Costanza v. Tchefuncte Harbour Association, Inc. et al

Filing 19

ORDER & REASONS granting 10 Motion to Dismiss Case, and the plaintiff's claims are hereby dismissed. Signed by Judge Martin L.C. Feldman on 7/14/2014. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

THOMAS MICHAEL COSTANZA

CIVIL ACTION

v.

NO. 14-0488

TCHEFUNCTE HARBOUR
ASSOCIATION, INC., ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is the defendants' motion to dismiss the
plaintiff's complaint pursuant to Federal Rule of Civil Procedure
12(b)(6). For the reasons that follow, the motion is GRANTED.
Background
This litigation arises from a townhouse association's alleged
attempts to enforce restrictions on a townhouse owner's display of
his American flag.
Thomas Michael Constanza owns and resides in two townhouse
units located at 127 Highway 22 East in Madisonville, Louisiana.
Tchefuncte Harbour Association, Inc. is the owner and operator of
the townhouse development, as well as the homeowner's association
that manages the property; Albert Oglesby is employed by Tchefuncte
as the association manager.

Alcor Group, L.L.C. manages the

development.

1

In May 2013 Constanza began displaying the American flag
outside the door to his townhouse.

The Association has advised

Constanza that his flag display violates the parties' convenants
and restrictions applicable to his townhouse. Negotiations between
the parties failed.

Costanza continues to display the flag.

In

October 2013 the Association recorded in the mortgage records for
the Clerk of Court of St. Tammany Parish a lien and privilege
affidavit against Constanza's property; a portion of this lien
relates to Costanza's flag display.
After more failed negotiations and alleged harassment by the
Association (through Mr. Oglesby), Costanza sued the Association,
the Alcor Group, and Oglesby in this Court, invoking this Court's
federal

question

jurisdiction.

Costanza

seeks

a

declaration,

pursuant to the Freedom to Display the American Flag Act of 2005,
that the actions of the Association are invalid.

He also seeks

damages and attorney's fees pursuant to 42 U.S.C. § 1983 for the
defendants' alleged infringement of his First Amendment rights.
The defendants now seek dismissal of the plaintiff's complaint for
failure to state a claim upon which relief may be granted.
I.
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
a claim upon which relief can be granted.

Such a motion is rarely

granted because it is viewed with disfavor.

2

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)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."

Ashcroft v.

Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed.R.Civ.P. 8).

"[T]he

pleading standard Rule 8 announces does not require 'detailed
factual allegations,' but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation."

Id. at 678 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court “accepts ‘all
well-pleaded

facts

as

true,

favorable to the plaintiff.’”

viewing

them

in

the

light

most

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.
at 1050.

Kaiser, 677 F.2d

Indeed, the Court must first identify allegations that

are conclusory and, thus, not entitled to the assumption of truth.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). A corollary: legal
conclusions “must be supported by factual allegations.”
678.

Assuming

the

veracity

of

the

well-pleaded

Id. at
factual

allegations, the Court must then determine “whether they plausibly

3

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

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).
Finally, “[w]hen reviewing a motion to dismiss, a district
court ‘must consider the complaint in its entirety, as well as

4

other sources ordinarily examined when ruling on Rule 12(b)(6)
motions to dismiss, in particular, documents incorporated into the
complaint by reference, and matters of which a court may take
judicial notice.”

Funk v. Stryker Corp., 631 F.3d 777, 783 (5th

Cir. 2011)(quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007)).

II.
A.

The Freedom to Display the American Flag Act of 2005

The defendants seek dismissal of the plaintiff's claim for
declaratory relief under the Freedom to Display the American Flag
Act on the ground that the Act provides no private right of action.
The Court agrees.
4 U.S.C. § 5, entitled "Display and use of flag by civilians;
codification of rules and customs; definition", provides:
The following codification of existing rules and customs
pertaining to the display and the use of the flag of the
United States of America is established for the use of
such civilians ... as may not be required to conform with
regulations promulgated by one or more executive
departments of the Government of the United States....
In 2006 Congress passed the Freedom to Display the American Flag
Act of 2005, Pub.L. No. 109-243, 120 Stat. 572 (2006).

The Act,

codified as a note to 4 U.S.C. § 5, provides:
A condominium Association, cooperative Association, or
residential real estate management Association may not
adopt or enforce any policy, or enter into any agreement,
that would restrict or prevent a member of the
Association from displaying the flag of the United States
5

on residential property within the Association with
respect to which such member has a separate ownership
interest or a right to exclusive possession or use.
The Act further states:
Nothing in this Act [this note] shall be considered to
permit any display or use that is inconsistent with-(1) ... any rule or custom pertaining to the proper
display or use of the flag; or
(2) any reasonable restriction pertaining to the time,
place, or manner of displaying the flag of the United
States necessary to protect a substantial interest of the
condominium association, cooperative association, or
residential real estate management association.
Id.

Noticeably absent from the text of the Act is an express

creation of a private right of action, any explicit enforcement
mechanism or remedy, or any reference to penalties or sanctions to
be imposed for violations.
draftmanship.

The Act is simply an example of poor

The plaintiff urges the Court to divine an implied

right of action by resort to the factors analyzed in Cort v. Ash,
422 U.S. 66 (1975).

But resort to the legislative history of the

Act does not compel the plaintiff's desired result.
To be sure, the U.S. Court of Appeals for the Fifth Circuit
continues

to

apply

the

four

factors

articulated

1

in

Cort,1

"To determine whether we should infer a cause of action
when one is not explicitly authorized by Congress," the Fifth
Circuit has instructed, "we must answer the[se] four questions":
(1) whether the plaintiff is one of a class
for whose especial benefit the statute was
enacted;
(2) whether there is an indication of
legislative intent to create or deny such
remedy;
(3)
whether
such
a
remedy
would
be
6

notwithstanding observations that the Cort analysis has shifted to
focus exclusively on legislative intent.

See California v. Sierra

Club, 451 U.S. 287, 293 (1981)("Cases subsequent to Cort have
explained that the ultimate issue is whether Congress intended to
create a private right of action..., but the four factors ...
remain

the

'criteria

through

which

this

intent

could

be

discerned'"); Thompson v. Thompson, 484 U.S. 174, 178 (1988)("In
determining whether to infer a private cause of action from a
federal statute, our focal point is Congress' intent in enacting
the

statute");

Thompson,

484

U.S.

at

189

(Scalia,

J.,

concurring)("It could not be plainer that we effectively overruled
the Cort v. Ash analysis in Touche Ross& Co. v. Redington, 442 U.S.
560, 575-576, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) and Transamerica
Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18, 100 S.Ct. 242,
246, 62 L.Ed.2d 146 (1979), converting one of its four factors
(congressional intent) into the determinative factor, with the
other three merely indicative of its presence of absence")(emphasis
in original); Wright v. Allstate Ins. Co., 500 F.3d 390, 395 (5th
Cir.

2007)(acknowledging

that

"the

determinative

question

is

whether Congress intended to create a private right of action in

inconsistent with the underlying legislative
purpose; and
(4) whether the cause of action is one
traditionally relegated to state law.
Wright v. Allstate Ins. Co., 500 F.3d 390, 395 (5th Cir. 2007)
(quoting Cort v. Ash, 422 U.S. 66, 78 (1975)).
7

favor of the plaintiff" but nonetheless analyzing each of the four
factors).
The plaintiff alleges that, by harassing him and attempting to
enforce the covenants restricting his display of the flag on his
townhouse, the Association has (and continues to) violate the Act,
and the Court should declare that the Association is conducting
itself contrary to the Act.

But, no matter how questionable the

Association's rule or attitude, "'the fact that a federal statute
has been violated and some person harmed does not automatically
give rise to a private cause of action in favor of that person.'"
Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979)(quotation
omitted).
Turning to the determinative question: Did Congress intend to
create the private right of action Costanza asserts?
The answer is, simply, no. As already noted, there is nothing
in the text of the statute to support the creation of a private
right of action.

Nor is there any reference to a remedy, an

enforcement mechanism, or penalties to be imposed for violations.
Likewise, there is nothing implicit in the language or structure of
the Act, or apparent from the circumstances of its enactment, that
suggests congressional intent to establish a private right of
action. In fact, one other district court that has considered this
issue in an identical context -- a condominium owner challenging
the condominium association's restrictions on his display of the

8

American flag -- examined the legislative history and declined to
find

an

implied

Condominium

at

right

of

Sweetwater

action.
by

Del

In

Murphree

Webb

v.

Master

The

Tides

Homeowners'

Association, Inc., the district court observed:
Legislative history regarding the Act ... is sparse....
The bill's sponsor, Representative Roscoe Bartlett, of
Maryland, introduced H.R. 42 as a bill "to ensure that
the right of an individual to display the flag of the
United States on residential property not be abridged."
...
[Rep. Bartlett] explained: "It is a very simple
bill. It simply says that a homeowner or condominium
owner cannot be prohibited from flying the flag of his
country. It also says that the association may place
reasonable limits on the time and the manner of
displaying the flag."
Representative Dennis Moore of
Kansas spoke in support of the bill, saying that the bill
"ensures that Americans may display the American flag
wherever they live," by providing that a condominium
association "may not prohibit a resident of the
association from displaying the American flag on their
property within the association." ... The United States
House of Representatives passed the bill on June 27,
2006, by voice vote. The United States Senate engaged in
no discussion of the bill, which passed by the unanimous
consent of the members of the Senate on July 17, 2006.
No. 13-713, 2014 WL 1293863, at *11 (M.D. Fla. March 31, 2014)
(internal citations omitted).2

In other words, the legislative

2

Notably, case literature considering the predecessor
statute to the Flag Code (now 4 U.S.C. § 5) held that the statute
was "merely advisory" and was "not intended to proscribe conduct."
Dimmitt v. City of Clearwater, 985 F.2d 1565, 1573 (11th Cir.
1993)("even if the Flag Code were intended to proscribe behavior,
[there had been no showing] that the Flag Code contains an implicit
right of action..."). The district court in Murphree acknowledges
that, although it could locate no court decision discussing the
Act, the Eleventh Circuit in Dimmitt, in considering the
predecessor statute, observed that "the statute consistently used
the term 'should' rather than 'shall' when discussing the customs
[and, the Eleventh Circuit observed] that 'Congress attached no
penalty
provisions
for
noncompliance
with
the
display
9

history is silent on the issue of whether a private right of action
should be available under the Act.
Court

must

heed

the

U.S.

Under these circumstances, the

Supreme

Court's

prudent

cautionary

instruction: "implying a private right of action on the basis of
congressional silence is a hazardous enterprise, at best."
Ross

&

Co.

v.

Redington,

442

U.S.

560,

571

Touche

(1979)(citation

omitted).
With respect to the touchstone of an implied rights inquiry -legislative history -- the plaintiff advances no support for the
outcome he seeks; he understandably asks "Why would Congress enact
this Statute if [it] did not intend for it to have teeth and grant
the protected class a remedy in this exact situation?" The Court
wonders as well.

The plaintiff is clearly frustrated.

But

rhetoric is not a predicate for the implication of a private
remedy.3

Rather, "[t]he intent of Congress remains the ultimate

provisions...' [whereas] Congress enacted specific penalties for
persons manufacturing service flags or lapel buttons without a
license." Murphree, 2014 WL 1293863, at *12-13.
3

To accept the plaintiff's argument, the Court would
forego any inquiry into implied rights and simply imply them
whenever Congress failed to do so. But "[a]s countless statutes
demonstrate ... Congress recognizes that the creation of private
actions is a legislative function and frequently exercises it.
When Congress chooses not to provide a private civil remedy,
federal courts should not assume the legislative role of creating
such a remedy and thereby enlarge their jurisdiction." See
Thompson, 484 U.S. at 189 (Scalia, J., concurring)(quoting Cannon
v. University of Chicago, 441 U.S. 677, 730-731 (1979)(Powell, J.,
dissenting)). On the other hand, "[i]f we were to announce a flat
rule that private rights of action will not be implied in statues
hereafter enacted, the risk that that course would occasionally
10

issue ... and 'unless this congressional intent can be inferred
from the language of the statute, the statutory structure, or some
other source, the essential predicate of private remedy simply does
not

exist.'"

Thompson

v.

Thompson,

484

U.S.

174,

179

(1988)(quoting Northwest Airlines, Inc. v. Transport Workers, 451
U.S. 77 (1981)).

The plaintiff offers up no source that would

support his hope that he has a private right of action under the
Act.

Accordingly, his request for declaratory relief pursuant to

the Act must fail.
B.

42 U.S.C. § 1983

Costanza also charges that the defendants violated his First
Amendment rights by harassing him, fining him, and otherwise
interfering with his display of the American flag.

The defendants

contend that dismissal of Costanza's § 1983 claim is warranted
because they are not state actors, although Costanza persists that
filing a lien in the mortgage records, a portion of which arises
from his display of the flag, rises to the level of state action.
He is simply wrong.

frustrate genuine legislative intent would decrease from its
current level of minimal to virtually zero." Thompson, 484 U.S. at
192 (Scalia, J., concurring)("[I]t is my view that, if the current
state of the law were to be changed, it should be moved ... away
from our current congressional intent test to the categorical
position that federal private rights of action will not be
implied.... If a change is to be made, we should get out of the
business of implied private rights of action altogether.").
11

Title 42, U.S.C. § 1983 creates a damages remedy for the
violation of federal constitutional or statutory rights under color
of state law; it provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ... subjects,
or causes to be subjected, any ... person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured.
To establish § 1983 liability, the plaintiff must satisfy three
elements:
(1)
(2)
(3)

deprivation of a right secured by the
Constitution or federal law,
that occurred under color of state law, and
was caused by a state actor.

U.S.

Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004)
(citation omitted).

"[T]he under-color-of-state-law element of §

1983 excludes from its reach merely private conduct, no matter how
discriminatory or wrongful." Am. Mfrs. Mut. Ins., Co. v. Sullivan,
526 U.S. 40, 49-50 (1999)(internal quotation marks and citation
omitted).

Thus, the general rule is that private companies or

individuals "are not considered to act under color of law, i.e.,
are not considered state actors."
518 (5th Cir. 2005).

Ballard v. Wall, 413 F.3d 510,

However, a private company or citizen may be

held liable under § 1983 if that citizen conspired with or acted in
concert with state actors; the private citizen must be a "willful
participant in joint activity with the State or its agents."
Priester

v.

Lowndes

County,

354
12

F.3d

414,

420

(5th

See
Cir.

2004)(citations omitted).
Costanza invokes Shelley v. Kraemer, 334 U.S. 1 (1948) in
support of his state action theory.4

The petitioners in Shelley

had purchased residential properties that were subject to raciallybased restrictive covenants; the covenants were enforced through
state court action.

The U.S. Supreme Court ruled that state

judicial enforcement of racially restrictive covenants in land
deeds constituted state action that violated the Equal Protection
Clause of the Fourteenth Amendment.
Shelley,

the

petitioners

were

Id. at 19-20.

subject

to

state

Notably, in
court

orders

divesting them of title in their properties; that state court
orders

were

in

place

to

enforce

the

racially

discriminatory

covenants quite reasonably compelled a finding of state action.
Id.

("[B]ut for the active intervention of the state courts,

supported by the full panoply of state power, petitioners would
have been free to occupy the properties in question without
restraint.").
Here, Costanza alleges that the Association has recorded a
lien on his property, a portion of which relates to Costanza's

4

Costanza does not allege that the defendants, private
companies and a private individual, entered into an agreement with
some public entity to deprive him of his First Amendment rights.
Instead, he contends that, by filing a lien in St. Tammany Parish,
the defendants' actions arise to the level of state action.
13

display of the flag;5 but, unlike the state court orders actually
issued in Shelley to enforce the racially restrictive covenants,
Costanza alleges no such judicial intervention or enforcement of
the Association's lien.
as a matter of law.6

Without it, his state action theory fails

Because the plaintiff offers no facts from

which the Court can infer state action on the part of these private
defendants, he has not stated a claim for relief under § 1983.
Accordingly, the defendants' motion to dismiss is GRANTED, and
the plaintiff's claims are hereby dismissed.7

5

The parties dispute whether or not the flag is being
displayed on Costanza's property or on common property.
This
dispute is irrelevant for the purposes of resolving the motion to
dismiss.
6

The case literature invoked by the defendants bolsters
this conclusion. See, e.g., Loren v. Sasser, 309 F.3d 1296, 1303
(11th Cir. 2002)(mere threat of judicial enforcement of homeowner's
association's restriction preventing homeowner's display of "For
Sale" sign in front yard on subdivision property did not constitute
state action; noting that "Shelley has not been extended beyond
race discrimination"); Barr v. Camelot Forest Conservation Ass'n,
Inc., 153 Fed.Appx. 860, 862 (3d Cir. 2005)(homeowner's
association's removal of "For Sale" signs from homeowner's property
and enforcement of deed restriction did not involve state action),
cert. denied, 547 U.S. 1193 (2006); Murphree v. The Tides
Condominium at Sweetwater by Del Webb Master Homeowners'
Association, Inc., No. 13-713, 2014 WL 1293863, at *8 (M.D. Fla.
March 31, 2014) (addressing circumstances nearly identical to
Costanza's and concluding that, in failing to allege any judicial
enforcement of the restrictive covenants, the plaintiff fails to
allege state action).
7

In commencing this lawsuit in federal court, Costanza
invoked this Court's federal question jurisdiction. In determining
that Costanza failed to state a claim under the Act and that he
failed to state a claim under § 1983, the only remaining
allegations in his complaint are that he is entitled to a
declaratory judgment and that he "also alleges a state cause of
14

New Orleans, Louisiana, July 14, 2014

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

action in this matter." Costanza's claim for declaratory relief
was predicated on his claim under the Freedom to Display the
American Flag Act, which fails as a matter of law. Of course, the
Declaratory Judgment Act does not, standing alone, confer
jurisdiction upon federal courts. See Lawson v. Callahan, 111 F.3d
403, 405 (5th Cir. 1997). Rather, it authorizes a federal court,
"in a case of actual controversy within its jurisdiction[,] to
"declare the rights and other legal relations of any interested
party seeking such declaration[.]" 28 U.S.C. § 2201. In short,
because Costanza's claim for declaratory relief is premised on an
alleged violation of the Freedom to Display the American Flag Act,
and there is no right of action under the latter, his claim for
declaratory relief cannot stand alone and, therefore, fails.
Finally, Costanza neither articulated in his complaint nor
identified in his opposition papers the "state cause of action" he
alludes to in his complaint.
15