Badie v. Boh Bros. Construction Company, L.L.C. et al

Filing 63

ORDER AND REASONS granting 53 Motion to Dismiss for Lack of Jurisdiction. Plaintiffs' claims against Defendant Boh Bros. Construction Company, LLC are hereby DISMISSED WITHOUT PREJUDICE. Signed by Judge Susie Morgan on 3/11/2019. (sbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHERMAN BADIE, ET AL.,
Plaintiffs

CIVIL ACTION

VERSUS

NO. 17-12346

BOH BROS. CONSTRUCTION
COMPANY, L.L.C., ET AL.,
Defendants

SECTION: “E”

ORDER AND REASONS
Before the Court is a Motion to Dismiss or, alternatively, a Motion for Summary
Judgment filed by Defendant Boh Bros. Construction Company, LLC (“Boh Bros.”).1
Plaintiffs Sherman Badie and Melantha Rogers oppose the motion.2 Boh Bros. filed a
reply.3 For the following reasons, the Motion to Dismiss is GRANTED.
BACKGROUND
According to the Complaint, Plaintiffs were involved in an automobile accident on
November 12, 2016 while traveling southbound on Louisiana Avenue where it intersects
Prytania Street.4 They claim that, due to an ongoing construction project, the traffic light
that should have been facing their direction of travel was laying face-down on the ground
and inoperative. Plaintiffs filed suit against the U.S. Army Corps of Engineers, bringing
claims pursuant to the Federal Tort Claims Act (“FTCA”).5 Plaintiffs also bring state law

R. Doc. 53.
R. Doc. 56.
3 R. Doc. 62.
4 R. Doc. 1 at ¶ 4.
5 R. Doc. 1 at ¶ 1, 9.
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tort claims against the City of New Orleans, the Sewage and Water Board of New Orleans,
and Boh Bros.6
On April 30, 2018, the Court granted Defendant U.S. Army Corps of Engineers’
unopposed Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1).7 The
Court dismissed Plaintiffs’ claims against the U.S. Army Corps of Engineers under the
FTCA for lack of subject matter jurisdiction.8 On May 1, 2018, the Court granted the
unopposed Motion to Dismiss filed by the City of New Orleans. 9 On May 15, 2018, the
Court granted Plaintiffs’ voluntary Motion to Dismiss the claims against the New Orleans
Sewage and Water Board.10 The only claims remaining in this civil action are Plaintiffs’
state law tort claims against Boh Bros.
On February 19, 2019, Boh Bros. filed the instant Motion to Dismiss, arguing this
Court lacks original subject matter jurisdiction and cannot exercise supplemental
jurisdiction over Plaintiffs’ state law tort claims.11 Plaintiffs argue this Court has subject
matter jurisdiction over their state law tort claims. If the Court finds it does not have
subject matter jurisdiction, the Plaintiffs request the Court exercise its discretion to
remand the case to state court.12

R. Doc. 1 at ¶ 9. Although the Complaint does not state the specific Louisiana law under which they are
seeking relief against these defendants, the Complaint establishes that the claim against the City of New
Orleans, the Sewage and Water Board of New Orleans, and Boh Bros. is a tort claim for negligence.
7 R. Doc. 36.
8 Id.
9 R. Doc. 37.
10 R. Doc. 41.
11 The Court notes that neither party suggests the Court has diversity subject matter jurisdiction, pursuant
to 28 U.S.c. § 1332.
12 R. Doc. 56.
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LEGAL STANDARD
“Federal courts are courts of limited jurisdiction; without jurisdiction conferred by
statute, they lack the power to adjudicate claims.” 13 A motion to dismiss under Federal
Rules of Civil Procedure 12(b)(1) challenges a federal court’s subject-matter jurisdiction. 14
Under Rule 12(b)(1), “[a] case is properly dismissed for lack of subject matter jurisdiction
when the court lacks the statutory or constitutional power to adjudicate the case.” 15 “Lack
of subject-matter jurisdiction may be found in the complaint alone, the complaint
supplemented by the undisputed facts as evidenced in the record, or the complaint
supplemented by the undisputed facts plus the court’s resolution of the disputed facts.” 16
LAW AND ANALYSIS
Pursuant to the FTCA, 28 U.S.C. § 1346, federal district courts have original
jurisdiction over any civil action against the United States for the negligent acts of its
employees.17 Plaintiffs filed their Complaint in this Court, invoking the Court’s original
subject matter jurisdiction over their claims against the U.S. Army Corps of Engineers
pursuant to the FTCA.18
Under 28 U.S.C. § 1367, when the district court has original jurisdiction, the
district court may also exercise supplemental jurisdiction over “all other claims that are
so related” to the claims over which the court has original jurisdiction “that they form part
of the same case or controversy.” In addition to their claims against the U.S. Army Corps

In re FEMA Trailer Formaldehyde Products Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281, 286 (5th
Cir. 2012).
14 See FED. R. CIV. P. 12(b)(1).
15 Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (internal
quotation marks and citation omitted).
16 In re FEMA, 668 F.3d at 287.
17 28 U.S.C. § 1346.
18 R. Doc. 1.
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of Engineers pursuant to the FTCA, Plaintiff’s brought state law tort claims against other
Defendants, including Boh Bros.19
Under 28 U.S.C. § 1367, a district court has discretion to exercise supplemental
jurisdiction over state law claims when federal question jurisdiction is proper and the
state law claims derive from a common nucleus of operative facts.20 However, when a
district court dismisses all federal claims for lack of subject matter jurisdiction pursuant
to Rule 12(b)(1), it does not have discretion to exercise supplemental jurisdiction over
related state law claims.21 “Without original jurisdiction on the federal claim, the court
cannot assert jurisdiction over state-law claims, even if those claims derive from a
common nucleus of operative fact.”22
The Court dismissed Plaintiff’s claims against the U.S. Army Corps of Engineers
under the FTCA for lack of jurisdiction, pursuant to Rule 12(b)(1). As a result, the Court
had no original federal question jurisdiction to which the state law claims could attach.
Without such original jurisdiction, the Court cannot exercise supplemental jurisdiction
over Plaintiff’s state law tort claims against Boh Bros. Because this civil action was filed
in federal court, the Court cannot remand the case to state court.23
Accordingly;
IT IS ORDERED that the Motion to Dismiss filed by Defendant Boh Bros.
Construction Company, LLC be and hereby is GRANTED.24 Plaintiffs’ claims against

Id.
Arena v. Graybar Electric Co., 669 F.3d 214, 221 (5th Cir. 2012).
21 Cohen v. Postal Holdings, LLC, 873 F.3d 394, 399 (2d Cir. 2017).
22 Arena, 669 F.3d at 222.
23 See 28 U.S.C. § 1447(a); Washpon v. Erratt, No. 6:17-CV-80-RP, 2017 WL 8182679, at *1 (W.D. Tex. Aug.
15, 2017) (“[W]hen a case is originally filed in federal court, rather than removed from state court, the
appropriate action upon finding a lack of jurisdiction is dismissal without prejudice, not remand.”).
24 R. Doc. 34.
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Defendant Boh Bros. Construction Company, LLC are hereby DISMISSED WITHOUT
PREJUDICE.
New Orleans, Louisiana on this 11th day of March, 2019.
_____________________ ________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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