Archbold-Garrett v. New Orleans City, et al

Filing 20

ORDER AND REASONS GRANTING 14 Motion to Dismiss Pursuant to Rule 12(b)(1) as set forth in document. Signed by Judge Ivan L.R. Lemelle on 7/24/2017. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LOURDES T. ARCHBOLD-GARRETT
DAVID L. GARRETT

CIVIL ACTION

VERSUS

NO. 16-15857

NEW ORLEANS CITY
METRO/DURR GROUP

SECTION “B”(2)
ORDER AND REASONS

I.

NATURE OF MOTION AND RELIEF SOUGHT
Before this Court are Defendant City of New Orleans’ (“City”)

“Motion to Dismiss Pursuant to Rule 12(b)(1)”, (Rec. Doc. 14), and
Plaintiffs’ “Opposition to the Defendant City of New Orleans’
Motion to Dismiss Pursuant to Rules 12(b)(1) and (6)” (Rec Doc.
19). For the reasons that follow,
IT IS ORDERED that Defendant’s Motion to Dismiss IS GRANTED.
II.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On October 28, 2016, Plaintiffs filed the instant case against

Defendants City of New Orleans and Metro/Durr Group, alleging that
they are entitled to relief pursuant to 42 U.S.C. § 1983 for the
City’s alleged denial of due process and just compensation in
violation of the Fourth, Fifth, and Fourteenth Amendments. (Rec.
Doc. 2 at 1). Plaintiffs invoke federal question subject matter
jurisdiction pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343(a)(3),
and 28 U.S.C. § 1367. Id. Plaintiffs allege that the City violated
the

requirements

of

due

process
1

and

just

compensation

by

demolishing Plaintiffs’ blighted structure at 7729 I-10 Service
Road in New Orleans without notifying Plaintiffs prior to the
demolition. Id. at 2-3.
According

to

their

complaint,

Plaintiffs

purchased

the

blighted property from the City on October 2, 2015. Id. at 3.
Following this sale, the City demolished the structures on the
property

on

January

27,

2016

and

subsequently

instituted

proceedings against Plaintiffs seeking to recover the cost of the
demolition on April 16, 2016. Id.
III. PARTIES’ CONTENTIONS
On May 19, 2017, the City filed the instant “Motion to Dismiss
Pursuant to Rule 12(b)(1).” (Rec. Doc. 14). The City requests that
this court dismiss all of Plaintiffs’ claims because Plaintiffs
failed to seek compensation in state court, rendering their claims
unripe for review and leaving this Court without subject matter
jurisdiction. Id. at 1.
The City first asserts that this Court lacks subject matter
jurisdiction over Plaintiffs’ takings claim because Plaintiffs
failed to file an inverse condemnation suit in state court prior
to this action, and thus the claim is unripe for review. (Rec.
Doc. 14-1 at 3-4). Additionally, the City asserts that this Court
lacks subject matter jurisdiction over Plaintiffs’ procedural due
process claim because Plaintiffs have alleged no separate injury
from their takings claim. Furthermore, Defendant argues that a due
2

process claim related to a takings claim must first be resolved
according to state court procedures to be ripe. Id. at 4-5.
Finally, the City asserts that this Court lacks jurisdiction over
Plaintiffs’ Fourth Amendment claim because resolution of the claim
requires further factual development of Plaintiffs’ takings claim
and is thus unripe. Id. at 5-6.
Plaintiffs contend that they did attempt resolution of their
claim through letters to the City but that the City failed to
respond. (Rec. Doc. 19 at 1-3). Plaintiffs attempt to differentiate
their case from others that found takings claims to be unripe
because they were not first redressed in state court by arguing
that the demolition of Plaintiffs’ structure was in itself a final
decision by a City agency for which Plaintiffs were afforded no
hearing or notice. Id. at 4-5. Plaintiffs also argue that the
statute

justifying

the

City’s

demolition

of

their

structure

contains no means for redress. Id. at 7-8. Plaintiffs contend that
their Fifth Amendment claim was not a taking of their property for
public use but rather was an abuse of police power, and thus the
inverse condemnation procedures do not adequately address their
claims. Id. at 9. Plaintiffs note that if the case is dismissed,
Plaintiffs may not be able to join Defendant Metro/Durr Group in
a state court proceeding. Id. at 10.
Finally,

Plaintiffs

argue

that

state

court

inverse

condemnation proceedings are inadequate because there is no way to
3

enforce a civil Judgment against the Defendant City. Id. Plaintiffs
cite to the $34 million owed to more than six hundred final state
court judgments as evidence that a judgment in a state inverse
condemnation proceeding would be, in effect, unenforceable. Id. at
10-11.
IV.

FACTUAL AND LEGAL FINDINGS
The City has moved for dismissal of Plaintiffs claims pursuant

to Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The Court dismisses
a case under Rule 12(b)(1) for lack of subject matter jurisdiction
if it lacks that 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).
the party asserting jurisdiction.
F.3d 158, 161 (5th Cir. 2001).

The burden of proof is on

Ramming v. United States, 281

The standard of review for a Rule

12(b)(1) motion to dismiss for lack of subject matter jurisdiction
is the same as that for a Rule 12(b)(6) motion.
States, 960 F.2d 19, 21 (5th Cir. 1992).

Benton v. United

Thus, the Court cannot

dismiss the complaint unless it appears beyond a doubt that the
plaintiff cannot prove a plausible set of facts in support of his
claim which would entitle him to relief.
Twombly, 127 S. Ct. 1955 (2007).

See Bell Atl. Corp. v.

Additionally, the Court must

accept all well-pleaded facts as true, viewing them in the light

4

most favorable to the plaintiff.

AFL-CIO v. Murphy Oil USA, Inc.,

2007 WL 4365393 at*1 (E.D. La. 2007).
Article

III

of

the

Constitution

limits

federal

courts’

subject matter jurisdiction to “cases” and “controversies,” which
includes the requirement that the case be ripe for review. United
Transp. Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000).
“Ripeness separates those matters that are premature because the
injury is speculative and may never occur from those that are
appropriate for judicial review.” Id. (citing Abbott Labs. v.
Gardner, 387 U.S. 136 (1967), overruled on other grounds).
A. Ripeness of Just Compensation Claim
The City contends that Plaintiffs’ just compensation claim is
unripe because Plaintiffs have failed to seek relief through state
court inverse condemnation procedures. (Rec. Doc. 14-1 at 3). For
Plaintiffs’ just compensation claim to be ripe, they must prove
that their property was “taken” and that they were denied just
compensation.

See

Williamson

County

Reg’l

Planning

Comm’n

v.

Hamilton Bank, 473 U.S. 172, 186 (1985). Property demolitions
constitute a taking of private property. John Corp. v. City of
Houston, 214 F.3d 573, 578-79 (5th Cir. 2000).
However, a violation of the Fifth Amendment’s Takings clause
cannot occur until just compensation has been denied, and thus a
plaintiffs’ claim is unripe when they have not yet brought a claim
through

available

state

court
5

procedures

and

been

denied

compensation through those procedures. Id. at 581. In Louisiana,
an action for inverse condemnation “provides a procedural remedy
to a property owner seeking compensation for land already taken or
damaged.” Louisiana, through Dept. of Transp. & Dev. v. Chambers
Inv. Co., Inc., 595 So.2d 598, 602 (La. 1992). The only exception
to the requirement that a just compensation claim first be brought
in state court is when the state procedures are inadequate, that
is when they “almost certainly will not compensate the claimant.”
Rolf v. City of San Antonio, 77 F.3d 823, 826 (5th Cir. 1996)
(citing Samaad v. City of Dallas, 940 F.2d 925, 934 (5th Cir.
1991)).
In the instant case, Plaintiffs do not deny that they have
failed to pursue a claim through available state court inverse
condemnation procedures prior to the filing of this case in federal
court. Though Plaintiffs allege that the Emergency Procedures
Ordinance1 does not provide a remedy for a wrongful demolition and
that they attempted resolution through letters to the City, these
arguments lack merit. Plaintiffs’ property has already damaged,
and

the

Louisiana

procedure

to

seek

compensation

from

a

governmental entity for property that has already been damaged is
an inverse condemnation action. Dept. of Transp. & Dev., 595 So.2d
at 602. Plaintiffs are required to pursue an inverse condemnation

1

See New Orleans Code, Sec. 26-242.

6

action to resolve their just compensation claim before bringing an
action in federal court, regardless of whether the city ordinance
mentions that procedure or whether Plaintiffs have sent letters to
various departments of the City.
Plaintiffs allege that an inverse condemnation action would
be inadequate for two reasons: (1) their just compensation claim
is an abuse of police power claim rather than a takings claim and
(2) the Louisiana Constitution2 does not require the City to pay a
judgment rendered against it. (Rec Doc. 19 at 9). Plaintiffs’ first
argument that their claim rests on abuse of police power, rather
than a taking, and thus an inverse condemnation action would not
adequately

address

their

claim

cuts

against

justiciability.

Plaintiffs have filed a just compensation claim but argued that
the procedure to obtain just compensation in state court is
inadequate because they lack a requisite element of a takings
claim. Similar claims of abuse of police power have been disposed
of by the Fifth Circuit on the grounds that when an exercise of
police power goes too far it amounts to a taking and thus inverse
condemnation procedures are appropriate in those cases. See John
Corp., 214 F.3d at 578. Additionally, while Plaintiffs allege that

2

Plaintiffs cite LA. Const. Art. 12, § 10(c), which provides that:
“[N]o public property or funds shall be subject to seizure. No judgment
against the state, a state agency, or a political subdivision shall be
exigible, payable, or paid except from funds appropriated by the
legislature or by the political subdivision against which judgment is
rendered.”

7

an inverse condemnation action is an inadequate remedy because the
Louisiana Constitution does not require the City to pay a judgment
rendered against it, the Fifth Circuit has found that Louisiana
inverse condemnation proceedings are adequate remedies for takings
claims. Id. at 581. Though Plaintiffs allege that the City would
not be required to compensate them in an inverse condemnation
action, Plaintiffs fail to establish that they “almost certainly”
would not be compensated through an inverse condemnation action,
as required by Fifth Circuit precedent. See John Corp., 214 F.3d
at 581; Samaad, 940 F.2d at 934-35. While the City may not be
required to pay a judgment, such a deficiency does not amount to
near-certainty
judgment

that

against

Plaintiffs’

the

City.

could

Thus,

obtain

these

no

enforceable

arguments

are

also

meritless.
Plaintiffs’ other attempts to differentiate their case from
cases where the Supreme Court and Fifth Circuit have found a
takings claim to be unripe are a misapplication of case law.
Plaintiffs’ case involves an alleged physical taking of property,
while Hodel, Agins, and Penn Central all involve regulatory takings
of

property,

which

consider

different

factors

than

physical

takings. See Hodel v. Virginia Surface Mining & Reclamation Assn.,
Inc., 452 U.S. 264, 294-97 (1981); Agins v. Tiburon, 447 U.S. 255,
260-63 (1980); Penn Central Transp. Co. v. New York City, 438 U.S.
104, 138 (1978). Thus, Plaintiffs’ claim that the demolition of
8

the

structures

on

their

property

was

a

final

decision

by

a

regulatory agency is without merit because that factor is not
required for physical takings.
Finally, Plaintiffs’ ability to join Defendant Metro/Durr
Group in a state court inverse condemnation action is not a factor
for

this

Court’s

consideration

in

determining

subject

matter

jurisdiction. When the Court lacks subject matter jurisdiction,
the case must be dismissed, without exception. Arbaugh v. Y&H
Corp., 546 U.S. 500, 502 (2006).
B. Ripeness of Procedural Due Process Claim
The City contends that Plaintiffs’ procedural due process
claims are also unripe because they have failed to bring their
just compensation claim through state court procedures. (Rec. Doc.
14-1 at 4). For a procedural due process claim to be ripe, a court
must consider “(1) the fitness of the issues for judicial decision
and

(2)

the

hardship

to

the

parties

of

withholding

court

consideration.” Rosedale Missionary Baptist Church v. New Orleans
City,

641

F.3d

86,

91

(5th

Cir.

2011)

(quoting

Nat’l

Park

Hospitality Ass’n, 538 U.S. 803, 808 (2003)). The ripeness inquiry
for due process claims does not align with takings ripeness, but
rather follows the general rule that a claim is unripe if further
factual development is necessary. See John Corp., 214 F.3d at 586.
The Fifth Circuit has specifically found that procedural due
process

claims

alleging

that

a
9

plaintiff

was

not

afforded

sufficient due process before a demolition of property are unripe
if the takings claim associated with it has not yet been decided
through state court procedures. See Rosedale Missionary Baptist
Church, 641 F.3d at 91; John Corp., 214 F.3d at 585. “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.” Rosedale Missionary Baptist
Church, 641 F.3d at 91.
In the instant case, Plaintiffs have brought their procedural
due process claim in conjunction with their just compensation
claim, and they allege that they were not afforded due process
before the demolition of their property. (Rec. Doc. 2 at 1).
Because

Plaintiffs

have

not

sought

a

remedy

for

their

just

compensation claim through an inverse condemnation action in state
court, Plaintiffs’ related procedural due process claim is also
unripe for this Court’s review and should be dismissed.
C. Ripeness of Seizure Claim
Finally, the City contends that Plaintiffs’ Fourth Amendment
seizure

claim

is

unripe

for

review

because

further

factual

development is necessary. (Rec. Doc. 14-1 at 5-6). The elements of
a

seizure

claim

are

“(a)

a

meaningful

interference

with

[plaintiffs’] possessory interests in [their] property, which is
(b) unreasonable because the interference is unjustified by state
10

law or, if justified, then uncompensated.” Severance v. Patterson,
566 F.3d 490, 502 (5th Cir. 2009) (citing Presley v. City of
Charlottesville,

464

F.3d

480,

487-88

(4th

Cir.

2006)).

A

demolition of property is a seizure for the purposes of a Fourth
Amendment claim. Freeman v. City of Dallas, 242 F.3d 642, 647, n.
5 (5th Cir. 2001).

The ripeness of a seizure claim is not governed

by the framework for ripeness of a takings claim; rather, the court
must consider: “(1) whether the issues are purely legal; (2)
whether the issues are based on final agency action; (3) whether
the controversy has a direct and immediate impact on the plaintiff;
and (4) whether the litigation will expedite, rather than delay or
impede, effective enforcement by the agency.” Severance, 566 F.3d
at 500 (citing Abbott Labs., 387 U.S. at 149-55).
In the instant case, Plaintiffs’ claim is not purely legal –
it depends on factual resolution of Plaintiffs’ just compensation
and procedural due process claims. Because Plaintiffs have not
brought an inverse condemnation action in state court, it is not
yet clear whether Plaintiffs are uncompensated for the demolition.
Additionally, the demolition at issue in Plaintiffs’ seizure claim
is not based on a final agency action because Plaintiffs have
failed to bring an inverse condemnation action in state court.
Furthermore, the controversy does not have a direct and immediate
impact on the Plaintiffs because they do not reside at the property
at issue and the property had been blighted when Plaintiffs
11

purchased it three months prior to the demolition. (Rec. Doc. 2 at
3). Finally, the litigation at hand would impede any state court
resolution

of

Plaintiffs’

takings

and

procedural

due

process

claims. Because none of these factors weigh in favor of ripeness,
Plaintiffs’ seizure claim is unripe.
V. CONCLUSION
IT IS ORDERED that Defendant’s Motion to Dismiss IS GRANTED.
New Orleans, Louisiana, this 24th day of July, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

12