Port Marigny, LLC et al v. City of Mandeville et al
ORDER AND REASONS granting 6 Motion to Dismiss for Failure to State a Claim. Signed by Judge Carl Barbier on 4/12/2018. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PORT MARIGNY, LLC, ET
CITY OF MANDEVILLE, ET
ORDER & REASONS
NATURE OF MOTION AND RELIEF REQUESTED
Before the Court is a Motion to Dismiss (Rec. Doc. 6) filed
by David Ellis, John Keller, Clay Madden, Michael Pulaski, and
Lauré Sica, in their official capacities as members of Mandeville
City Council (collectively, the “Councilpersons”). Port Marigny,
LLC and Pittman Assets, LLC (collectively, the “Plaintiffs”) filed
an opposition thereto (Rec. Doc. 12) and Councilpersons filed a
reply (Rec. Doc. 15).
Having considered the motion and legal
memoranda, the record, and the applicable law, the Court finds
that the motion should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
This litigation involves a Mandeville City Council decision
to deny Plaintiffs’ plan to develop a 76-acre tract of land (the
“Site”) 1 into a neighborhood in Mandeville, Louisiana (commonly
1 From the 1950s to the 1980s, the Site was the location of a manufacturing
plant for pre-stressed concrete products. Plaintiff Pittman Assets, LLC
purchased the Site in the 1980s and is the current owner.
known as the “Port Marigny project”).
(Rec. Doc. 1-1.)
Plaintiffs allege that they provided the City with a “tailor-made”
proposal for the Site that complied with the Comprehensive Land
Use Regulations Ordinance (“CLURO”) 2 as well as “multiple other
demands made by the City.” Despite Plaintiffs’ alleged compliance
with the requisite local laws, on March 9, 2017, four out of five
Marigny project. Plaintiffs allege that the “decision to terminate
the Port Marigny project after nearly two years of deliberation
and expense was arbitrary and capricious.”
On April 7, 2017, Plaintiffs filed a verified petition in the
Plaintiffs named the City of Mandeville and all five Councilpersons
Plaintiffs seek: judicial review of the Councilpersons’ votes
along with a judgment that renders the votes null and void and
Plaintiffs’ proposal satisfied all requirements of the CLURO; a
ambiguous; damages for violations of federal rights under 42 U.S.C.
According to Plaintiffs, the City adopted a Comprehensive Plan, which outlines
specific policies for a “vibrant walkable, mixed-use, waterfront development
that provides strong fiscal benefits for the City.” (Rec. Doc. 1-1 ¶ 9.) It
also sets out a policy encouraging “new urbanist design standards.” The City
Council codified these policies in its Comprehensive Land Use Regulations
§ 1983, namely, unconstitutional taking, due process violations
unconstitutional taking under state law; and attorneys’ fees under
42 U.S.C. § 1988.
The City of Mandeville answered the complaint
and Councilpersons filed the instant motion to dismiss (Rec. Doc.
6). The motion is now before the Court without oral argument.
First, Councilpersons argue that all claims against
them in their official capacities are essentially claims against
the City Council.
Because the City Council lacks the procedural
capacity to sue or be sued, Councilpersons argue that they, in
their official capacities, also lack procedural capacity to sue or
Second, Councilpersons argue that they are entitled to
absolute immunity or, in the alternative, qualified immunity. With
regards to absolute immunity, Councilpersons claim that Plaintiffs
are unable to sue them for any actions that constitute “legislative
As for qualified immunity, Councilpersons state that
they are immune from liability for performing what they consider
were discretionary functions.
Councilpersons’ third argument is
§ 9:2798.1 3 shields them from
La. Rev. Stat. § 9:2798.1, in relevant part, provides:
(B) Liability shall not be imposed on public entities or their
officers or employees based upon the exercise or performance or the
discretionary act related to a legitimate government interest.
Finally, Councilpersons argue that Plaintiffs failed to plead
enough facts to survive a 12(b)(6) motion.
Plaintiffs contend that Councilpersons possess the procedural
capacity to be sued in their official capacity even if the City
Council itself does not have such capacity.
argue that Defendants are not entitled to either absolute or
qualified immunity because they have been named in their official,
rather than individual, capacities. Third, Plaintiffs contend that
Defendants failed to justify the purposes of the multiple delays
and procedural hurdles, which hindered development of the Port
Marigny project. Finally, Plaintiffs contend that they have plead
enough facts to survive a 12(b)(6) motion.
Under the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim showing that the
failure to exercise or perform their policymaking or discretionary
acts when such acts are within the course and scope of their lawful
powers and duties.
(C) The provisions of Subsection B of this Section are not
(1) To acts or omissions which are not reasonably related to the
legitimate governmental objective for which the policymaking or
discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent,
malicious, intentional, willful, outrageous, reckless, or flagrant
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
complaint must “give the defendant fair notice of what the claim
is and the grounds upon which it rests.” Dura Pharm., Inc. v.
Broudo, 544 U.S. 336, 346 (2005) (internal citations omitted). The
allegations “must be simple, concise, and direct.” Fed. R. Civ. P.
plaintiff fails to allege any set of facts in support of his claim
which would entitle him to relief.” Taylor v. Books A Million,
Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing McConathy v. Dr.
Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)). To
survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead
enough facts to “state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible when the plaintiff pleads facts that allow the
court to “draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
A court must accept all
well-pleaded facts as true and must draw all reasonable inferences
in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d
228, 232 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th
Cir. 1996). The court is not, however, bound to accept as true
legal conclusions couched as factual allegations. Iqbal, 556 U.S.
masquerading as factual conclusions will not suffice to prevent a
motion to dismiss.”
Taylor, 296 F.3d at 378.
1. Procedural Capacity
Rule 12(b) does not specifically authorize a motion to dismiss
based on a lack of capacity to be sued.
However, “[f]ederal courts
. . . traditionally have entertained certain pre-answer motions
that are not expressly provided for by the rules or by statutes”
including motions raising a lack of capacity to sue or be sued.
5C Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1360 (3d ed. 2004). Furthermore, “[t]he Fifth Circuit
has implicitly approved 12(b) motions arguing the lack of capacity
to be sued.”
Angers ex rel. Angers v. Lafayette Consol. Gov't,
07-0949, 2007 WL 2908805, at *1 (W.D. La. Oct. 3, 2007) (citing
Darby v. Pasadena Police Dep't, 939 F.2d 311 (5th Cir. 1991)
(affirming that Pasadena Police Department had no jural existence
and therefore was properly dismissed from suit)). Therefore, the
Court will consider Councilpersons’ Rule 12(b)(6) motion based on
a lack of capacity to be sued.
pertinent part, that the “capacity to sue or be sued shall be
determined by the law of the state in which the district court is
Under the Louisiana Civil Code, there are two kinds of
See La. Civ. Code art. 24. 4
Article 24 defines
a natural person as “a human being” and a juridical person as “an
corporation or partnership.” Id. Natural persons enjoy general
legal capacity to have rights and duties, but juridical persons
are “creature[s] of the law and by definition, [have] no more legal
capacity than the law allows.” Angers ex rel. Angers v. Lafayette
Consol. Gov’t., 2007 WL 2908805, at *2 (citations omitted).
person is neither natural nor juridical, then it does not have
procedural capacity to sue or be sued.
See Roy v. Alexandria City
Council, 2007-1322, p. 4 (La. App. 3 Cir. 5/7/08), 984 So. 2d 191,
Councilpersons contend that they lack the procedural capacity
to be sued because a lawsuit against them in their official
capacities is essentially a suit against the City Council as a
In turn, because the City Council is not a juridical person
with the capacity to be sued, Councilpersons argue that they also
lack procedural capacity to be sued in this matter.
La. Civ. Code art. 24 provides:
There are two kinds of persons: natural persons and juridical
persons. A natural person is a human being. A juridical person is
an entity to which the law attributes personality, such as a
corporation or a partnership. The personality of a juridical person
is distinct from that of its members.
Councilpersons in his or her official capacity and not the City
The parties cite to two cases from Louisiana’s Third Circuit
that address this issue, City Council of Lafayette v. Bowen and
Roy v. Alexandria City Council.
In Bowen, the Lafayette City
Council filed suit against the Mayor of Lafayette alleging the
improper use of public funds.
94-584, p. 2 (La. App. 3 Cir.
11/2/94), 649 So. 2d 611, 612.
At issue was whether or not the
City Council was a juridical entity with the capacity to sue or be
Id. at 613.
The trial court concluded that the City Council
was not a juridical person because the city’s charter did not
expressly grant the City Council the independent authority to sue
or be sued.
In an attempt to cure the procedural defect, the
City Council amended its complaint to add the council members in
their official capacities as the plaintiffs.
Id. at 614.
determination that the amendment had no impact on the procedural
Id. at 616.
The court stated:
The trial court correctly concluded that naming the
council members individually changed nothing. The
plaintiff remained the City Council. The council members
did not join the suit in their individual capacities as
persons but, instead, in their official capacities as
council members. The fact that, officially, the council
members individually represent citizens and taxpayers
does not change the fact that the City Council is the
sole plaintiff. The amendment did not cure this
Id. (emphasis added).
Thus, the court held that when considering
procedural capacity, a suit against council members in their
official capacity was equivalent to suing the City Council itself.
In their opposition, Plaintiffs cite to a later Louisiana
Third Circuit case, Roy v. Alexandria City Council, to support
their contention that the Councilpersons have procedural capacity.
2007-1332 (La. App. 3 Cir. 5/7/08), 984 So.2d 191.
In Roy, the
Mayor of Alexandria filed suit “against the City Council and its
members individually who . . . voted to override the Mayor’s veto”
of a city ordinance.
Id. at 193 (emphasis added).
sought a declaratory judgment that the city ordinance was invalid
and also sought an injunction “against the City Council members,
individually” from acting further on the ordinance.
At issue was whether the City Council and the council
Referencing Bowen, the Louisiana Third Circuit determined that the
procedural capacity to sue or be sued. Id. at 194-95. The court
did, however, allow “the five individual members” to be sued as
they were natural persons as defined by La. Civ. Code art. 24.
injunctive relief sought by the Mayor, and granted by the trial
court, was directed to the individual council members and it
restrained them from entering into an invalid contract on behalf
of the City of Alexandria.” Id. at 195 (emphasis added).
According to Plaintiffs, “while Bowen prevented suit against
the City Council, Roy explained that a suit could be maintained
against the individual city council members.”
(Rec. Doc. 12 at
5.) Plaintiffs’ argument is flawed for two reasons. First, the
capacity of the individual council members in their official
capacities by stating that it was essentially the same as a suit
brought by the City Council itself.
Therefore, the Bowen decision
did not just prevent suit against the City Council, it also
prevented suit against the council members in their official
capacities. Id. at 616 (“The council members did not join the suit
in their individual capacities as persons but, instead, in their
official capacities as council members . . . . The amendment did
not cure this procedural defect.”).
Second, the Roy opinion is
rather ambiguous for the present purpose because it fails to
address whether the council members were named in their official
distinction may have on procedural capacity in light of Bowen. The
Court notes that while the Roy court thoroughly cited its earlier
capacity, it did not state that it was departing from Bowen when
considering the procedural capacity of the council members.
Roy court merely held that “the five individual members who were
eventually left in the suit c[ould] be sued as they [we]re natural
persons.” Id. at 195.
Other courts appear to follow a similar analysis as Bowen for
cases that name individual members in their official capacities.
For example, in Turner v. Houma Municipal Fire & Police Civil
Service Board, the plaintiff filed suit against the Houma Municipal
Fire and Police Civil Service Board as well as the Board members
in their individual and official capacities. 99-152, 2001 WL
561992, at *1 (E.D. La. May 22, 2001).
Defendants moved to dismiss
or, alternatively, for summary judgment on the grounds that the
Board and its members were not juridical entities capable of being
The court first concluded that the Board was a juridical
entity capable of being sued.
Id. at *4. Turning to the Board
members, the court noted that the only remaining claims against
the Board members were in their official capacities. Id.
to Bowen, the court stated that “in an official capacity action,
the Board and its members are analytically the same entity because
5 As emphasized above, the Roy court repeatedly referred to the council members
as individuals or that they were being sued individually. However, the opinion
does not explicitly state whether the council members were sued in their
official or individual capacities. The term “individual” or “individually” does
not necessarily refer to individual capacity as courts often confusingly use
the term even when discussing official capacity claims. For example, during
the Bowen court’s discussion on an amendment that named the council members in
their official capacities, the court stated, “naming the council members
individually changed nothing.” 649 So. 2d at 616.
entity.” Id. (quoting Turner v. Houma Mun. Fire & Police Civil
Serv. Bd., 229 F.3d 478, 483 n.7 (5th Cir. 2000)).
continued, “Thus, the claims are in essence claims against the
Board. Because the Court has found that the Board can be sued, the
The Court also finds the Louisiana Supreme Court’s opinion in
LeBlanc v. Thomas instructive. 08-2869 (La. 10/20/09), 23 So. 3d
In that case, the plaintiffs amended the petition to name
the Louisiana State University Health Sciences Center Chancellor
in his official capacity as a defendant.
In determining whether
“[o]fficial-capacity suits  generally represent only another way
of pleading an action against an entity of which an officer is an
Id. at 246 (quoting Kentucky v. Graham, 473 U.S. 159,
The court concluded that for the purposes of a
venue analysis, adding the chancellor in his official capacity
effectively added the board of supervisors as a defendant, thus,
the venue statute was applicable.
Id. (“We therefore conclude,
based on our jurisprudence, that when Plaintiffs amended their
petition and sued Dr. Hollier in his official capacity, they were
really suing the LSU Board of Supervisors.”); see also Batiste v.
Bonin, 06-1352, 2007 WL 1791219, at *3 (W.D. La. June 13, 2007)
(holding that the Lafayette Police Department and thus its Chief
of Police do not have the legal capacity to be sued); Causey v.
Par. of Tangipahoa, 167 F. Supp. 2d 898, 909–10 (E.D. La. Apr. 12,
2001) (dismissing official capacity claims against a detective
because claims against the city were defective); Goodman v. Harris
Cty., 571 F.3d 388, 395 (5th Cir. 2009) (citing Kentucky v. Graham,
473 U.S. 159, 166 (1985)) (“[A]n official-capacity suit is, in all
respects other than name, to be treated as a suit against the
entity. It is not a suit against the official personally, for the
real party in interest is the entity.”).
follows the Bowen analysis and finds that because this is an
official-capacity action, the City Council and Councilpersons “are
analytically the same entity.”
Turner, 2001 WL 561992 at *4
Councilpersons in their official capacity is merely another way of
suing the City Council as a whole. Plaintiffs had the option of
bringing suit against Councilpersons in their individual capacity
- which would have cured any procedural defect – but did not do
so. See Bowen, 649 So. 2d at 616 (“The council members did not
join the suit in their individual capacities as persons but,
Plaintiffs are clearly attempting to circumvent what would be a
itself, 6 and also any immunity that would potentially be available
if they named the Councilpersons in their individual capacities. 7
In Plaintiffs’ opposition briefing regarding immunity, they admit
that suing the Councilpersons is the same as suing the City Council
itself. See Rec. Doc. 12 at 9 (“In this case, Plaintiffs have filed
suit against the Councilpersons in their official capacities. This
suit represent[s] another way of pleading an action against an
entity of which an officer is an agent.” (citations omitted)).
Ultimately, the Court finds that naming the Councilpersons in their
official capacities is essentially a suit against the City Council.
As such, the Court must now determine whether the Mandeville
City Council is a separate and legal juridical entity that has
procedural capacity to sue or be sued. The Louisiana Supreme Court
in Roberts v. Sewage and Water Board of New Orleans set forth an
analysis for considering whether judicial persons in general may
be sued. 92-2048 (La. 3/21/94), 634 So. 2d 341. The Roberts court
[T]he determination that must be made in each particular
case is whether the entity can appropriately be regarded
as an additional and separate government unit for the
particular purpose at issue. In the absence of positive
law to the contrary, a local government unit may be
deemed to be a juridical person separate and distinct
from other government entities, when the organic law
grants it the legal capacity to function independently
Discussed in detail infra at 15.
Plaintiffs state in their opposition to this motion that “because the
Councilpersons have been named in their official, rather than individual,
capacities, neither qualified nor absolute immunity is available.” (Rec. Doc.
12 at 8.)
and not just as the agency or division of another
governmental entity. Such a determination will depend on
an analysis of specifically what the entity is legally
empowered to do.
Id. at 346-47.
“Louisiana courts have consistently held that city councils,
parish sheriff's offices, and city permit offices are not separate
government units with the capacity to sue or be sued.”
of Am., Inc. v. City of Shreveport, 09-0317, 2013 WL 587894, at *4
(W.D. La. Feb. 13, 2013).
The Louisiana Third Circuit in Bowen
applied the Roberts analysis and determined that the City Council
of Lafayette had no capacity to be sued.
See Bowen, 649 So. 2d at
616 (the Lafayette “City Council is not sui juris or juridically
independent of the City of Lafayette. It is not an entity to which
the law attributes personality.”).
The court noted the city is
governed by a Home Rule Charter, authorized by Article VI, section
4 of the Louisiana Constitution of 1974. Id. at 615. The court
The City Council is the legislative branch and governing
authority of the City of Lafayette. As such, it is vested
with all powers of the city except those which are
otherwise provided by law or by the Charter. However, it
is not “an additional and separate government unit” with
the power to institute litigation on its own behalf. The
City Council is a branch or part of the greater corporate
body politic or juridical entity, the City of Lafayette.
The Charter (organic law), which clearly grants the City
Council broad powers, restricts the City Council's legal
capacity to exercise such powers by establishing it as
the legislative branch of the city government. In this
capacity, the City Council may only exercise its powers
as an agency or division of the greater city government.
Id. at 616. Lafayette’s Home Rule Charter did not expressly or
directly state that the City Council had independent authority to
sue or be sued. Id. at 615.
Mandeville City Charter. 8
Subject to the Charter, the City is
necessary, requisite, or proper for the management of its local
affairs.” City of Mandeville Charter, § 1-1.
Although the Charter
grants the City Council broad powers, the Charter also expressly
Mandeville City Charter is a “mayor-council” form of government
meaning that the City Council serves as the legislative branch of
the City government while the mayor is the head of the executive
branch. 9 “In this capacity, the City Council may only exercise its
Councilpersons failed to provide the Court with the City Charter of Mandeville.
However, the Court has determined it may take judicial notice of the Charter as
it is a publically available document. See Batiste v. Bonin, 06-1352, 2007 WL
1791219, at *3 n.4 (W.D. La. June 13, 2007) (taking judicial notice of Home
Rule Charter for the Lafayette City-Parish Consolidated Government and
determining that the Lafayette Police Department was not a juridical person,
thus it and the Chief of Police lacked procedural capacity to be sued); see
also Matter of Waller Creed, Ltd., 867 F.2d 228, n.14 (5th Cir. 1989) (“Though
the City ordinance was never introduced into the record, we take judicial notice
of it. The power of a federal court to take judicial notice of legislative facts
is less constrained than its power to take notice of adjudicative facts.”);
Cinel v. Connick, 15 F.3d 1338, n.6 (5th Cir. 1994) (When considering a 12(b)(6)
motion, a court may refer to matters of public record without converting the
motion into one for summary judgment.).
A copy of the City Charter of Mandeville may be obtained at https://
City of Mandeville Charter, § 1-2. - Form of government.
The plan of government provided by this home rule charter shall be
known as the "mayor-council" form of government. It shall consist
powers as an agency or division of the greater city government.”
Bowen, 649 So. 2d. at 616.
The Charter is also silent as to
whether the City Council itself can independently sue or be sued,
which courts have consistently considered as a factor against
finding procedural capacity.
See id; see also Roy, 984 So. 2d at
194; U.L. Coleman Co. v. Bossier City-Par. Metro. Planning Comm'n,
08-2011, 2009 WL 3518173, at *2 (W.D. La. Oct. 29, 2009) (“[T]he
governmental unit with the power to sue or be sued.
functions as a branch or part of the greater corporate body politic
or juridical entity and does not possess the capacity to be
Plaintiffs have failed to cite any legal authority that
establishes the City Council as a separate, independent juridical
entity capable of being sued.
It is clear to the Court that the
City Council was acting as a legislative agency for the City during
the deliberation and subsequent denial of Plaintiffs’ Port Marigny
project development plan.
The Court finds that the Mandeville City Council is not a
juridical entity with the procedural capacity to sue or be sued.
The City Council is a “branch or part of the greater corporate
body politic or juridical entity, i.e., the city itself,” and is
of an elected council which shall be called the Mandeville Council
and shall constitute the legislative branch of the government and
an elected mayor who shall be the chief executive officer and head
of the executive branch.
not an independent or self-governing entity that possess the
capacity to be sued.
See U.L. Coleman Co., 2009 WL 3518173, at
*2. Plaintiffs emphasize that they have not named the City Council
as a defendant. However, Plaintiffs’ argument fails to acknowledge
procedural capacity to be sued.
Therefore, all claims against
Councilpersons in their official capacities must be dismissed with
Because of the procedural deficiency, it is unnecessary for
the Court to consider Councilpersons’ remaining arguments in its
motion to dismiss.
Motion to Dismiss (Rec. Doc. 6) is GRANTED.
New Orleans, Louisiana this 12th day of April, 2018.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
Plaintiffs’ claims against the City of Mandeville – which was not a party to
the instant motion – may proceed.
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