Lucien v. Jones et al

Filing 12

ORDER & REASONS: Re 6 Motion to Dismiss; ORDERED that Defendants' Motion to Dismiss (Rec. Doc. 6.) is GRANTED IN PART and DENIED IN PART. Plaintiff's claims under the First and Fourteenth Amendment, 42 U.S.C. 1983, 42 U.S.C. 1985(2) are hereby DISMISSED WITH PREJUDICE. FURTHER ORDERED that Plaintiff's claim under the Seventh Amendment is hereby DISMISSED AS MOOT. FURTHER ORDERED that Plaintiff's requests for a declaratory judgment under 28 U.S.C. 2201 and for a temp orary restraining order are hereby DENIED. FURTHER ORDERED that Plaintiff's remaining state law claims are hereby DISMISSED WITHOUT PREJUDICE. FURTHER ORDERED that Defendants' request attorney's fees is hereby DENIED. Signed by Judge Carl Barbier on 9/13/16. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ROBERT LUCIEN, SR.

CIVIL ACTION

VERSUS

NO: 16-9591

DERRICK JONES, SR., ET
AL.

SECTION: “J”(1)

ORDER & REASONS
Before the Court is Defendants’ 12(b)(1) and 12(b)(6) Motion
to Dismiss (Rec. Doc. 6.) Plaintiff did not file an opposition to
Defendants’ motion, but instead was granted leave to file an
Amended Complaint. (Rec. Docs. 10, 11.) Having considered the
motion and legal memorandum, the record, and the applicable law,
the Court finds that Defendants’ motion should be GRANTED IN PART
and DENIED IN PART.
FACTS AND PROCEDURAL BACKGROUND
On

June

Defendants

10,

2016,

alleging

Plaintiff

violations

of

filed

this

the

First,

action

against

Seventh,

and

Fourteenth Amendment of the United States Constitution, 42 U.S.C.
§ 1983, several provisions of the Louisiana Civil Code, and seeking
a declaratory judgment under 28 U.S.C. § 2201. (Rec. Doc. 1.)
Plaintiff contends that he was the employer of the now deceased
Quiana Jones. (Rec. Doc. 1 at 2.) Plaintiff argues that while Ms.
Jones was employed by Plaintiff she “embezzled $200,000.00 from
him personally and his companies.” Id. Plaintiff argues that he

entered an agreement with Defendant, Derrick Jones, Sr., 1 who
allegedly agreed to repay the debt after Ms. Jones passed away.
Id. at 3. Plaintiff argues that Derrick Jones has refused to repay
the alleged debt. Id. Further, Plaintiff makes several averments
that Defendants acted in concert to deprive Plaintiff of the money
he is allegedly owed. Plaintiff even alleges that Judge Paulette
Irons was improperly influenced by Defendants 2 to deprive Plaintiff
of the money he is allegedly owed. See id. On August 17, 2016,
Plaintiff amended his complaint to include claims under 42 U.S.C.
§ 1985(2), Louisiana Civil Code Articles 1906 and 2320, “Abuse of
Rights”, “Intentional Fraudulent Misrepresentation”, conversion,
continuing tort, and violations of the Professional Code of Conduct
and Ethics Rules. (Rec. Doc. 11.)
On July 21, 2016, Defendants filed a Motion to Dismiss for
Failure

to

State

a

Claim

and

for

Lack

of

Subject

Matter

Jurisdiction. (Rec. Doc. 6.) In short, Defendants argue this Court
lacks subject matter jurisdiction, because there is no diversity
jurisdiction and Plaintiff’s claims do not arise under federal
law. (Rec. Doc. 6-1.) Defendants also argue that Plaintiff’s
Original

and

Amended

Complaint,

although

referencing

alleged

violations of federal law, fail to state a claim upon which relief

1

Derrick Jones, Sr. is the administrator of the estate of Quiana Jones.
The Defendants in this lawsuit include: Derrick Jones, Sr., John M. Blanchard,
personally, the Law Office of John M. Blanchard, in its official capacity,
Charles R. Jones, and the Dugan Law Firm.
2

2

can be granted. See id. Defendants also ask this Court to award
attorney’s fees for Plaintiff filing this allegedly frivolous
lawsuit. (Rec. Doc. 6-1 at 11-12.) Defendants’ motion is now before
the Court on the briefs and without oral argument.
LEGAL STANDARD
I.

Motion to Dismiss for Lack of Subject Matter Jurisdiction
A Rule 12(b)(1) motion challenges the subject matter of a

federal district court. “A case is properly dismissed for lack of
subject matter jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case.” Home Builders Ass’n
of Miss, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.
1998). In ruling on a 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). The proponent of
federal court jurisdiction—in this case, the Plaintiff—bears the
burden of establishing subject matter jurisdiction. D’Aquin v.
Kramer, No. 15-2524, 2015 WL 5682659, at *1 (E.D. La. Sept. 25,
2015) (citing Physicians Hosps. of Am. v. Sebelius, 691 F.3d 649,
652 (5th Cir. 2012)). Federal question claims can be dismissed for
lack of subject matter jurisdiction only when the claim is not
even “colorable,” i.e., it is wholly insubstantial and frivolous
3

or is immaterial and made solely for the purposes of obtaining
jurisdiction. Bell v. Hood, 327 U.S. 67, 682-83.
II.

Motion to Dismiss for Failure to State a Claim
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff

must plead enough facts “to state a claim to relief that is
plausible on its face.” Aschcroft v. Iqbal, 556 U.S. 662, 667
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)). A claim is plausible on its face when the pleaded facts
allow

the

court

to

“draw

the

reasonable

inference

that

the

defendant is liable for the misconduct alleged.” Id. A court must
accept the complaint’s factual allegations as true and must “draw
all reasonable inferences in plaintiff’s favor.” Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009)). To be legally
sufficient,

a

complaint

must

establish

more

than

a

“sheer

possibility” that the plaintiff's claims are true. Id. “A pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action’” will not suffice. Id. at 678
(quoting Twombly, 550 U.S. at 555). Rather, the complaint must
contain

enough

factual

allegations

to

raise

a

reasonable

expectation that discovery will reveal evidence of each element of
the plaintiffs' claim. Lormand, 565 F.3d at 255-57.

4

DISCUSSION
I.

Defendants’ Motion to Dismiss for Lack of Subject Matter
Jurisdiction
The

Court

shall

first

address

Defendants’

jurisdictional

challenge. See D’Aquin, 2015 WL 5682659, at *2 (citing Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001) (“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.”) Plaintiff has not
carried its burden to distinctly and affirmatively allege the
citizenship

of

the

parties.

(Rec.

Doc.

1,

11);

see

Hale

v.

M.J.J.K., LLC, No. 12-1515, 2013 WL 6287823, at *1 (E.D. La. Dec.
4, 2013). Thus, for this Court to have jurisdiction, Plaintiff’s
claims must arise under federal law. See id. Plaintiff alleges
that Defendants have violated his First, Seventh, and Fourteenth
Amendment rights, and have acted in violation of 42 U.S.C. § 1983
and 42 U.S.C. § 1985. See Rec. Doc. 1, 11. Accordingly, such
alleged violations grant this Court subject matter jurisdiction
over this dispute. See D’Aquin, 2015 WL 5682659, at *2 (court
determined that it had subject matter jurisdiction where pro se
litigant alleged violations under 42 U.S.C. § 1983).
II.

Defendants’ Motion to Dismiss for Failure to State a Claim
Defendants also argue that Plaintiff has not pled sufficient

facts to state a claim to relief that is plausible on its face.
5

(Rec. Doc. 6-1.) Accordingly, Plaintiff’s complaint must “contain
sufficient factual matter, accepted as true to state a claim to
relief that is plausible on its face. See Ashcroft, 556 U.S. at
667. The Court shall address each of Plaintiff’s claims in turn.
1.

First Amendment to the United States Constitution

Plaintiff claims that “he is entitled to petition this court
for

redress

of

his

grievances

as

[he

was]

denied

access

to

prosecute his claims in state court proceedings.” (Rec. Doc. 1 at
5.)

Liberally construed, it appears that Plaintiff is arguing

that he has been denied access to the courts in violation of the
First Amendment. Id.
“The right of access to the courts is basic to our system of
government, and it is well established . . . that it is one of the
fundamental

rights

protected

by

the

Constitution.”

Ryland

v.

Shapiro, 708 F.2d 967, 971 (5th Cir. 1983). The right of access to
the courts must be “adequate, effective, and meaningful.” Id.
(quoting

Bounds

v.

Smith,

430

U.S.

817,

822

(1977)).

The

constitutional right of access to the courts is a facilitative
right “designed to ensure that a citizen has the opportunity to
exercise his or her legal rights to present a cognizable claim to
the appropriate court and, if that claim is meritorious, to have
the court make a determination to that effect and order the
appropriate relief.” Foster v. City of Lake Jackson, 28 F.3d 425,
430 (5th Cir. 1994) (quoting Crowder v. Sinyard, 884 F.2d 804, 814
6

(5th Cir. 1989)). The right of access to the courts is implicated
“where

the

ability

to

file

suit

was

delayed,

or

blocked

altogether.” Id. In other words, the right of access to the courts
is restricted to a facilitative right to bring a suit without
official impediment. Id.; see also Hale v. Townley, 45 F.3d 914,
920 (5th Cir. 1995).
Plaintiff has failed to plead a plausible claim under the
First Amendment. Plaintiff has not argued that he was denied
“adequate,

effective,

and

meaningful”

access

to

the

courts.

Further, Plaintiff has not alleged that his ability to file suit
was delayed or impeded. In fact, Plaintiff has been granted access
to the courts through his complaint in federal court, (Rec. Doc.
1), and petition in Louisiana state court. See Succession of Quiana
Jones, No. 2014-0642 (La. App. 4th Cir. 11/12/14); 154 So.3d 624
(noting that summary judgment was initially granted in favor of
Mr. Lucien, but reversed on appeal). Accordingly, Plaintiff’s
First Amendment claim is dismissed.
2.

Seventh Amendment to the United States Constitution

The Seventh Amendment protects a litigant’s right to a jury
trial in certain cases. A jury trial has been demanded in this
case. To the extent Plaintiff asserts a claim under the Seventh
Amendment, the claim is moot. See Duncan v. U.S. Servs. Auto. Ass’n
Ins., No. 14-2989, 2016 WL 3952091, at *8 (E.D. La. July 22, 2016)

7

(finding claim moot where plaintiff alleged violation of Seventh
Amendment but asked for a jury trial in complaint).
3.

Fourteenth Amendment to the United States Constitution

The Supreme Court has confirmed that the Fourteenth Amendment
applies only to the acts of states, not to the conduct of private
persons. Rendell-Baker v. Kohn, 457 U.S. 830 (1982). No state or
federal agency or actor is a party to this action. Further, even
if the appropriate persons or entities were a party to this action,
Plaintiff

has

not

alleged

any

conduct

that

may

be

fairly

characterized as “state action.” See Lugar v. Edmonson Oil Co.,
457 U.S. 922, 924 (1982). Accordingly, Plaintiff’s Fourteenth
Amendment claim is dismissed. See United States v. Goodwill Indus.,
No.

90-0643,

1990

WL

98868,

at

*1

(E.D.

La.

July

6,

1990)

(dismissing plaintiff’s Fourteenth Amendment claim where no state
agency

was

a

party

to

the

suit

and

no

actions

could

be

characterized as “state actions”); Duncan, 2016 WL 3952091, at *6
(dismissing

plaintiff’s

Fourteenth

Amendment

claim

because

no

defendants were state or federal actors).
4.

42 U.S.C. § 1983

Plaintiff’s Complaint states that this action is brought
pursuant to, inter alia, 42 U.S.C. § 1983. (Rec. Doc. 1 at 2.) To
state a claim under Section 1983, a plaintiff must show “(1)
deprivation of a right, privilege or immunity secured by the
federal laws or Constitution (2) by one acting under color of state
8

law.” Miss. Women's Med. Clinic v. McMillan, 866 F.2d 788, 791
(5th Cir. 1989); see also Barnes v. McQueen, No. 14-2636, 2016 WL
866710, at *3 (E.D. La. Mar. 7, 2016) (quoting Atteberry v. Nocona
Gen. Hosp., 430 F.3d 245, 252-53 (5th Cir. 2005)). Action taken
under color of state law for purposes of Section 1983 requires a
defendant's use of power “possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the
authority of state law” and when the defendant is engaged in the
“performance of official duties.” United States v. Causey, 185
F.3d 407, 414, 415 (5th Cir. 1999). Plaintiff must also show that
the Defendants’ actions are “fairly attributable to the state.”
West v. Atkins, 487 U.S. 42, 49 (1988).
As explained above, no state agency nor state actor is a party
to this lawsuit. Further, there are no circumstances by which
Defendants to this suit could be considered a state actor. See
Leroy v. Blackwater, Inc., No. 06-4601, 2007 WL 1166053, at *2
(E.D. La April 17, 2007) (citing cases). While Plaintiff states
that Defendants operated under the color of the law, the Court
will

not

accept

such

a

conclusory

allegation

as

true.

See

Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th
Cir. 1993). Plaintiff’s 42 U.S.C. § 1983 claim is dismissed. See
id.;

see

also,

Duncan,

2016

WL

3952091,

at

*8

(dismissing

plaintiff’s 42 U.S.C. § 1983 claim because no defendants were state
or federal actors).
9

5.

42 U.S.C. § 1985(2)

Plaintiff attempts to argue that that Defendants civilly
conspired to deprive Plaintiff of his property in violation of 42
U.S.C. § 1985(2). (Rec. Doc. 1 at 6-7; Rec Doc. 11 at 2.)

42

U.S.C. § 1985(2) provides:
If two or more persons in any State or Territory conspire
to deter, by force, intimidation, or threat, any party
or witness in any court of the United States from
attending such court, or from testifying to any matter
pending therein, freely, fully, and truthfully, or to
injure such party or witness in his person or property
on account of his having so attended or testified, or to
influence the verdict, presentment, or indictment of any
grand or petit juror in any such court, or to injure
such juror in his person or property on account of any
verdict, presentment, or indictment lawfully assented to
by him, or of his being or having been such juror; or if
two or more persons conspire for the purpose of impeding,
hindering, obstructing, or defeating, in any manner, the
due course of justice in any State or Territory, with
intent to deny to any citizen the equal protection of
the laws, or to injure him or his property for lawfully
enforcing, or attempting to enforce, the right of any
person, or class of persons, to the equal protection of
the laws.
Thus, Section 1985(2) prohibits two categories of conspiracies:
(1) “conspiracies directed at the right of participation in federal
judicial proceedings,” and (2) “conspiracies to deny any citizen
equal protection of the laws or to injure a citizen for his efforts
to ensure the rights of others to equal protection.” Ard v.
Rushing, 597 F. App’x 213, 221 (5th Cir. 2014) (citing Montoya v.
FedEx Ground Package Sys., Inc., 614 F.3d 145, 149 (5th Cir. 2010);
Bryant v. Military Dep’t of Miss., 597 F.3d 678, 687 (5th Cir.
2010)). There must also be some racial, or class-based, invidiously
10

discriminatory animus behind the conspirators’ action. Bryant, 597
F.3d at 687 (citing Griffin v. Breckenridge, 403 U.S. 88, 102
(1971)).

“Section

1985(3)

prohibits

private

conspiracies

to

deprive persons of equal protection of the laws.” Duncan, 2016 WL
3952091, at *6 (citing Daigle v. Gulf States Utils. Co. v. Local
Union No. 2286, 794 F.2d 974, 978 (5th Cir. 1986)).
Plaintiff specifically alleges that he brings this claim
under 42 U.S.C. § 1985(2). Section 1985(2) is inapplicable in this
case, because Plaintiff makes no mention of any conspiracy directed
at participation in federal judicial proceedings. Plaintiff also
makes no mention of any conspiracy to deny any citizen equal
protection under the law. Further, Plaintiff has not alleged any
form of racial or discriminatory animus, which is required under
Section 1985(2). See Bryant, 597 F.3d at 687. To the extent that
Plaintiff sought to assert a claim under Section 1985(3), this
claim also fails because Plaintiff has not alleged any form of
racial or discriminatory animus. See Duncan, 2016 WL 3952091, at
*7 (dismissing Section 1985 claim where plaintiff failed to allege
that the defendants’ actions were motivated by race). Plaintiff
has no plausible claim under Section 1985; thus, Plaintiff’s
Section 1985 claim is dismissed. See id.
6.

28 U.S.C. § 2201

Plaintiff asks this Court to “declare judgment of the rights
of the parties to this litigation.” (Rec. Doc. 1 at 8). The
11

Declaratory Judgment Act, 28 U.S.C. § 2201, provides in pertinent
part:
In a case of actual controversy within its jurisdiction
. . . any court of the United States, upon the filing of
an appropriate pleading, may declare the rights and
other legal relations of any interested party seeking
such declaration, whether or not further relief is or
could be sought. Any such declaration shall have the
force and effect of a final judgment or decree and shall
be reviewable as such.
22 U.S.C. § 2201 does not create a substantive cause of action,
and

federal

courts

have

broad

discretion

to

grant

or

refuse

declaratory judgment. Edwards v. U.S. Bank Nat’l Assoc., No. 152535, 2016 WL 4574585, at *5 (W.D. La. June 28, 2016) (citing Lowe
v. Ingalis Shipbuilding, a Div. of Litton Sys., Inc., 723 F.2d
1173, 1179 (5th Cir. 1984); Torch, Inc. v. Leblanc, 947 F.2d 194,
194 (5th Cir. 1991)). The Fifth Circuit has explained that, when
considering a declaratory judgment action, a district court must
engage in a three-step inquiry to determine whether to decide or
dismiss a complaint for declaratory relief. Orix Credit All., Inc.
v. Wolfe, 212 F.3d 891, 895 (5th Cir. 2000).
Following Orix, to decide a declaratory action this Court is
required to determine: (1) whether the declaratory action is
justiciable; (2) whether this court has the authority to grant
declaratory relief; and (3) whether to exercise its discretion to
decide or dismiss the action. Sherwin-Williams Co. v. Holmes Cty.,
343 F.3d 383, 387 (5th Cir. 2003) (citing Orix, 212 F.3d at 895).
For a declaratory action to be justiciable it must seek to resolve
12

an “actual controversy” rather than an abstract or hypothetical
dispute. Id. Generally, an actual controversy exists when “a
substantial controversy of sufficient immediacy and reality exists
between parties having adverse legal interests.” Orix, 212 F.3d at
896. Because Plaintiff has not specified the rights or legal
relations he seeks declared, the Court is uncertain whether this
action

is

justiciable.

However,

assuming

that

the

action

is

justiciable and that this Court has the discretion to render a
declaratory

judgment,

the

Court

declines

to

exercise

its

discretion in this case. 3
The Fifth Circuit has identified the following non-exclusive
factors

to

consider

when

determining

whether

a

Court

should

exercise its discretion to consider the merits of the dispute:
(1) whether there is a pending state action in which all
of the matters in controversy may be fully litigated;
(2) whether the plaintiff filed suit in anticipation of
a lawsuit filed by the defendant;
(3) whether the plaintiff engaged in forum shopping in
bringing the suit;
(4) whether possible inequities in allowing the
declaratory plaintiff to gain precedence in time or to
change forums exist;
3

The Court is unable to determine what right or legal relation Plaintiff wants
this Court to declare. Plaintiff merely asks this Court to declare judgment of
the rights of the parties to the litigation. At least one other court faced
with a similar situation has denied to render a declaration where it was unable
to determine what rights the party sought declared. See Stuke v. Leonard,
Street, & Deinard, No. 11-141, 2011 WL 2491377, at *4 (D. Minn. May 10, 2011)
(“The Court cannot ascertain what rights [the plaintiff] seeks declared, and
therefore the motion should be denied.”) However, to ensure that this Court
does not abuse its discretion in denying Plaintiff’s request for declaratory
judgment, the Court shall analyze the Trejo factors. See Am. Bankers Life
Assurance Co. of Fla. v. Overton, 128 F. App’x 399 (5th Cir. 2005) (finding
district court abused its discretion when it failed to consider the Trejo
factors).

13

(5) whether the federal court is a convenient forum for
the parties and witnesses;
(6) whether retaining the lawsuit would serve the
purposes of judicial economy; and
(7) whether the federal court is being called on to
construe a state judicial decree involving the same
parties and entered by the court before whom the parallel
state suit between the same parties is pending.
Sherwin–Williams, 343 F.3d at 388 (citing St. Paul Ins. Co. v.
Trejo, 39 F.3d 585 (5th Cir. 1994)). Both parties admit that there
is a pending state court action. (Rec. Doc. 1 at 3; Rec. Doc. 6-1
at

3.) 4

Further,

it

appears

that

Plaintiff

engaged

in

forum

shopping by bringing this suit in this Court rather than in state
court, because he has already been sanctioned by Judge Paulette
Irons for raising several of the arguments he raised in his
Original and Amended Complaint. 5 (Rec. Doc. 1 at 6; Rec. Doc. 6-1
at 8.) Further, inequities may ensue if this Court exercised its
discretion. If this Court were to render a judgment in favor of
either party it may result in res judicata or issue preclusion in
the pending state court action. See Murray Law Firm v. Phipps
Anderson Deacon, LLP, No. 16-3675, 2016 WL 3656004, at *4 (citing
Ironshore Specialty Ins. Co. v. Tractor Supply Co., 624 F. App’x
159, 168 (5th Cir. 2015)). Thus, even if this Court has the

4

Plaintiff and Defendants make brief reference to pending state court
proceedings. Specifically, Plaintiff provides that there is currently a motion
for new trial pending in state court against the estate of Ms. Jones. (Rec.
Doc. 1 at 3.) Defendants also make brief reference to this pending action and
also state that several of Plaintiff’s claims are only state law claims which
have been fully litigated in state court. (Rec. Doc. 6-1 at 3.)
5 The imposition of sanctions was put on hold by Judge Irons, provided that
Plaintiff did not file additional frivolous pleadings.

14

authority to render a declaratory judgment it would abstain from
doing so under the facts and circumstances of this case.
7.

Temporary Restraining Order

Plaintiff’s prayer for relief asks this Court to issue a
temporary restraining order enjoining Derrick Jones, Sr. from
personally using and distributing “funds awarded regarding the
Estates of Quiana Jones.” (Rec. Doc. 1 at 8.) Rule 65 of the
Federal Rules of Civil Procedure governs the requirements for
issuance of a temporary restraining order. Fed. R. Civ. P. 65(b).
A temporary restraining order is an extraordinary remedy. Akrivis
Labs., LLC v. U.S. Dep’t of Health and Human Servs., No. 16-11656,
2016 WL 3476716, at *1 (E.D. La. June 27, 2016) (citing cases).
The

party

requesting

a

temporary

restraining

must,

through

specific facts in an affidavit or verified complaint, clearly show
that immediate and irreparable injury, loss, or damage will result
to the movant before the adverse party can be heard in opposition.
Fed. R. Civ. P. 65(b)(1)(A). A temporary restraining order may
only be granted if the movant establishes the following four
factors:
(1) A substantial likelihood of success on the merits;
(2) A substantial threat that failure to grant the
injunction will result in irreparable injury;
(3) That the threatened injury outweighs any damage that
the injunction may cause the opposing party; and
(4) That the injunction will not disserve the public
interest.

15

Akrivis, 2016 WL 3476716, at *1 (citing Allied Mktg. Grp., Inc. v.
CDL Mktg., Inc., 878 F.2d 806, 809 (5th Cir. 1989)).
To request a temporary restraining order pursuant to Rule 65,
Plaintiff was required to submit specific facts demonstrating
irreparable

injury,

loss,

or

damage

through

an

affidavit

or

verified complaint. Fed. R. Civ. P. (b)(1)(A). Plaintiff has failed
to

do

so.

(Rec.

Doc.

1,

11.)

However,

even

assuming

that

Plaintiff’s pro se complaint could be construed as a verified
complaint, the Court finds that Plaintiff has not carried its
burden of establishing the requisite elements necessary for the
issuance of a temporary restraining order. See Akrivis, 2016 WL
3476716,

at

*1.

While

Plaintiff

argues

that

such

relief

is

necessary to prevent “the exhaustion of assets of the estate,”
Plaintiff has not pled, nor proven, that there is a substantial
likelihood of success on the merits, that the threatened injury
outweighs any damage that the injunction may cause the opposing
party,

and

that

the

injunction

will

not

disserve

the

public

interest. See id. Further, Plaintiff has not proven that there is
a substantial threat that failure to grant the injunction will
result in irreparable injury, because he alleges only monetary
damages. See Johnson, 1999 WL 299017, at *5 (finding no irreparable
harm where harm was compensable in monetary damages); Petroplex
Int’l v. St. James Par., No. 15-140, 2016 WL 2594808, at *5 (E.D.
La. May 5, 2016) (finding no irreparable harm where harm was only
16

economic

in

nature).

Accordingly,

Plaintiff’s

request

for

a

temporary restraining order is denied.
8.

Plaintiff’s Remaining Claims

Plaintiff’s remaining claims all sound in state law. 6 When
federal

law

claims

in

an

action

based

on

federal

question

jurisdiction are eliminated and only state law claims remain, the
federal

court

should

not

continue

to

exercise

jurisdiction.

Bruneau v. Deposit Ins. Corp., 785 F.Supp. 585, 590 (E.D. La.
1992).

Federal

courts

may

relinquish

jurisdiction

by

either

dismissing the case without prejudice or in cases that have been
removed,

by

remanding

the

case

to

state

court.

Id.

(citing

Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343 (1988)). This case
was filed in federal court; thus the Court cannot remand a case
that was not initially removed. Accordingly, Plaintiff’s remaining
state law claims are dismissed without prejudice. 7
III.

Defendants’ Request for Attorney’s Fees
Defendants ask this Court to award them attorney’s fees for

Plaintiff’s “frivolous” complaint. (Rec. Doc. 6-1 at 11.) In the
court’s discretion, attorney’s fees may be awarded for frivolous

6

Defendants allege that many of these causes of action have been previously
dismissed in state court. However, Defendants have not argued that Plaintiff’s
claims should be dismissed under res judicata.
7 The following claims are dismissed without prejudice: Louisiana Civil Code
articles 1906, 1953, 2004, 2298, 2315, 2320, 3499, “Abuse of Process and
Professional Code of Conduct and Ethics 3.3, 7.1, and 8.4”, Negligent
Misinformation, Perjury, Breach of Agreement, “Abuse of Rights”, “Intentional
Fraudulent Misrepresentation”, Conversion, Continuing Tort, and any other
liberally construed state law causes of action Plaintiff may have.

17

lawsuits under 42 U.S.C. §§ 1983 or 1985 pursuant to 42 U.S.C. §
1988. 42 U.S.C. § 1988(b). A successful civil rights defendant may
recover attorney fees against the plaintiff only if the plaintiff's
action was “frivolous, unreasonable, or without foundation.” See
Dean v. Riser, 240 F.3d 505, 508 (5th Cir. 2001). A suit is
frivolous

if

it

is

“so

lacking

in

arguable

merit

as

to

be

groundless or without foundation.” Nance v. New Orleans and Baton
Rouge Steamship Pilots Ass’n, No. 03-3092, 2006 WL 2338193, at *7
(E.D. La. Aug. 8, 2006) (quoting Plemer v. Parsons-Gilbane, 713
F.2d 1127, 1140-41 (5th Cir. 1983)). While this standard does not
require a showing of bad faith on the part of plaintiff, district
courts should avoid “post hoc reasoning by concluding that because
a plaintiff did not ultimately prevail, his action must have been
unreasonable or without foundation.” Id. (quoting Christiansburg
Garment Co. v. EEOC, 434 U.S. 412 (1978)).

The factors important

to frivolity determinations are whether: (1) plaintiff established
a prima facie case, (2) the defendant offered to settle, and (3)
the district court dismissed the case or held a full-blown trial.
Id. (citing United States v. State of Miss., 921 F.2d 604, 609
(5th Cir. 1991)). Defendants argue that this Court should award
them attorney’s fees because Judge Paulette Irons has threatened
Plaintiff with sanctions for filing frivolous pleadings. (Rec.
Doc. 6-1, at 11-12.) While Plaintiff’s actions under federal law
were

ultimately

unsuccessful,

without
18

further

evidence

from

Defendants as to Plaintiff’s frivolity, this Court is unwilling to
award Defendants their attorney’s fees associated with the filing
of this motion. See Stipe v. Tregre, No. 15-2515, 2016 WL 1722245,
at *2 (E.D. La. April 29, 2016) (declining to award attorney’s
fees under 42 U.S.C. § 1988 where defendants did not present
sufficient evidence for such an award).

19

CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (Rec.
Doc. 6.) is GRANTED IN PART and DENIED IN PART. Plaintiff’s claims
under the First and Fourteenth Amendment, 42 U.S.C. § 1983, 42
U.S.C. § 1985(2) are hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s claim under the Seventh
Amendment is hereby DISMISSED AS MOOT.
IT

IS

FURTHER

ORDERED

that

Plaintiff’s

requests

for

a

declaratory judgment under 28 U.S.C. § 2201 and for a temporary
restraining order are hereby DENIED.
IT IS FURTHER ORDERED that Plaintiff’s remaining state law
claims are hereby DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Defendants’ request attorney’s
fees is hereby DENIED.
New Orleans, Louisiana this 13th day of September, 2016

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

20