Spells et al v. New Orleans City
Filing
21
ORDER & REASONS: ORDERED that 17 Motion to Dismiss for Lack of Jurisdiction is GRANTED and the Court is not compelled to consider its alternative motion to dismiss on the merits. Signed by Judge Martin L.C. Feldman. (cml)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WAYNE WALKER AS ADMINISTRATOR
OF THE SUCCESSIONS OF ARNETT
CALHOUN SPELLS, SR. AND ARNETT
CALHOUN SPELLS, JR.
CIVIL ACTION
V.
NO. 15-3823
THE CITY OF NEW ORLEANS
SECTION "F"
ORDER AND REASONS
Before the Court is defendant’s motions to dismiss for lack
of jurisdiction, or in the alternative, for a failure to state a
claim upon which relief can be granted. For the following reasons,
the motion to dismiss for lack of subject matter jurisdiction is
GRANTED. The Court need not reach the alternative motion.
Background
The successors to two record property owners brought suit
against the City of New Orleans. 1 The succession administrator, as
the newly-substituted plaintiff, alleges that the City violated
the presumptive heirs’ constitutional rights under 42 U.S.C. §
1983 when the City levied liens on the property because of the
blighted state of the immovable property. He charges that the City
1
John Spells, Ray Spells, Darrell Walker, and Wayne Walker
originally filed this lawsuit in their individual capacities as
presumptive heirs of Spells and Spells, Jr., who are the nowdeceased record owners of the property. The original plaintiffs
filed a motion to substitute Wayne Walker as the plaintiff in
this lawsuit because he serves as the succession administrator.
1
did not give the heirs proper notice and this was a violation of
the heirs’ constitutional property rights.
The record property owners of immovable property located at
1522-24 Baronne Street in New Orleans, Louisiana are Arnett Calhoun
Spells and Arnett Spells, Jr. 2 Arnett Calhoun Spells died in
Orleans Parish in 1998; Arnett Spells, Jr. died in 2008. Five years
following the deaths of the last living record owner, the heirs to
this property had still taken no action to change the name of the
record property holder.
The City of New Orleans commenced administrative proceedings
against the property under the blighted housing ordinance, Docket
No. 13-07111-PNBL, alleging the property was in violation of
Chapter 28 of the City Code of New Orleans. 3 An administrative
judgment was rendered on August 14, 2014. The judgment assesses
fines of $3,300, a hearing fee of $75, and a recordation fee of
$80. Additionally, the judgment provides that additional fines of
$500 per day for one year following the judgment date are possible. 4
The
succession
administrator
alleges
that
this
judgment
deprives the presumptive heirs their rights secured under the
2
Both parties interchangeably spell Arnett as “Arnett” and
“Arnette.” The Court uses Arnett, from plaintiff’s original
complaint.
3 Section 28-38 of the Code of the City of New Orleans is
entitled “Blighted Property.”
4 If the City assessed this prospective fee for the entire one
year period, that would add $182,500 to the lien against the
property.
2
Constitution of the United States as well as under Louisiana state
law. In compliance with the Code of New Orleans, the City complied
with section 6-36, which covers the notice and service requirements
for an administrative proceeding. Specifically, the City attempted
to serve process on the record owners of the property by sending
notices via certified mail; the notices were returned to the City.
The succession
administrator
contends
that
the
administrative
proceeding is null because judgment was rendered against two
deceased
individuals.
Further,
the
succession
administrator
alleges that the City never had personal jurisdiction over Spells
and Spells, Jr. in the administrative hearing because service could
never be effected upon them and that the City had knowledge of
this when the notices were returned as “Not Deliverable” and
“Unable to Forward.”
The City of New Orleans responds that it followed the City’s
Code
when
serving
notice
to
the
named
defendants
in
the
administrative proceeding. The City Code provides that the City
send notice through the mail to the record owner of the property
listed
in
the
Parish
Assessor’s
Office.
At
the
time
of
the
administrative proceedings, Spells and Spells, Jr., though both
deceased, were the record owners of the property in the assessor’s
office.
In its motion to dismiss, the City alleges there is no subject
matter jurisdiction because the succession administrator does not
3
have standing and also that the administrator alleges no claim for
which relief can be granted. On the jurisdictional ground, the
City alleges, first, that the succession administrator steps into
the deceased’s position, and second, that a deceased person does
not have a viable claim under 42 U.S.C. § 1983. Alternatively, the
City moves to dismiss for failure to state a claim upon which
relief can be granted.
I.
“When a Rule 12(b)(1) motion is filed in conjunction with
other Rule 12 motions, the court should consider the Rule 12(b)(1)
jurisdictional attack before addressing any attack on the merits.”
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
Motions filed under Rule 12(b)(1) of the Federal Rules of
Civil Procedure allow a party to challenge the Court’s subject
matter jurisdiction.
FED. R. CIV. P. 12(b)(1). "As a court of
limited jurisdiction, a federal court must affirmatively ascertain
subject-matter
jurisdiction
before
adjudicating
a
suit.
The
district court should dismiss where it appears certain that the
plaintiff cannot prove a plausible set of facts that establish
subject-matter
jurisdiction."
Venable
v.
Louisiana
Workers'
Compensation Corp., 740 F.3d 937, 941 (5th Cir. 2014)(citations
and internal quotations omitted).
Contrary to a 12(b)(6) motion, the Court may find a plausible
set of facts to support subject matter jurisdiction by considering
4
any of the following: “(1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3)
the complaint supplemented by undisputed facts plus the court's
resolution of disputed facts.”
Spotts v. United States, 613 F.3d
559, 565-66 (5th Cir. 2010)(citation omitted). "The burden of proof
for a Rule 12(b)(1) motion is on the party asserting jurisdiction."
Alfonso v. United States, 752 F.3d 622, 625 (5th Cir. 2014)(quoting
In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 646 F.3d 185,
189
(5th
Cir.
2011)(internal
citation
and
quotation
marks
omitted)). 5
II.
The City contends that the succession administrator, for the
heirs, steps into the shoes of the deceased. It follows, the City
alleges, that because an individual cannot have a section 1983
claim after death, then a succession administrator also cannot
have a viable section 1983 claim.
5
Rule 12(b)(1) is similar to that applicable to motions to dismiss
under Rule 12(b)(6). See Williams v. Wynne, 533 F.3d 360, 364-65
n.2 (5th Cir. 2008)(observing that the Rule 12(b)(1) and Rule
12(b)(6) standards are similar, but noting that applying the Rule
12(b)(1) standard permits the Court to consider a broader range of
materials in resolving the motion). "'[T]he central issue [in
deciding a motion to dismiss] is whether, in the light most
favorable to the plaintiff, the complaint states a valid claim for
relief.'" Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir.
2010)(citation omitted).
5
The Fifth Circuit holds that “[s]tanding under the Civil
Rights Statutes is guided by 42 U.S.C. § 1988, which provides that
state common law is used to fill the gaps of civil rights suits.
Therefore. A party must have standing under the state wrongful
death or survival statutes to bring a claim under 42 U.S.C. § . .
. 1983 . . . .” Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir. 2004)
(citations omitted). Louisiana Civil Code Article 2315.2, Wrongful
Death
Action,
does
not
provide
a
wrongful
death
action
for
succession representatives. 6
Here, the succession administrator is the named plaintiff in
the lawsuit. The succession administrator, under Louisiana state
law does not have standing to bring a wrongful death action. It
follows, that because the administrator could not rightfully bring
a wrongful death action, the administrator also does not have
standing to bring a civil rights action under 42 U.S.C. § 1983.
See Pluet, 355 F.3d at 383. Without standing, there is no viable
claim before this Court. FED. R. CIV. P. 12(b)(1).
Accordingly, the City of New Orleans’ motion to dismiss for lack
of jurisdiction is hereby GRANTED and the Court is not compelled
to consider its alternative motion to dismiss on the merits.
6
La. Civ. Code Art. 2315.2, as relevant, allows only “[t]he
surviving spouse and child or children of the deceased, or
either the spouse or the child or children” to bring a wrongful
death action.
6
New Orleans, Louisiana, October 3, 2016
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
7
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