Hughes III v. Johnson et al

Filing 57

ORDER AND REASONS denying 40 Motion to Alter Judgment; and denying 42 Motion to Amend/Correct. For the foregoing reasons, Justice Hughes' motion to alter or amend a judgment and motion for leave to file amended complaint are DENIED. Intervenors' motion to alter judgment, for relief from judgment, and for leave to amend complaint is also DENIED. Signed by Judge Sarah S. Vance on 4/3/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JEFFERSON D. HUGHES, III
ASSOCIATE JUSTICE OF THE
LOUISIANA SUPREME COURT
VERSUS

CIVIL ACTION

NO. 15-7165

BERNETTE J. JOHNSON, CHIEF
JUSTICE OF THE LOUISIANA
SUPREME COURT, ET AL.

SECTION “R” (2)

ORDER AND REASONS
Plaintiff Justice Jefferson D. Hughes of the Louisiana Supreme Court
moves to alter or amend1 this Court’s order2 dismissing his claims against
Chief Justice of the Louisiana Supreme Court Bernette J. Johnson and
Associate Justices Greg G. Guidry, Marcus R. Clark, and John L. Weimer
(collectively, Defendant Justices) on grounds of Eleventh Amendment
immunity. Intervening plaintiffs—Clean Water and Land PAC, LLC, Vincent
Charles Bundrick, and Cajun Pride, Inc.—move to alter or amend the same
order and the related judgment. 3 Justice Hughes and intervenors also move

R. Doc. 41.
R. Doc. 38.
3
R. Doc. 40. Robert Walton, Bonnie Walton, John Keith Lamm, and
Deborah Broussard Lamm, formerly intervening plaintiffs, have settled their
underlying state court claims and therefore do not join the motion. Id.
1

2

for leave to amend their respective complaints.4 For the following reasons,
plaintiffs’ motions are denied.

I.

BACKGROUND
Justice Hughes’ complaint centers around two cases that the Louisiana

Supreme Court declined to hear—Robert L. Walton, et al. v. Exxon Mobil
Corp., et al., No. 2015-C-0569 (La.), and Vincent Charles Bundrick, et al., v.
Anadarko Petroleum Corp., et al., No. 2015-C-0569 (La.). In both cases,
Justice Hughes was recused from ruling on plaintiffs’ applications for writs
of certiorari by order of his fellow Justices, pursuant to La. Code Civ. Proc.
art. 159.5 Justice Hughes alleges that, in voting to recuse him from Walton
and Bundrick, the four Defendant Justices violated Justice Hughes’ rights

4
5

R. Doc. 40; R. Doc. 42.
Article 159 provides:
When a written motion is filed to recuse a justice of the supreme
court, he may recuse himself or the motion shall be heard by the
other justices of the court.
When a justice of the supreme court recuses himself, or is
recused, the court may (1) have the cause argued before and
disposed of by the other justices, or (2) appoint a judge of a
district court or a court of appeal having the qualifications of a
justice of the supreme court to act for the recused justice in the
hearing and disposition of the cause.
2

under the First and Fourteenth Amendments to the U.S. Constitution.
Justice Hughes sues Defendant Justices in their official capacities. 6
Intervenors are Citizens for Clean Water and Land PAC, LLC and the
two plaintiffs in Bundrick: Vincent Charles Bundrick and Cajun Pride, Inc. 7
Clean Water, a political action committee, spent $487,000 supporting
Justice Hughes’ election to the Louisiana Supreme Court. 8 Intervenors’
allegations substantially mirror Justice Hughes’.
On October 20, 2016, this Court issued an Order and Reasons
dismissing plaintiffs’ claims on grounds of Eleventh Amendment immunity.9
In its order, the Court found that plaintiffs had failed to plausibly allege an
ongoing violation of federal law and that the exception to sovereign
immunity articulated in Ex parte Young, 209 U.S. 123 (1908), was therefore
inapplicable.10 Plaintiffs now move to alter or amend the dismissal order,
and assert that the Court misapplied the ongoing violation requirement. To
support their assertion that the alleged violation of federal lawn remains
ongoing, plaintiffs rely heavily on motions to recuse Justice Hughes filed in
two cases before the Louisiana Supreme Court: Agri-South Group, LLC, et

6
7
8
9
10

R. Doc. 1 at 1.
R. Doc. 28; R. Doc 40.
R. Doc. 1 at 10.
R. Doc. 38.
Id.
3

al. v. Exxon Mobil Corporation, et al., No. 2016-C-1856 (La.), and Global
Marketing Solutions v. Blue Mills Farms, Inc., et al., No. 2016-C-1963 (La.).
On January 31, 2017 the Louisiana Supreme Court denied both recusal
motions.11

II.

LEGAL STANDARD
A district court has considerable discretion to grant or deny a motion

under Rule 59(e). See Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355
(5th Cir. 1993). Reconsideration of an earlier order is an extraordinary
remedy, which should be granted sparingly. See Fields v. Pool Offshore, Inc.,
1998 WL 43217, *2 (E.D. La. Mar. 19, 1998); Bardwell v. George G. Sharp,
Inc., 1995 WL 517120, *1 (E.D. La. Aug. 30, 1995). The Court must “strike
the proper balance between the need for finality and the need to render a just
decision on the basis of all the facts.” Edward H. Bohlin Co., 6 F.3d at 355.
A moving party must satisfy at least one of the following criteria to prevail on
a Rule 59(e) motion: (1) the motion is necessary to correct a manifest error

R. Doc. 56 at 3-4. The Court may take judicial notice of these denials.
See Brown v. Lippard, 350 Fed. Appx. 879, 883 n.2 (5th Cir. 2009) (taking
judicial notice of state courts records); see also 11 Wright & Miller, 21B Fed.
Prac. & Proc. § 5106.4 (2d ed.) (“Judicial records are a source of ‘reasonably
indisputable accuracy’ when they record some judicial action such as
dismissing an action, granting a motion, or finding a fact.”).
4
11

of fact or law; (2) the movant presents newly discovered or previously
unavailable evidence; (3) the motion is necessary in order to prevent
manifest injustice; and (4) the motion is justified by an intervening change
in the controlling law. See Fidelity & Deposit Co. of Md. v. Omni Bank, 1999
WL 970526, *3 (E.D. La. Oct. 21, 1999); Fields, 1998 WL 43217 at *2; see also
Compass Tech., Inc. v. Tseng Labs., Inc., 71 F.3d 1125, 1130 (3d Cir. 1995)
(“Rule 59 and Rule 60(b)(2) share the same standard for granting relief on
the basis of newly discovered evidence.”).

III. DISCUSSION
Plaintiffs advance three arguments: (1) the Court misapplied the
ongoing violation requirement of the Ex parte Young exception; (2) new
evidence demonstrates that plaintiffs’ alleged constitutional injury is
ongoing; and (3) even if the Court’s denies plaintiffs’ motions to amend its
order, the Court should grant plaintiffs leave to amend their complaints. The
Court considers each argument in turn.
A. The Ongoing Violation Requirement Under Ex Parte
Young
Defendant Justices offered no written reasons for recusing Justice
Hughes in Walton and Bundrick. Nonetheless, plaintiffs’ complaints assert
that: (1) these recusals were based on Clean Water’s support for Justice
5

Hughes’ election campaign; and (2) that the recusals demonstrated that
Defendant Justices have instituted a policy of “preventing [a] judicial
candidate from hearing any suit involving persons, or their attorneys, who
contribute more than some undetermined amount to a political action
committee.” 12 In its order dismissing plaintiffs’ claims, the Court found that
plaintiffs’ well-pleaded facts could not support this latter assertion.
Plaintiffs’ failure to plausibly assert an ongoing violation was fatal to
their claims because the Young exception to Eleventh Amendment immunity
is limited to “cases in which a violation of federal law by a state official is
ongoing as opposed to cases in which federal law has been violated at one
time or over a period of time in the past . . . .” Papasan v. Allain, 478 U.S.
265, 277-78 (1986).

Plaintiffs cannot meet their burden under Young

through bare assertions that the alleged violation of federal law is ongoing.
See Cantu Servs., Inc. v. Roberie, 535 F. App’x 342, 345 (5th Cir. 2013)
(“Despite its facial pleading, the question remains whether Cantu alleged an
ongoing federal law violation. Cantu must establish that it has a
constitutionally protected interest that was continuing to be infringed by the
State officials.”). Accordingly, the Court found that Defendant Justices are

12

R. Doc. 1 at 13.
6

protected by Eleventh Amendment immunity, and this case must be
dismissed.
Plaintiffs attempt to undermine the Court’s conclusion by citing several
cases in which courts have found an ongoing violation under Young. But
plaintiffs’ cases are all factually dissimilar to the case before the Court and
therefore do not undermine the Court’s reasoning.
Several of the cases cited by plaintiffs concern challenges to written
statutes or policies that explicitly govern the future conduct of the
challenging party. See Verizon Maryland, Inc. v. Pub. Serv. Comm’n of
Maryland, 535 U.S. 635, 638 (2002) (challenge to written order of a state
utility commission requiring reciprocal compensation for telephone calls to
Internet Service Providers); AT&T Commc’ns v. BellSouth Telecom. Inc., 238
F.3d 636, 647 (5th Cir. 2001) (challenge to interconnection agreement
determination that bound “present and future relations between AT&T
Communications and BellSouth”); Summit Med. Assocs., P.C. v. Pryor, 180
F.3d 1326, 1339-40 (11th Cir. 1999) (constitutional challenge to statutes
imposing criminal and civil penalties on the performance of certain types of
abortion procedures, where appellants had admitted intent to enforce
statutes in the future); Hall v. Louisiana, 974 F. Supp. 2d 978, 990 (M.D. La.
2013) (challenging “Judicial Election Plan, as written, maintained, and
7

enforced, and presently implemented by the Secretary of State”) (internal
quotations and modification omitted).
These cases do not support an inference of an ongoing violation in this
case.

Plaintiffs assert the existence of an unwritten policy of recusing

Louisiana Supreme Court Justices based on the political activities of
attorneys and parties before the court. The only facts pled to support the
existence of such a policy are two decisions made on the same day to recuse
a single Justice from considering two related writ applications. Plaintiffs’
attempted analogy to cases involving written policies therefore fails.
The rest of plaintiffs’ supporting cases are similarly distinguishable. In
Vickery v. Jones, 100 F.3d 1334, 1335-36 (7th Cir. 1996), plaintiffs alleged
that defendants operated a long-running political patronage system to give
government jobs to political supporters. Another case, Ward v. City of
Norwalk, 640 F. App’x 462, 462 (6th Cir. 2016), concerned a putative class
action challenging defendants’ alleged policy of lengthening jail sentences to
offset court costs. In the Fifth Circuit’s decision in NiGen Biotech, L.L.C. v.
Paxton, 804 F.3d 389, 392 (5th Cir. 2015), plaintiff alleged that the Texas
Attorney General sent a letter to retailers stating that the labeling of
plaintiff’s product violated the Texas Deceptive Practices act. In response to
this threat of future enforcement, the retailers “pulled the products from
8

their shelves in Texas and other states, allegedly costing [plaintiff] millions
of dollars in lost revenue. Id. Finally, in Advocacy Center for Elderly &
Disabled v. Louisiana Department of Health & Hospitals, 731 F. Supp. 2d
583, 587-88 (E.D. La. 2010), plaintiffs alleged that at the time of suit dozens
of criminal defendants were being improperly held in prison. None of these
cases is factually similar to the case before the Court. Accordingly, they do
not support a finding that the Court’s order commits a manifest error of fact
or law.
B. New Evidence
As noted, the Court found that plaintiffs’ well-pleaded factual
allegations did not give rise to a plausible inference that the alleged
constitutional deprivations suffered by plaintiffs were ongoing.

New

evidence supports rather than undermines the Court’s skepticism. Plaintiffs’
motions to alter or amend rely heavily on motions to recuse Justice Hughes
filed by defendants in Agri-South Group and Global Marketing Solutions.
Justice Hughes describes these motions as “citing the exact same reasons as
the [recusal] motions in Walton and Bundrick.”13 Intervenors echo this

13

R. Doc. 40-2 at 5.
9

sentiment, and describe the motions as “based specifically on the recusal
motions in Walton and Bundrick.”14
The Louisiana Supreme Court has since denied both motions. 15 These
denials undermine plaintiffs’ argument that the Defendant Justices have
instituted an ongoing policy of forcing recusals based on political activity.
Accordingly, plaintiffs’ new evidence does not provide a basis for altering or
amending the Court’s order.
C. Leave To Amend Complaint
Finally, Justice Hughes and intervenors move for leave to file an
amended complaint. Plaintiffs have filed proposed amendments with the
Court. 16 Because the Court finds that the proposed amendments are futile,
leave to amend is denied.
Although leave to amend “shall be freely given when justice so
requires,” it “is by no means automatic,” and the decision “lies within the
sound discretion of the district court.” Parish v. Frazier, 195 F.3d 761, 763
(5th Cir. 1999) (quoting Little v. Liquid Air. Corp., 952 F.2d 841, 845-46 (5th

R. Doc. 41-1 at 8.
R. Doc. 56 at 3-4. In their replies, plaintiffs also raise a motion to
recuse filed in Stephen Trahan, et al. v. BP America Production Company,
et al., No. 2017-C-22 (La.). See R. Doc. 54; R. Doc. 55. This motion was
also denied. R. Doc. 56 at 5.
16
R. Doc. 40-1, R. Doc. 42-1.
10
14
15

Cir. 1992)). A district court “acts within its discretion in denying leave to
amend where the proposed amendment would be futile because it could not
survive a motion to dismiss.” Rio Grande Royalty Co. v. Energy Transfer
Partners, L.P., 620 F.3d 465, 468 (5th Cir. 2010) (quoting Briggs v.
Mississippi, 331 F.3d 499, 508 (5th Cir. 2003)); see also Vaupel v. United
States, 491 F. App’x 869, 874 (10th Cir. 2012) (affirming district court’s
refusal to permit amendment on grounds of futility where amended claims
would be barred by sovereign immunity).
Federal Rule of Civil Procedure 12(b)(1) requires dismissal of an action
if the court lacks jurisdiction over the subject matter of the plaintiff’s claim.
Motions submitted under Rule 12(b)(1) allow a party to challenge the court’s
subject matter jurisdiction based upon the allegations on the face of the
complaint. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.
1996); see also Lopez v. City of Dallas, Tex., No. 03-2223, 2006 WL
1450420, at *2 (N.D. Tex. May 24, 2006). In ruling on a Rule 12(b)(1) motion
to dismiss, the court may rely on (1) the complaint alone, presuming the
allegations to be true; (2) the complaint supplemented by undisputed facts;
or (3) the complaint supplemented by undisputed facts and by the court’s
resolution of disputed facts. Den Norske Stats Oljeselskap As v. HeereMac
Vof, 241 F.3d 420, 424 (5th Cir. 2001); see also Barrera-Montenegro, 74
11

F.3d at 659. The plaintiff bears the burden of demonstrating that subject
matter jurisdiction exists. See Paterson v. Weinberger, 644 F.2d 521, 523
(5th Cir. 1981).
Plaintiffs propose to amend their complaints by adding factual
allegations concerning the motions to recuse Justice Hughes from AgriSouth Group and Global Marketing Solutions. Because, as described above,
these motions were denied by the Louisiana Supreme Court, they undermine
rather than support plaintiffs’ argument that any constitutional violation is
ongoing. Accordingly, the Court finds that the proposed amendments are
futile and plaintiffs’ motions to amend are denied.

IV.

CONCLUSION

For the foregoing reasons, Justice Hughes’ motion to alter or amend a
judgment and motion for leave to file amended complaint are DENIED.
Intervenors’ motion to alter judgment, for relief from judgment, and for
leave to amend complaint is also DENIED.

3rd
New Orleans, Louisiana, this _____ day of April, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
12