R Bend Estates II, L.L.C. et al v. St. John the Baptist Parish et al
Filing
26
ORDER AND REASONS - IT IS ORDERED that the following claims are DISMISSED WITHOUT PREJUDICE: (1) Plaintiffs claims under the Takings Clause of the Fifth Amendment to the United States Constitution and Article 1, Section 4, of the Louisiana Constituti on, and (2) Plaintiffs procedural due process claims that St. John the Baptist Parish refused to accept their applications for special-use permits and passed an ex post facto law without an opportunity for them to be heard. To the extent Plaintiffs seek injunctive relief in this Court, those claims are also DISMISSED WITHOUT PREJUDICE as unripe. Signed by Judge Susie Morgan.(bwn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
R BEND ESTATES II, LLC,
ET AL.,
Plaintiffs
CIVIL ACTION
VERSUS
NO. 15-4951
ST. JOHN THE BAPTIST
PARISH, ET AL.,
Defendants
SECTION: “E”(1)
ORDER AND REASONS
The Court considers sua sponte whether it has subject-matter jurisdiction over the
Plaintiffs’ claims.1 The Court finds it does not have subject-matter jurisdiction over
Plaintiffs’ takings claims and procedural due process claims as they are not ripe. As a
result, those claims are DISMISSED WITHOUT PREJUDICE. The Court has
jurisdiction, however, over Plaintiffs’ substantive due process and equal protection
claims.2
FACTUAL & PROCEDURAL BACKGROUND
On October 3, 2015, Plaintiffs, R Bend Estates II, LLC (“R Bend”), Pierre Gaudin,
and John Treme, filed this federal civil action against St. John the Baptist Parish and the
St. John the Baptist Parish Council. According to the Plaintiffs, the Defendants have, on
more than one occasion, arbitrarily and capriciously refused to issue to them appropriate
zoning permits, which has prevented Plaintiffs from developing property they own or
control in St. John the Baptist Parish. The Plaintiffs allege violations of (1) the Takings
Subject-matter jurisdiction cannot be waived and must be raised by the court sua sponte. FED. R. CIV. P.
12(h)(3); Lane v. Halliburton, 529 F.3d 548, 565 (5th Cir. 2008) (“We are duty-bound to examine the basis
of subject matter jurisdiction sua sponte.”); Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996). See also Walker
v. Teledyne Wah Chang, 423 F. Supp. 2d 647, 649 (S.D. Tex. 2003). The Defendants asserted lack of
subject-matter jurisdiction as an affirmative defense in their answer but did not file a motion to dismiss.
See R. Doc. 12 at 6.
2 As discussed herein, those claims may be subject to dismissal for failure to state a claim upon which relief
can be granted.
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Clause of the Fifth Amendment to the United States Constitution and Article 1, Section 4,
of the Louisiana Constitution; and (2) the due process and equal protection guarantees in
both the United States Constitution and the Louisiana Constitution.3
This matter involves a local zoning dispute that has not been fully litigated at the
state level. The Fifth Circuit and the courts within it generally recognize that takings
claims are not ripe in federal court until “(1) the relevant governmental unit has reached
a final decision as to what will be done with the property and (2) the plaintiff has sought
compensation through whatever adequate procedures the state provides.” 4 Likewise, due
process and equal protection claims are unripe in federal court if the claims rest solely on
rights afforded by the Takings Clause and they are brought in conjunction with an unripe
takings claim.5 To address these concerns, on July 12, 2016, the Court ordered Plaintiffs
to file a brief in support of the Court’s subject-matter jurisdiction over this action. The
Court also permitted Defendants to file a brief challenging the Court’s subject-matter
jurisdiction.
LAW AND ANALYSIS
I.
TAKINGS CLAIMS
As stated above, it is well accepted in the Fifth Circuit that a takings a claim is not
ripe in federal court until “(1) the relevant governmental unit has reached a final decision
as to what will be done with the property and (2) the plaintiff has sought compensation
through whatever adequate procedures the state provides.”6 In cases in which no actual
R. Doc. 1 at 7–8.
Sandy Creek Investors, Ltd. v. City of Jonestown, 325 F.3d 623, 626 (5th Cir. 2003) (citing Williamson
Cnty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194–95 (1985)).
5 See, e.g., John Corp. v. City of Houston, 214 F.3d 573, 584 (5th Cir. 2000).
6 Sandy Creek, 325 F.3d at 626 (citations omitted). See also Steward v. City of New Orleans, 537 F. App’x
552, 554–55 (5th Cir. 2013); Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 223–24 (5th Cir. 2012);
Rosedale Missionary Baptist Church v. New Orleans City, 641 F.3d 86, 88 (5th Cir. 2011); Coates v. Hall,
512 F. Supp. 2d 770, 784 (5th Cir. 2007); Willis v. City of Hattiesburg, Miss., No. 2:13CV218-HSO-RHW,
2014 WL 11515567, at *3 (S.D. Miss. July 14, 2014); TexCom Gulf Disposal, LLC v. Montgomery Cnty., Tex.,
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taking has occurred, “Louisiana law recognizes an inverse condemnation action as a
means of seeking just compensation.”7 In this case, Plaintiffs concede their property has
not been taken but argue they have been denied special-use permits such that they are
unable to develop their property. Plaintiffs also concede they “have not availed themselves
[of] state court proceedings for compensation in an inverse condemnation action.”8 As a
result, Plaintiffs’ claims under the Takings Clause of the Fifth Amendment to the United
States Constitution and Article 1, Section 4, of the Louisiana Constitution for failing to
issue special-use permits, and thereby denying Plaintiffs the ability to use and develop
their property, are not ripe for consideration in federal court and, for that reason, are
dismissed without prejudice.9
II.
PROCEDURAL V. SUBSTANTIVE DUE PROCESS
Plaintiffs do not distinguish between their procedural due process claims and their
substantive due process claims, but this distinction is of critical importance. Procedural
due process claims, like takings claims, are not ripe in federal court until state remedies
have been exhausted.10 True substantive due process claims need not be exhausted at the
state level to be ripe for consideration in federal court, but substantive due process claims
that are in reality subsumed by unripe takings claims are themselves unripe. A substantive
due process claim is subsumed by an unripe takings claim when the substantive due
No. H-13-2789, 2014 WL 2931943, at *4 (S.D. Tex. June 27, 2014); Bienville Quarters, LLC v. E. Feliciana
Parish Police Jury, No. 07-158-JJB-DLD, 2010 WL 2653317 (M.D. La. June 25, 2010);
7 Bienville Quarters, 2010 WL 2653317, at *2 (citing State v. Chambers Inv. Co., 595 So.2d 598, 602 (La.
1992)). “The Louisiana inverse condemnation action is considered adequate for these purposes.” Blue
Monkey Bar, LLC v. Jefferson Parish, No. 10-2947, 2011 WL 1303420, at *8 (E.D. La. Mar. 30, 2011).
8 R. Doc. 21 at 1.
9 See, e.g., Willis, 2014 WL 11515567, at *3 (“There is no indication that Plaintiffs . . . exhausted municipal
and state procedures[] or otherwise sought compensation in state court before pursuing their federal claims
in this case. Nor have Plaintiffs shown that the State’s procedures for seeking compensation are unavailable
or inadequate. Plaintiffs have not shown that their federal takings claim is ripe. This claim must be
dismissed without prejudice.” (citations omitted)).
10 See, e.g., Rathjen v. Litchfield, 878 F.2d 836, 839–40 (5th Cir. 1989) (“[N]o denial of procedural due
process occurs where a person has failed to utilize the state procedures available to him.”)).
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process claim rests solely on rights afforded by the Takings Clause and is brought in
conjunction with an unripe takings claim.11
Plaintiffs have failed to distinguish their procedural due process claims from their
substantive due process claims. The Court will do so based on the allegations of the
Complaint.
III.
PROCEDURAL DUE PROCESS CLAIMS
Procedural due process requires “the government to follow appropriate procedures
when its agents decide to deprive any person life, liberty, or property.”12 “Due process
requires notice and an opportunity for a hearing before a government entity can deprive
a person of property rights.”13 In this case, Plaintiffs have alleged that St. John the Baptist
Parish (1) refused to accept applications for special-use permits, which denied them the
ability to use their property as they saw fit, and (2) passed an ex post facto law, without a
hearing or opportunity to be heard, specifically to interfere with Plaintiffs’ property rights.
Accordingly, Plaintiffs have clearly alleged that their procedural due process rights were
violated. The Court must determine whether Plaintiffs’ procedural due process claims are
ripe for consideration in federal court.
In Bowlby v. City of Aberdeen, Mississippi, the Fifth Circuit explained that a
“procedural due process claim that is brought concurrently with a takings claim . . . should
be analyzed . . . according to ‘general ripeness principles.’”14 More specifically, the Bowlby
court explained the Fifth Circuit “has distinguished procedural due process claims that
involve allegations of deprivations ‘ancillary to’ or ‘arising from’ a takings claim from
Bienville Quarters, 2010 WL 2653317, at *3
John Corp., 214 F.3d at 577 (internal quotations and citations omitted).
13 Gibb v. City of Friendswood, No. G-07-329, 2007 WL 4326739, at *5 (S.D. Tex. Dec. 6, 2007) (citing
Dailey v. Vought Aircraft Co., 141 F.3d 224, 299 (5th Cir. 1998)).
14 Bowlby, 681 F.3d at 223.
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those whose main thrust is not a claim for a taking.”15 “The ripeness of the former depends
on the ripeness of the ‘ancillary’ takings claim, while the ripeness of the latter is a separate
matter from the ripeness of any attendant takings claim.”16
A plain reading of the Complaint reveals that Plaintiffs’ procedural due process
claims allege deprivations “ancillary to” or “arising from” their takings claims. For
example, the Plaintiffs allege in their Complaint that St. John the Baptist Parish has
repeatedly refused to issue them permits and/or zoning variances, which has denied
Plaintiffs the ability to develop their property for a legally permissible use, which, in turn,
amounts to a taking of Plaintiffs’ property. Whether Plaintiffs’ procedural due process
rights were violated in connection with the permitting process is intertwined with
whether Plaintiffs’ property was “taken without just compensation.” 17 As the Southern
District of Mississippi held in Willis v. City of Hattiesburg, “[t]he gravamen of Plaintiff’s
procedural due process claim is the taking, and this procedural due process claim is not
separately cognizable from Plaintiffs’ charge that they were denied full compensation for
the alleged taking.”18 “[W]here the injury that resulted from an alleged procedural due
process violation is merely a taking without just compensation, we cannot know whether
the plaintiff suffered any injury until the takings claim has been adjudicated.” 19 In this
case, the Court finds Plaintiffs’ procedural due process claims are “ancillary to” and “arise
from” their takings claims.
Id. (internal quotation marks omitted) (citing Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1045
n.6 (5th Cir. 1998)).
16 Id.
17 See, e.g., Rosedale, 641 F.3d at 91 (“The reason is that, where the injury that resulted from an alleged
procedural due process violation is merely a taking without just compensation, we cannot know whether
the plaintiff suffered any injury until the takings claim has been adjudicated.”); Steward, 537 F. App’x at
555 (quoting John Corp., 214 F.3d at 585) (“We held that ‘it will only be when a court may assess the takings
claim that it will also be able to examine whether [the owner of the demolished property was] afforded less
procedure than is constitutionally required.’”).
18 Willis, 2014 WL 11515567, at *3 (citing Bowlby, 681 F.3d at 223–24; Hidden Oaks, 138 F.3d at 1045 n.6).
19 Rosedale, 641 F.3d at 91.
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Furthermore, courts in the Fifth Circuit have held, “[w]ith respect to procedural
due process, while as a general rule an aggrieved person need not exhaust state remedies
before filing suit in federal court to vindicate a state deprivation of constitutional rights,
an exception to this rule applies when the alleged constitutional deprivation is the denial
of procedural due process.”20 If a plaintiff does not avail himself or herself of the available
state procedures, the plaintiff is foreclosed from pursuing his or her procedural due
process claim in federal court.21 The Court concluded above that the Plaintiffs failed to
pursue an inverse condemnation action in state court, which the Plaintiffs do not dispute.
This serves as an additional justification for the Court’s conclusion that Plaintiffs’
procedural due process claims are not ripe.
The Court finds that Plaintiffs’ procedural due process claims—i.e., that St. John
the Baptist Parish refused to accept their applications for special-use permits and passed
an ex post facto law without an opportunity to be heard—are not ripe and are dismissed
without prejudice.
IV.
SUBSTANTIVE DUE PROCESS & EQUAL PROTECTION CLAIMS
“An unripe takings claim does not necessarily subsume substantive due process
and equal protection claims alleging deprivations in property.”22 “The Fifth Circuit has
rejected a blanket rule that the Takings Clause subsumes any substantive due process
claims.”23
Pannell v. City of Columbus, Miss., No. 1:13CV202-NBB-DAS, 2014 WL 4843955, at *3 (N.D. Miss. Sept.
29, 2014) (citing Rathjen, 878 F.2d at 839–40 (“[N]o denial of procedural due process occurs where a
person has failed to utilize the state procedures available to him.”)). See also Worley Brown, LLC v. Miss.
Dep’t of Archives and History, No. 3:10cv394 HTW-LRA, 2012 WL 1424398, at *14 (S.D. Miss. Apr. 24,
2012).
21 See supra note 20; see also Willis, 2014 WL 11515567, at *3
22 Bienville Quarters, 2010 WL 2653317, at *3 (citing John Corp., 214 F.3d at 584; Simi Inv. Co. v. Harris
Cnty., 236 F.3d 240, 248–49 (5th Cir. 2000)).
23 TexCom, 2014 WL 2931943, at *4 (citing John Corp., 214 F.3d at 583).
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The Middle District of Louisiana in Bienville Quarters, LLC v. East Feliciana
Parish Police Jury aptly summarized the inquiry that courts conduct to determine if a
plaintiff’s substantive due process and equal protection claims are subsumed by an unripe
takings claim:
[I]n cases such as this, where plaintiff brings substantive due process claims
and equal protection claims in connection with a takings claim, the Court
looks to determine the extent to which the plaintiff’s substantive due
process and equal protection claims rest on protections that are also
afforded by the Takings Clause. If the substantive due process and equal
protection claims rest solely on rights afforded to them by the Takings
Clause and are brought in conjunction with an unripe takings claim, then
such claims are consequently unripe. If, however, such claims assert rights
not afforded to them by the Takings Clause, or, in other words, if they find
their protection rooted in, for example, the Due Process Clause, then they
are unaffected by the determination that a joined takings claim is unripe.24
In this case, Plaintiffs allege in their Complaint that “[t]he zoning ordinances and
regulations in effect are being interpreted and enforced against plaintiffs in a manner that
is arbitrary and capricious and in a manner differently than interpreted and enforced
against other citizens in the same or similar circumstances within the Parish.”25 The
Plaintiffs also allege that “the actions of the defendants deprive [them] of due process of
law and equal protection of the law guaranteed by the United States and Louisiana
Constitutions.”26
Other courts have found that substantive due process and equal protection claims
are not subsumed by an unripe takings claim. For example, in Bienville Quarters, the
Bienville Quarters, 2010 WL 2653317, at *3 (citing John Corp., 214 F.3d at 584–85).
R. Doc. 1 at 8. The Fifth Circuit has held that the “main purpose of the Equal Protection Clause is to
prevent official conduct that discriminates on the basis of race.” Bowlby, 681 F.3d at 227. “To state a claim
of racial discrimination under the Equal Protection Clause and section 1983, the plaintiff must allege and
prove that [he or she] received treatment different from that received by similarly situated individuals and
that the unequal treatment stemmed from a discriminatory animus.” Id. (citing Priester v. Lowndes Cnty.,
354 F.3d 414, 424 (5th Cir. 2004)). Plaintiffs do not allege discrimination on the basis of race, nor do
Plaintiffs otherwise allege that they were similarly situated to other individuals and experienced unequal
treatment as compared to those individuals, motivated by discriminatory animus. See R. Doc. 1.
26 R. Doc. 1 at 8.
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plaintiff alleged that certain portions of a local zoning ordinance were “arbitrary and
capricious.” The court concluded that such a claim “invoke[d] protection of the Due
Process Clause, not the Takings Clause, because it asserts rights not protected by the
Takings Clause.”27 Also in Bienville Quarters, the plaintiff alleged the zoning ordinance
“violate[d] equal protection and is an improper exercise of police powers as there is no
rational justification for the differential treatment in exercise of that power.” 28 The court
concluded that “the right to be free from unequal treatment under the law, granted by the
Equal Protection Clause, is not protected by the Takings Clause.”29 For these reasons, the
Bienville Quarters court found that “both plaintiff’s substantive due process and equal
protection claims are ripe for review because they are not subsumed by plaintiff’s unripe
takings claim.”30
A similar conclusion was reached by the Southern District of Texas in TexCom Gulf
Disposal, LLC v. Montgomery County, Texas.31 The court in TexCom noted the plaintiff’s
due process claims were “based on allegations that the County persistently and arbitrarily
denied its permit applications without due process.”32 The court also noted the plaintiff’s
equal protection claims were based on the “right not to be treated differently than others
similarly situated.”33 As a result, the court concluded that “[t]hese claims are not
subsumed in a takings claim because they are not based on rights protected by the Takings
Clause—the right to just compensation when a governmental entity takes one’s
Bienville Quarters, 2010 WL 2653317, at *3 (citing FM Props. Operating Co. v. City of Austin, 93 F.3d
167, 174 (5th Cir. 1996) (discussing arbitrary and capricious measures that violate substantive due process
without discussing takings issues)).
28 Id.
29 Id.
30 Id.
31 No. H-13-2789, 2014 WL 2931943 (S.D. Tex. June 27, 2014).
32 Id. at *4.
33 Id.
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property.”34 The TexCom court also noted that the plaintiff was not seeking, “as damages,
under these federal claims, the value of its entire property or business.” 35 Instead, as the
court noted, the plaintiff was claiming “it was denied due process and equal protection
rights that exist independently from its property rights, and for which it seeks to recover
damages that are different from the value of the property, such as commercial
expectations, costs incurred in seeking to obtain the permits, and punitive damages.”36
The TexCom court relied on the fact that the plaintiff sought such damages in finding that
the plaintiff’s substantive due process and equal protection claims were not merely
“mischaracterized takings claims.”37
In this case, Plaintiffs have made allegations, though arguably bare-bones, similar
to those in Bienville Quarters and TexCom. For example, with respect to their substantive
due process claims, Plaintiffs allege the “zoning ordinances and regulations in effect are
being interpreted and enforced against plaintiffs in a manner that is arbitrary and
capricious.”38 With respect to their equal protection claims, Plaintiffs allege the “zoning
ordinances and regulations in effect are being interpreted and enforced against plaintiffs
. . . in a manner differently than interpreted and enforced against other citizens in the
same or similar circumstances within the Parish.”39 Also, as in TexCom, the Court notes
the Plaintiffs are not seeking as damages only the full value of their business and property
but, instead, are also seeking damages such as commercial expectations, costs incurred in
seeking to obtain permits, and punitive damages.40 Because Plaintiffs’ allegations appear
Id. (citing Bowlby, 681 F.3d at 222).
Id. at *5.
36 Id. (citing Bowlby, 681 F.3d at 225).
37 Id.
38 R. Doc. 1 at 8.
39 R. Doc. 1 at 8.
40 See R. Doc. 1 at 9 (“For a money judgment for all lost profits and/or earnings caused by the acts and
omissions of the defendants”; “For a money judgment for any and all consequential and incidental damages
34
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to concern rights and privileges not protected by the Takings Clause, the Court finds
Plaintiffs’ substantive due process and equal protection claims are not subsumed by their
unripe takings claims. Therefore, the Court finds Plaintiffs’ substantive due process and
equal protection claims are properly before the Court and will not be dismissed as unripe
at this time.
Although the Court concludes, based on the allegations in the Complaint, that
Plaintiffs’ substantive due process and equal protection claims are ripe, this conclusion is
not without reservation. The Fifth Circuit has cautioned, for example, that “substantive
due process is not the appropriate avenue of relief for most landowner complaints, and
that, with rare exceptions, takings clause jurisprudence cannot be circumvented by artful
pleading of substantive due process claims.”41 A substantive due process claim can be
recognized alongside a takings claim only when the takings analysis does not exhaust a
plaintiff’s constitutional claims.42 “In the context of land use regulation, that is, in
situations where the governmental decision impinges upon a landowner’s use and
enjoyment of property, a land-owning plaintiff states a substantive due process claim
where he or she alleges that the decision limiting the intended land use was arbitrary and
capricious.”43 The Fifth Circuit has cautioned that “only the most egregious official
conduct can be said to be arbitrary in the constitutional sense.” 44 “The question is only
whether a rational relationship exists between the policy and a conceivable legitimate
incurred because of the acts and omissions of the defendants”; and “For a money judgment for exemplary
or punitive damages because of the defendants’ willful and wanton violation of plaintiff’s civil rights”).
41 Severance v. Patterson, 566 F.3d 490, 501 (5th Cir. 2009) (citing Simi Inv. Co., 236 F.3d at 240). See
also Pannell, 2014 WL 4843955, at *4.
42 Simi Inv. Co., 236 F.3d at 248.
43 Id. at 249 (citing DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d 592, 601 (3d Cir. 1995)).
44 Worley Brown, 2012 WL 1424398, at *15 (internal quotations omitted) (quoting McClendon v. City of
Columbia, 305 F.3d 314, 326 (5th Cir. 2002) (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846
(1998))).
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objective. If the question is at least debatable, there is no substantive due process
violation.”45
In this case, although Plaintiffs allege that the “zoning ordinances and regulations
in effect are being interpreted and enforced against plaintiffs in a manner that is arbitrary
and capricious,” this allegation is largely unsupported by factual assertions. “A general
allegation that a state entity has ‘arbitrarily and capriciously’ interfered with a property
right . . . does not, in itself, state a substantive due process claim in addition to a takings
claim.”46 “If the substantive due process claim is not sufficiently independent, such a
claim is simply a takings claim under a substantive due process label.”47 Plaintiffs’
substantive due process and equal protection claims may be vulnerable to dismissal by
summary judgment. Alternatively, further development of the nature of Plaintiffs’
substantive due process and equal protection claims may support a motion to dismiss for
lack of jurisdiction based on ripeness. Nevertheless, based on the briefs presently before
the Court and the Plaintiffs’ Complaint, the Court finds Plaintiffs’ substantive due process
and equal protection claims to be ripe, for present purposes.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that the following claims are
DISMISSED WITHOUT PREJUDICE: (1) Plaintiffs’ claims under the Takings Clause
of the Fifth Amendment to the United States Constitution and Article 1, Section 4, of the
Louisiana Constitution, and (2) Plaintiffs’ procedural due process claims that St. John the
Baptist Parish refused to accept their applications for special-use permits and passed an
ex post facto law without an opportunity for them to be heard.
Id. (citing FM Props., 93 F.3d at 174).
Worley Brown, 2012 WL 1424398, at *15.
47 Willis, 2014 WL 11515567, at *4 (internal quotations omitted) (quoting Steward, 537 F. App’x at 556).
45
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To the extent Plaintiffs’ seek injunctive relief in this Court, those claims are also
DISMISSED WITHOUT PREJUDICE as unripe.48
Plaintiffs’ (1) substantive due process claims, and (2) equal protection claims are
not dismissed as unripe. Defendants may address concerns regarding these claims for
relief in dispositive motion practice.
New Orleans, Louisiana, this 2nd day of August, 2016.
______
_____________ __________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
“The state procedural requirement is applicable to both injunctive and declaratory relief on takings
claims.” Ash Grove Tex., L.P. v. City of Dallas, No. 3:08-CV-2114-O, 2009 WL 3270821, at *11 (N.D. Tex.
Oct. 9, 2009) (citing Williamson, 473 U.S. at 195; Severance, 566 F.3d at 497).
48
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