distress, a fortiori they do no[t] fall into the category of ‘having an especial likelihood of genuine
and serious mental distress’ as required by Moresi . . . .”); Lester v. Sec’y of Veterans Affairs,
514 F. Supp. 2d 866, 881 (W.D. La. 2007) (“[A] plaintiff may recover for unintentional or
negligent infliction of emotional distress unaccompanied by physical injury where the
defendant’s negligent conduct is deemed to be outrageous.”).
Accordingly, GNOFHAC’s actions do not fall within the “limited circumstances” that
give rise to a claim for negligent infliction of emotional distress. See DirecTV, 2003 WL
22765354, at *3.
III.

Negligence

Defendants rely on Moresi for the proposition that they can maintain an independent
cause of action for “negligence” apart from the above-described claims for intentional and
negligent infliction of emotional distress.37 However, as GNOFHAC correctly notes, defendants

37

R. Doc. No. 8, at 7.
11

have not claimed any economic or physical injury.38 The counterclaim alleges that defendants are
seeking “an appropriate sum to compensate them for their extreme emotional distress . . .
includ[ing], without limitation, the mental and emotional distress placed on each of the Dopps,
and both of them, the emotional strain caused by Mr. Dopp’s contemplation of suicide, and the
destruction of their marriage.”39
Moresi and the opinions that follow it clearly outline the requirements that defendants
must meet in order to only recover emotional damages under the circumstances alleged in the
counterclaim. As discussed above, defendants have failed to state a viable claim pursuant to
those requirements. Defendants cannot avoid this result by restyling their claim as one for
“negligence” as opposed to “negligent infliction of emotional distress.” Accordingly, defendants’
counterclaim fails to state a claim upon which relief can be granted.
IV.

Attorneys’ Fees

GNOFHAC has also sought an award of costs and attorneys’ fees in connection with this
motion.40 GNOFHAC has not identified any legal or factual basis for such an award.
Accordingly, the Court exercises its discretion not to grant GNOFHAC’s request for costs and
attorneys’ fees.
V.

Leave to Amend

Defendants have requested leave to amend their counterclaim “[i]n the event that the
Court determines that the Counterclaim does not contain sufficient facts to state the above causes
of action.”41 “Leave to amend is not automatic . . . [‘]but outright refusal to grant the leave
without any justifying reason appearing for the denial is not an exercise of discretion; it is merely
38

R. Doc. No. 6-1, at 18.
R. Doc. No. 4, at 8.
40
R. Doc. No. 6-1, at 23; R. Doc. No. 14, at 10.
41
R. Doc. No. 8, at 8.
39

12

abuse of that discretion and inconsistent with the spirit of the Federal Rules.’” Advocate Fin.,
LLC v. Schmidt, No. 09-2872, 2010 WL 2867906, at *1 (E.D. La. July 19, 2010) (Lemelle, J.)
(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
The Court is unaware of any additional factual allegations which would allow
defendants’ pursuit of their counterclaim. However, if defendants believe such an amendment
may overcome the defects in their counterclaim as described in this order and reasons, they may
file an amended counterclaim in accordance with the deadline set forth in the scheduling order.42
CONCLUSION
For the foregoing reasons,
IT IS ORDERED that the motion is GRANTED IN PART. Defendants’ counterclaim
is DIMISSED WITHOUT PREJUDICE to defendants’ right to file an amended counterclaim
no later than Friday, April 25, 2014.
IT IS FURTHER ORDERED that the motion is DENIED to the extent that it seeks an
award of GNOFHAC’s costs and attorneys’ fees.

New Orleans, Louisiana, April 22, 2014.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

42

R. Doc. No. 7, at 2. The Court notes that defendants have been on notice of the alleged
deficiencies in their counterclaim since the motion to dismiss was filed on March 24, 2014.
13