Shepherd v. Fanning et al
ORDER AND REASONS granting 60 Motion to Dismiss for Failure to State a Claim. Signed by Judge Martin L.C. Feldman on 6/21/2017. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DEBORAH A. SHEPHERD
PATRICK FANNING, ET AL.
ORDER AND REASONS
Before the Court is Patrick Fanning’s motion to dismiss
pursuant to Rule 12(b)(6). For the reasons that follow, the motion
The factual summary is set forth in the light most favorable
to Ms. Shepherd. This civil rights lawsuit arises from an Illinois
resident’s allegedly wrongful arrest based on a warrant issued
after a New Orleans resident complained to the New Orleans Police
Department that the Illinois resident conspired with an American
living in Mexico to extort and defraud funds from his New Orleans
account relative to a condominium he owns in Cozumel, Mexico.
Deborah Shepherd is a resident of Cook County, Illinois.
owns a condominium in Cozumel, Mexico.
Patrick Fanning is a
resident of New Orleans, Louisiana, who owns a condo in the same
complex in Cozumel.
On January 11, 2011, Mr. Fanning made a criminal complaint to
Lieutenant Anthony J. Caprera of the New Orleans Police Department.
Mr. Fanning reported that one Frank DelCorno, an American citizen
residing in Mexico, and Ms. Shepherd had conspired to extort and
steal money from Mr. Fanning.
It is alleged that Mr. Fanning knew
that his allegations against Ms. Shepherd were false.
All of Ms.
Shepherd’s actions relative to Mr. Fanning, she alleges: occurred
in Cozumel, Mexico; were consistent with Mexican law; and were
taken as a result of Mr. Fanning’s failure to comply with Mexican
law with regard to the ownership of his condo.
Based on Mr. Fanning’s complaint, Lt. Caprera submitted a
police incident report to Sergeant Crespo and also prepared an
arrest warrant application for Ms. Shepherd.
that this was part of a conspiracy.
Ms. Shepherd alleges
Sergeant Crespo reviewed and
approved Caprera’s report, even though he allegedly knew that
Louisiana had no jurisdiction over conduct that took place in
On Monday, January 10, 2011, Detective Caprera met with
Patrick Fanning, a resident of Orleans Parish . . . who
provided the following information.
Fanning is the owner of a condominium located in Cozumel,
Mexico. The registered address for the ownership of that
property is Fanning's residence, located at 920 Emerald
Street in New Orleans. The seller of the property is a
company named Incontext, which is controlled by Frank
DelCorno, an American citizen living in Cozumel.
Although Fanning has paid in full for the condominium
DelCorno has failed to provide title to the property as
required in the sales agreement. Fanning now holds trust
documents with a Mexican bank, as required by Mexican
law, but is unable to register those documents in the
public record because of the actions of DelComo and
Deborah Shepherd, an American citizen residing in Orland
Hills, Illinois, is a close associate of DelCorno and
was for many years the treasurer of the condominium
owners' association. Shepherd was installed in that
position by DelCorno shortly after the association was
originally formed. In that capacity she reviewed
Fanning's trust documents to confirm that he was the
actual owner of the condominium. Those documents show
the registered address of the condominium to be in New
Shepherd knows well that Fanning owns the condo in
question and that he paid all costs of ownership from
his bank account in New Orleans since he has no Mexican
bank account or any source of funds in Mexico. In fact,
Shepherd sent numerous bills for owners fees and notices
for owners meetings to Fanning's New Orleans address.
DelCorno and Shepherd entered into a scheme to extort
and defraud Fanning.
Shepherd filed a false claim
against Incontext and DelCorno claiming that she worked
as an employee of Incontext and DelCorno and that she
was owed approximately $100,000.00 U.S. dollars for
unpaid wages earned in Mexico while working for DelCorno
and Incontext. Shepherd never earned any such wages and
was not entitled to any such compensation. In fact, she
was not present in Mexico for most of the time period in
question. DelCorno did not dispute this obviously
fraudulent claim and in fact assisted Shepherd in
preparing said claim. DelCorno and Incontext then
allowed Shepherd to obtain a lien against several
properties, including Fanning's condominium, which are
still registered in the public record as properties
owned by Incontext.
Shepherd demanded payment of the wages in the amount of
$100,000.00 which she never earned or, if that amount is
not paid, she demanded that Fanning’s condo be seized
and sold at auction to satisfy the bogus indebtedness.
At the time that she made that demand, and continuing
today, she knew full well that Fanning resides in New
Orleans and would be forced to send funds from his New
Orleans bank account to prevent his condo, which is
valued at approximately $400,000, from being sold at
auction. Any amount received at auction in excess of her
claim would then be given to DelCorno as the registered
owner of the property.
On December 3, 2010, Fanning received a telephone call
at his home in New Orleans informing him that Shepherd
had a lien on his property and that his condominium was
subject to seizure and auction if the $100,000 lien was
Fanning traveled to Mexico where he confirmed the
existence of the lien and returned to New Orleans to
send money from his New Orleans account. Fanning
presented to the undersigned officer a receipt showing
payment so far of $20,000 which was wired from his
account in New Orleans to Mexico in an effort to keep
his condo from being seized.
The warrant application was presented to a magistrate in state
criminal district court in New Orleans.
The magistrate disagreed
with Lt. Caprera’s conclusion that the alleged acts constituted
extortion, but the magistrate found probable cause for conspiracy
to commit theft, in violation of La.R.S. 14:26 and 14:67.
warrant, as amended by the magistrate, was issued on January 12,
nationwide NCIC system. 1
September 26, 2014, Ms. Shepherd was arrested at her home in Orland
Park, Illinois; she was held in custody for three days before being
released on bond.
As a result of her arrest and in compliance
with her bond conditions, Ms. Shepherd traveled to New Orleans to
appear on the allegedly false charges.
In New Orleans, Ms.
Shepherd was incarcerated and held in custody for six hours before
being released on bond.
In March 2015, it is alleged, the Orleans
charges...consistent with [her] innocence.”
Almost 18 months after she was arrested, on March 9, 2016,
Ms. Shepherd filed this civil rights action against Mr. Fanning,
Lt. Caprera, Sgt. Crespo, and the City of New Orleans in the United
States District Court for the Northern District of Illinois.
alleges, pursuant to 42 U.S.C. § 1983, that she was falsely
arrested and falsely imprisoned in violation of the Fourth and
Ms. Shepherd fails to even reference that the arrest warrant was
issued by a magistrate judge in state court.
And although she
does not reference the underlying application for the arrest
warrant, the Court takes judicial notice of matters of public
record such as the state court arrest warrant and supporting
Fourteenth Amendment rights to be free from an arrest not based on
She also alleges four state law based claims for
false arrest, false imprisonment, abuse of process, and civil
While this case was pending in the Northern District of
dismissal including lack of personal jurisdiction, improper venue,
and failure to state a claim upon which relief may be granted.
Finding that venue would be proper in this Court, on March 21,
2017, Judge Wood granted the pending motions only insofar as they
urged that venue was improper in Illinois, and the case was
This Court issued an order dismissing without
prejudice any unresolved motions, and ordered that the defendants
re-file any motions to dismiss they wished to urge in compliance
with this Court’s Local Rules.
On May 26, 2017, the Court granted
Mr. Fanning now moves to dismiss the plaintiff’s
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.
Such a motion is rarely
granted because it is viewed with disfavor.
See Lowrey v. Tex. A
& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d
1045, 1050 (5th Cir. 1982)).
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure,
a pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."
Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed. R. Civ. P. 8).
Although Lt. Caprera and Sgt. Crespo do not now seek dismissal
of the claims against them, the City submitted in its motion that,
if the Court grants Mr. Fanning’s and the City’s motions to
dismiss, dismissal against Caprera and Crespo would be warranted
under Rule 12(c).
3 Meanwhile, the plaintiff requested leave to amend her complaint
to add a state law malicious prosecution claim; on June 20, 2017,
the magistrate judge granted the motion as unopposed.
allegations and adds a malicious prosecution claim brought under
state law. No new federal claims were added.
unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court “accept[s]
all well-pleaded facts as true and view[s] all facts in the light
most favorable to the plaintiff.”
See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee
v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th
Cir. 2012)(en banc)).
But, in deciding whether dismissal is
warranted, the Court will not accept conclusory allegations in the
complaint as true.
Id. at 502-03 (citing Iqbal, 556 U.S. at 678).
To survive dismissal, “‘a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.’” Gonzalez v. Kay, 577 F.3d 600, 603
(5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal quotation
marks omitted). “Factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact).”
Twombly, 550 U.S. at 555 (citations and
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
Iqbal, 556 U.S. at 678 (“The plausibility
standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
This is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common
Id. at 679.
“Where a complaint pleads facts that are
merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to
relief.” Id. at 678 (internal quotations omitted) (citing Twombly,
550 U.S. at 557).
“[A] plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’”, thus, “requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at
555 (alteration in original) (citation omitted).
Finally, “[w]hen reviewing a motion to dismiss, a district
court ‘must consider the complaint in its entirety, as well as
other sources ordinarily examined when ruling on Rule 12(b)(6)
motions to dismiss, in particular, documents incorporated into the
complaint by reference, and matters of which a court may take
Funk v. Stryker Corp., 631 F.3d 777, 783 (5th
Cir. 2011)(quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007)).
Title 42, U.S.C. § 1983 creates a damages remedy for the
violation of federal constitutional or statutory rights under
color of state law; it provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ... subjects,
or causes to be subjected, any ... person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured.
Because Section 1983 merely provides a remedy for designated
underlying constitutional or statutory violation is a predicate to
Harrington v. Harris, 118 F.3d 359, 365 (5th Cir.
To establish § 1983 liability, the
plaintiff must satisfy three elements:
deprivation of a right secured
Constitution or federal law,
that occurred under color of state law, and
was caused by a state actor.
Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004)
Ms. Shepherd’s Section 1983 claims are based on alleged
deprivations of her constitutional rights to be free from wrongful
arrest and wrongful imprisonment secured by the Fourth Amendment.
Advancing three distinct grounds, Mr. Fanning moves to dismiss
Shepherd’s Section 1983 claims and urges the Court to decline to
exercise supplemental jurisdiction over all remaining state law
Ms. Shepherd’s Federal Civil Rights Claims Are TimeBarred.
Because venue was improper in Illinois, the Court applies the
law of the transferee forum, here, Louisiana law, to determine the
applicable statute of limitations period governing the plaintiff’s
federal civil rights claims.
Davis v. Louisiana State University,
Southwestern Corp., 646 F.2d 1099, 1109-1111 (5th Cir. 1981)).
The purpose of this rule is anchored in common sense: a plaintiff
should not be rewarded by forum shopping in an effort to gain the
benefit of an improper forum’s laws.
Martin v. Stokes, 623 F.2d
469, 472-73 (6th Cir. 1980).
Section 1983 does not contain an independent statute of
limitations period for personal injury actions in the forum state.
Owens v. Okure, 488 U.S. 235, 250 (1989); King-White v. Humble
Louisiana, there is a one-year prescriptive period applicable to
personal injury actions.
La. Civ. Code art. 3492.
Section 1983 claims pending in federal courts in Louisiana are
subject to a one year statute of limitations period.
Roberson, 868 F.2d 793, 794 (5th Cir. 1989).
A Section 1983 claim based on allegations of false arrest or
false imprisonment in federal court in Louisiana must be filed
within one year of the date that claim accrues.
Hitt v. Connell, 301 F.3d 240, 246 (5th Cir.
A cause of action for false arrest or imprisonment accrues
when the claimant becomes detained pursuant to legal process.
Wallace v. Kato, 549 U.S. 384, 389-91 (2007)(holding that “the
statute of limitations upon a Section 1983 claim seeking damages
for false arrest in violation of the Fourth Amendment, where the
arrest is followed by criminal proceedings, begins to run at the
time the claimant becomes detained pursuant to legal process.”). 4
Notably, the pendency of criminal charges against the Section 1983
Where a plaintiff has been arrested pursuant to an arrest warrant
signed by a judge, the claim for false arrest or imprisonment
accrues on the date of arrest.
See Villegas v. Galloway, 458
Fed.Appx. 334, 338 (5th Cir. 2012)(“false imprisonment ends when
the defendant is held pursuant to legal process, such as when he
is arraigned or bound over by a magistrate [such as when] a
magistrate judge found probable cause to detain [the Section 1983
plaintiff] pending trial.”).
plaintiff does not toll the limitations period for a false arrest
or imprisonment claim.
imprisoned on September 26, 2014 when a previously issued arrest
warrant was finally executed.
She filed her complaint in Illinois
18 months later on March 9, 2016.
Because she filed her Section
1983 claims based on false arrest and false imprisonment more than
one year after she was detained pursuant to legal process, as a
matter of law her Section 1983 claims as against all defendants
are prescribed and must be dismissed. 5
The Court Declines to Exercise Supplemental Jurisdiction
Over Remaining State Law Claims
In her complaint and amended complaint, Ms. Shepherd invokes
pursuant to 28 U.S.C. § 1331.
All federal claims have been
Having dismissed all claims over which it has original
jurisdiction over the plaintiff’s remaining state law claims.
U.S.C. § 1367(c). Shepherd’s state law claims, including the newly
The Court need not reach the remaining grounds advanced by Mr.
Fanning in support of dismissal of the plaintiff’s federal claims.
added malicious prosecution claim based on Louisiana law, are
dismissed without prejudice.
Accordingly, for the foregoing reasons, IT IS ORDERED: that
the defendant’s motion to dismiss is hereby GRANTED.
finding that the plaintiff’s Section 1983 claims based on false
arrest and false imprisonment are time-barred applies equally to
the plaintiff’s same claims against the remaining defendants.
Accordingly, IT IS FURTHER ORDERED: that the plaintiff’s Section
1983 claims based on false arrest and false imprisonment are hereby
dismissed with prejudice.
Finally, IT IS FURTHER ORDERED: that
the Court declines to exercise supplemental jurisdiction over the
remaining state law claims; those claims are hereby dismissed
New Orleans, Louisiana, June 21, 2017
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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