Piazza's Seafood World, LLC v. Odom

Filing 151

RULING: Both Motions 121 and 124 for Summary Judgment are DENIED. This matter will be set for pretrial conference. Signed by Judge James J. Brady on 5/3/2012. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
PIAZZA’S SEAFOOD WORLD, LLC
CIVIL ACTION
VERSUS
NO. 07-413-JJB
BOB ODOM, COMMISSIONER OF
AGRICULTURE FOR THE STATE
OF LOUISIANA
RULING ON MOTIONS
This matter is before the court on a defendant’s motion (doc. 121) for
summary judgment and plaintiff’s motion (doc. 124) for partial summary judgment.
Both motions are opposed. There is no need for oral argument.
Background
Plaintiff Piazza Seafood World, LLC, is a company that imports seafood from
China and Vietnam and distributes its products in Louisiana and elsewhere.
Defendant Bob Odom, acting as Commissioner of Agriculture and Forestry for the
State of Louisiana,1 seized large quantities of seafood from Piazza Seafood
pursuant to a regulation promulgated and enforced by his department. The
regulation at issue is La. Admin. Code 7:XXXV.511 (“the Regulation”), which
provides that “[n]o seafood may be held, offered or exposed for sale, or sold in
Louisiana if such seafood contains Fluoroquinolones.” Section 511, Paragraph B.
The Regulation establishes procedures for sampling, testing and certification
1

The current Commissioner is Dr. Mike Strain.

1

of the test results that apply to seafood coming from specified “geographic areas”
for the presence of Fluoroquinolones prior to being offered for sale in Louisiana.
Section 511, Paragraph E. The Regulation specifically applies to “geographic
areas” designated by the Commissioner, pursuant to the Administrative Procedure
Act, as being areas “where Fluoroquinolones is being used on or found in food
processing animals or in products from such animals.” Section 511, Paragraphs C
and D. By subsequent “Emergency Declaration,” Odom declared “the country of
China” (in addition to the country of Vietnam) to be such a geographic area subject
to the sampling and testing provisions of the Regulation.
Piazza Seafood filed this action challenging the Regulation on the basis that
it facially discriminates against foreign commere and violates the Commerce
Clause. Plaintiff additionally claimed that Odom acted outside the scope of his
authority under state law in promulgating the regulation. In June of 2007, this court
certified the state law issue to the Louisiana courts under the Pullman doctrine.2
The state district court then heard the matter and ruled that Odom had no authority
under the Louisiana Constitution or statutes to promulgate the Regulation. On
appeal, the state appellate court affirmed and the decision is now final.3

2

Railroad Commission v. Pullman Co., 312 U.S. 496 (1941).

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The state appellate court affirmed the trial court’s preliminary injunction ruling,
finding that defendant did not have the authority to regulate the content of imported seafood
under Louisiana law. Piazza's Seafood World, LLC, v. Odom, 6 So.3d 820 (La. App. 1 Cir.
2008). Thereafter, on a motion for permanent declaratory and injunctive relief, the district
judge re-affirmed his findings. No appeal has been taken from that judgment.

2

Thereafter, the case was reopened in this court (doc. 44); and the claims
were narrowed (doc. 65) to those for damages against Odom in his individual
capacity. Piazza moved (doc. 71) for summary judgment to dismiss Odom’s defense
of qualified immunity. The salient issue was whether Odom could raise qualified
immunity because the state court had determined that Odom had acted beyond his
statutory authority under state law in enacting the Regulation. The court determined
(doc. 118) that the question for qualified immunity purposes was not whether
Odom’s action were ultra vires, but rather whether a reasonable official in Odom’s
position would have known that he was acting beyond the scope of his authority.
The court determined that such an official would have reasonably believed that he
was empowered to regulate the content of seafood in the narrow context at hand
(that is, for public health purposes as part of a cooperative endeavor with the
LDHH).
Now Odom moves for summary judgment arguing that the burden has shifted
to plaintiff to create a genuine issue as to whether Odom actions were objectively
unreasonable in light of clearly established constitutional law. Odom argues that he
reasonably believed he had constitutional authority to promulgate the Regulation,
just as he believed that he had state statutory authority to do so.
In opposition, Piazza argues that Odom violated the following “clearly
established” constitutional rights:
“the right to be free from state regulation that discriminates against
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foreign commerce, the right to be free from direct state regulation of
interstate commerce, the right to be free from the search and seizure
of one’s property without probable cause or judicial warrant, and the
right to a hearing before one is deprived of property rights.” Doc. 130,
at p. 2.

Additionally, Piazza brings its own motion (doc. 124) for partial summary
judgment on its claim that Odom violated the Commerce Clause, Article 1, Section
8, clause 3 of the United States Constitution. Piazza contends that the Regulation
discriminates against foreign products on its face by treating domestic products
differently from foreign products. Piazza, 448 F.3d 744, 750-51 & n. 12.
Having reviewed the Regulation, the court finds that it has general application
to all seafood being sold in Louisiana. However, it does treat seafood imported from
China and Vietnam differently from domestically produced seafood in as much as
it only imposes sampling, testing and certification procedures upon “geographic
areas” where Fluoroquinolones have been found in food products and the only
“geographic areas” designated are the countries of Vietnam and China. The court
finds that this constitutes discrimination “on the face” of the Regulation.4
Consequently, the court agrees with Piazza that Odom must demonstrate
that the Regulation served “a legitimate local purpose” that could not have been
“adequately served by reasonable non-discriminatory alternatives.” Piazza, 448

4

Odom’s argument that he did not personal participate in the alleged violations is
inapplicable to the claim that the Regulation discriminates on its face; there is no dispute
that Odom was involved in promulgating the Regulation.

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F.3d at 750-51. However, the court finds that there are genuine issue of material
fact relative to whether the Regulation advanced a legitimate local purpose that
could not be adequately served by reasonable nondiscriminatory alternatives. New
Energy Co. of Indian v. Limbach, 486 US 269, 278 (1988). Likewise, the court finds
that the material facts have not been sufficiently developed as to the claim that
Odom directly regulated interstate commerce. Consequently, Piazza’s motion for
summary judgment will be denied.
As to Odom’s motion for summary judgment on the basis of qualified
immunity, the court rejects the underlying notion that its has previously ruled that all
of Odom’s actions were objectively reasonable under clearly established law at the
time.

The court simply held that an official in Odom’s position would have

reasonably believed that he was empowered to regulate the content of seafood in
the context of his authority under state law (that is, for public health purposes as
part of a cooperative endeavor with the LDHH). The court made no determination
as to any other aspect of the qualified immunity defense and regrets that it failed to
make this abundantly clear in its last ruling.
The court finds that summary judgment is not appropriate on the qualified
immunity defense. There are factual and legal aspects that remain to be fleshed out
by the parties, e.g., how does Odom’s claim that he relied on the advice of counsel

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factor in the qualified immunity defense?5 Odom’s reply brief belatedly addresses
the “clearly established law” relative to the claims based upon the Fourth
Amendment and Due Process Clause. In short, the briefs raise more questions
than they answer.
Accordingly, both motions (docs. 121 and 124) for summary judgment are
hereby DENIED. This matter will be set for pretrial conference.
Baton Rouge, Louisiana, May 3, 2012.

JAMES J. BRADY, JUDGE
MIDDLE DISTRICT OF LOUISIANA

5

Odom raises the issue but neither side adequately briefs it. The court suggests
counsel refer to Lawrence v. Reed, 406 F3d 1224 (10th Cir. 2005) as a starting point.

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