Alex et al v. St. John the Baptist Parish Sheriff's Office et al

Filing 95

ORDER AND REASONS granting 73 Motion to Dismiss for Failure to State a Claim. Party Rosleyn Duley dismissed without prejudice. Signed by Judge Susie Morgan on 5/23/2017. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHAWANDA NEVERS ALEX, ET AL.,
Plaintiffs

CIVIL ACTION

VERSUS

NO. 16-17019

ST. JOHN THE BAPTIST
PARISH SHERIFF’S OFFICE, ET AL.,
Defendants

SECTION: “E”

ORDER AND REASONS
Before the Court is a motion to dismiss for lack of subject-matter jurisdiction, or
alternatively, for failure to state a claim filed by Rosalyn Duley.1 The Plaintiffs did not file
an opposition to the motion to dismiss. For the following reasons, the motion to dismiss
is GRANTED.
The Plaintiffs’ 39-page complaint mentions defendant Rosalyn Duley a total of
three times.2 The Plaintiffs allege “The DA’s office would not let the Attorney Roslyn [sic]
Duley who signed the promissary [sic] note answer any questions.” 3 Contradictorily, the
Plaintiffs further allege “Attorney Duley stated for the record she had never heard of the
usury law” and “went over the note and had [the Plaintiff, Shawanda Nevers, and Barbara
Sylvester] sign a promissary [sic] note with 100% interest in 30 days, which is illegal [and]
plaintiff Nevers was [thereafter] convicted of theft of an asset of [an] aged person.” 4 The
Court construes the Plaintiffs’ allegations against Rosalyn Duley to sound in attorney

R. Doc. 73.
See R. Doc. 7-1 at 24–25.
3 Id. at 24, ¶ 13(12). Presumably, the Plaintiffs are referring to the state-court criminal trial of Plaintiff
Shawanda Nevers, in which she was convicted of violating Louisiana Revised Statutes Section 14:67.21—
theft of the assets of an aged or disabled person.
4 Id. at 25.
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malpractice under Louisiana law, arising out of the Plaintiffs’ execution of a promissory
note.
Ms. Duley argues the Plaintiffs’ claim against her should be dismissed pursuant to
Federal Rule of Civil Procedure 12(b)(1) because this Court lacks subject-matter
jurisdiction, and also pursuant to Rule 12(b)(6) because the Plaintiffs’ complaint fails to
state a claim upon which relief may be granted.5
Federal Rule of Civil Procedure 12(h)(3) mandates the dismissal of an action when
a federal court lacks jurisdiction over the subject matter of the plaintiff’s claim. A party
seeking to challenge a federal court’s jurisdiction, based upon the allegations on the face
of the complaint, may file a motion pursuant to Federal Rule of Civil Procedure 12(b)(1).6
In ruling on a Rule 12(b)(1) motion to dismiss, the Court may rely on “(1) the complaint
alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts and by the court’s resolution of
disputed facts.”7 A federal court has an unflagging duty to inquire into its jurisdiction
whenever the possibility of a lack of jurisdiction arises. 8 As the party asserting federal
jurisdiction, the burden is on the plaintiff to demonstrate that jurisdiction is proper. 9
The Court should consider a Rule 12(b)(1) jurisdictional attack before addressing
any attack on the merits.10 “A motion to dismiss for lack of subject-matter jurisdiction

R. Doc. 73.
Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996) (citing Williamson v. Tucker, 645
F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897 (1981)).
7 Barrera-Montenegro, 74 F.3d at 659 (internal citations omitted).
8 Stockman v. Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998).
9 Id.
10 In re FEMA Trailer Formaldehyde Prods. Litig., 668 F.3d 281, 286 (5th Cir. 2012) (citing Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001)).
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should only be granted if it appears certain that the plaintiff cannot prove any set of facts
in support of [her] claims entitling [her] to relief.”11
Ms. Duley argues the Court lacks supplemental subject-matter jurisdiction over
the Plaintiffs’ claim against her. The Plaintiffs make federal-law claims under 42 U.S.C.
§§ 1983, 1985, and 1988 for violations of their civil rights and state-law claims for
“malicious prosecution, prosecutorial misconduct, malice, slander, defamation, false
arrest, and false imprisonment.”12 The Court has original subject-matter jurisdiction over
the Plaintiffs’ federal-law claims, and may exercise supplemental subject-matter
jurisdiction over the Plaintiffs’ state-law claims only if they are “so related” to the federal
civil rights claims that they form part of the same case or controversy.13 The Plaintiffs’
claim asserted against Ms. Duley is for legal malpractice under Louisiana law.14 The Court
does not see a sufficient connection between the legal malpractice claim asserted against
Ms. Duley and the alleged federal civil rights violations, which provide the basis for this
Court’s original subject-matter jurisdiction. As a result, the Court finds that it does not
have supplemental jurisdiction over the Plaintiffs’ legal malpractice claim against Ms.
Duley, as it is not so related to the Plaintiffs’ federal civil rights claims such that they form
part of the same case or controversy under Article III of the United States Constitution.
Accordingly, the Plaintiffs’ claim against Rosalyn Duley is hereby DISMISSED
WITHOUT PREJUDICE, and Rosalyn Duley is dismissed as a defendant in this action.

Id. at 287 (citing Wagstaff v. United States Dep't of Educ., 509 F.3d 661, 663 (5th Cir. 2007)).
R. Doc. 7-1 at 2.
13 Title 28, United States Code, Section 1367 provides that “in any civil action of which the district courts
have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that
are so related to claims in the action within such original jurisdiction that they form part of the same case
or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367.
14 See LA. REV. STAT. ANN. § 9:5605.
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Any claim for legal malpractice the Plaintiffs may have against Ms. Duley may be filed in
the proper state court.
New Orleans, Louisiana, this 23rd day of May, 2017.
____________________ ___________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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