New River Shopping Center, LLC v. Villenurve et al

Filing 41

RULING denying 6 Motion to Dismiss.. Signed by Judge Shelly D. Dick on 02/01/2018. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISANA

NEW RIVER SHOPPING CENTER,
LLC.

CIVIL ACTION

VERSUS

17-281-SDD-RLB

VIVIAN G. VILLENURVE
AND
MARGARET C. KERNAN
RULING
The matter before the Court is the Motion to Dismiss Pursuant to Fed. R. Civ. P.
12(b)(1) and 12(b)(6) filed by Defendants, Vivian G. Villenurve and Margaret C. Kernan
(“Defendants”).1

The Plaintiff, New River Shopping Center, LLC. (“New River” or

“Plaintiff”) has filed an Opposition.2 For the following reasons, Defendants’ motion will be
DENIED.
I.

PROCEDURAL AND FACTUAL HISTORY3
On May 1, 2017, New River filed a Complaint4 seeking an emergency motion for

temporary restraining order and preliminary injunction because the Defendants allegedly
breached their lease agreement on immovable property located in Ascension Parish,
Louisiana.5 New River also prayed for the entry of a permanent injunction following a trial
on the merits.

Defendants filed the present Motion to Dismiss on May 2, 2017.6 The

Court denied New River’s emergency motion for temporary restraining order in a Ruling

1

Rec. Doc. 6.
Rec. Doc. 31.
3
See Rec. Doc. 15 for a full recitation of the factual background.
4
Rec. Doc. 1.
5
Rec. Doc. 2.
6
Rec. Doc. 6.
2

42836 
Page 1 of 8 

issued on May 5, 2017.7 The Court conducted a hearing on New River’s Motion for
Preliminary Injunction on May 11, 2017,8

following which, New River’s Motion for

Preliminary Injunction9 was denied.
While the subject Motion was pending, the Defendants filed a “Rule to Show Cause
Why Possession Should Not be Delivered in Docket No. 118, 875,” in the 23rd Judicial
District Court of Ascension Parish, Louisiana,10 which was removed to this Court and
assigned docket number 3:17-cv-00303.11

New River met the claims asserted in

3:17cv00303 with a Motion for Summary Judgment.12 New River’s Motion for Summary
Judgment remains pending. Defendants’ pending motion asks the Court to dismiss New
River’s Complaint because, “[Plaintiff] has failed to establish that it is entitled to a
temporary restraining order, preliminary injunction, or permanent injunction.”13 Given that
the Court has denied New River’s motion for a temporary restraining order and a
preliminary injunction the only salient portion of Defendants’ Motion to Dismiss pertains
to New River’s motion for permanent injunction. Defendants’ move for dismissal under
12(b)(1) and 12(b)(6).
II.

LAW AND ANALYSIS
A. Motion to Dismiss Under Rule 12(b)(6)
When deciding a Rule 12(b)(6) motion to dismiss, “[t]he ‘court accepts all well-

7

Rec. Doc. 15.
Rec. Doc. 29.
9
See Id.
10
See Rec. Doc. 19-1, p. 2.
11
17-cv-00303-SDD-EWD, Rec. Doc. 5.
12
Id. at Rec. Doc. 12.
13
Rec. Doc. 6-1, p. 1.
8

42836 
Page 2 of 8 

pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”14 The
Court may consider “the complaint, its proper attachments, documents incorporated into
the complaint by reference, and matters of which a court may take judicial notice.”15 “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.’”16 In Twombly, the United States Supreme
Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6)
motion to dismiss. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.”17 A complaint is also insufficient if it
merely “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”18 However,
“[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.”19 In order to satisfy the plausibility standard, the plaintiff must show “more than
a sheer possibility that the defendant has acted unlawfully.”20 “Furthermore, while the
court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable

14

In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007)(quoting Martin K. Eby Constr.
Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
15
Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011) (quoting Dorsey v. Portfolio
Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008)).
16
In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Martin K. Eby Constr. Co. v. Dallas
Area Rapid Transit, 369 F.3d at 467).
17
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and brackets omitted)
(hereinafter Twombly).
18
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted)
(hereinafter “Iqbal”).
19
Twombly, 550 U.S. at 570.
20
Iqbal, 556 U.S. at 678.

42836 
Page 3 of 8 

to the plaintiff.’”21 On a motion to dismiss, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.”22
B. Motion to Dismiss Under Rule 12(b)(1)
“A motion to dismiss under Rule 12(b)(1) is analyzed under the same standard as
a motion to dismiss under Rule 12(b)(6).”23 Pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, a complaint is subject to dismissal if a plaintiff fails “to state a
claim upon which relief can be granted.” “To survive a Rule 12(b)(6) motion to dismiss,
the plaintiff must plead ‘enough facts to state a claim relief that is plausible on its face.’”24
However, when ruling on a Rule 12(b)(1) motion, “the court is permitted to look at
evidence in the record beyond simply those facts alleged in the complaint and its proper
attachments.”25 Ultimately, a motion to dismiss for lack of subject matter jurisdiction
should be granted only if it appears certain that the plaintiff cannot prove any set of facts
in support of his claim which would entitle plaintiff to relief.”26
C. Defendants’ 12(b)(1) Argument
The Defendants argue that New River’s petition for permanent injunction is an
attempt to “defeat a summary action for eviction by injection foreign issues in an effort to
convert a summary proceeding to an ordinary proceeding.”27

Defendants, citing no

21

Taha v. William Marsh Rice University, 2012 WL 1576099 at *2 (quoting Southland Sec. Corp. v. Inspire
Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir. 2004).
22
Twombly, 550 U.S. at 556 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d
209 (1986)).
23
Hall v. Louisiana, et. Al.., 974 F.Supp.2d 978, 985 (M.D. La. Sep. 30, 2013)(citing Benton v. U.S.., 960
F.2d 19, 21 (5th Cir. 1998)).
24
Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
25
Ambraco, Inc. v. Bossclip B.V., 570 F.3d 233, 238 (5th Cir. 2009).
26
Ramming, 281 F.3d at 161 (citing Home Builders Ass’n of Miss., Inc. v. City of Madison Miss., 143 F.3d
1006, 1010 (5th Cir. 1998)).
27
Rec. Doc. 6-1, pp.1-2.

42836 
Page 4 of 8 

controlling jurisprudence, further aver that “many federal counts choose to abstain from
summary eviction proceedings and landlord tenant disputes in general on the principles
of comity and federalism as to hear these cases would not only overburden the federal
system but would also completely emasculate the state structure for dealing with such
disputes.”28
New River presented the same argument in their Motion for Remand in 17-cv303.29 In the Report and Recommendation,30 which this Court adopted,31 the Magistrate
Judge stated, “district courts in Louisiana have on multiple occasions considered whether
federal diversity jurisdiction may be exercised in removed eviction proceedings based on
consideration of the value of the right of possession.”32 The Magistrate Judge concluded
the Report and Recommendation by holding, “Given this court’s duty to adjudicate
controversies over which it has original subject matter jurisdiction, and Plaintiffs’ failure to
provide controlling authority requiring this court to abstain from exercising such
jurisdiction, abstention here would be inappropriate [].”33 Given that the parties, factual
background, and legal arguments in the present motion are identical to those previously
addressed in the Report and Recommendation in 17-cv-303,34 a related proceeding,35
the Court finds no reason to deviate from the its previous determination that it maintains
jurisdiction over this case and controversy. Accordingly, the Defendants’ 12(b)(1) motion
to dismiss is DENIED.
28

Id. at p. 2, citing Glen 6 Assocs., Inc v. Dedaj, 770 F.Supp. 225, 229 (S.D.N.Y. 1991).
No. 17-cv-00303-SDD-EWD, Rec. Doc. 3-1, pp. 2-4.
30
Id. at Rec. Doc. 11.
31
Id. at Rec. Doc. 19.
32
Id. at Rec. Doc. 11, p. 12.
33
Id. at p. 13.
34
Id.
35
Id. at Rec. Doc. 5.
29

42836 
Page 5 of 8 

D. Defendants’ 12(b)(6) Argument
The Defendants argue that New River’s suit should be dismissed pursuant to Rule
12(b)(6) because:
[…] Petitioner has failed to make the extraordinary showing to
justify a temporary restraining order or preliminary injunction
because he has not established: a likelihood of success on
the merits of his claim; there is a substantial likelihood of
success on the merits of his claim; there is a substantial threat
that failure to grant the injunction will result in irreparable
injury; the threatened injury outweighs any damage that the
injunction will cause the adverse party; and the injunction will
not adversely affect the public interest.36
Defendants have provided no jurisprudential support for their argument that a petitioner
who fails to secure a temporary restraining order and a preliminary injunction should also
have their petition for a permanent injunction dismissed pursuant to 12(b)(6). To survive
a 12(b)(6) motion New River need only plead “enough facts to state a claim to relief that
is plausible on its face.”37 Evaluating the sufficiency of a complaint on a 12(b)(6) motion
is not “a fact-based question of law”.38 On a 12(b)(6) motion the Court may only determine
if there is a sufficient factual basis for the relief sought, in this instance a permanent
injunction following a trial on the merits.
In 53 paragraphs New River details Defendants’ actions which it alleges violates
their lease agreement.39 The Court must accept these facts as true.40 Specifically, New
River alleges that Defendants seek the invalidation of their lease to “eliminate the middle

36

Rec. Doc. 6-1, p. 3.
In re Katrina Canal Breaches Litigation, 495 F.3d at 205 (quoting Martin K. Eby Constr. Co. v. Dallas
Area Rapid Transit, 369 F.3d at 467).
38
Twombly, 556 U.S. at 674.
39
Rec. Doc. 1, pp. 1-19.
40
See supra n. 13.
37

42836 
Page 6 of 8 

man so that Defendants could receive higher rents directly from New River’s
sublessees.”41 These allegations state a plausible claim under Louisiana Civil Code
Article 1997 (bad faith breach of an obligation),42 and Louisiana’s abuse of rights
doctrine.43 In addition to monetary damages, New River seeks a permanent injunction
following a trial on the merits.44 Under Louisiana jurisprudence a permanent injunction
may be awarded, “to prevent the occurrence of actions in the future which are unlawful
or injurious and pose irreparable injury.”45

New River’s factual allegations state a

plausible claim of a future violation of a lawful lease, and Louisiana jurisprudence provides
for permanent injunctive relief in such a circumstance. Accordingly, the 12(b)(6) Motion
shall be DENIED.

41

Rec. Doc. 1, p. 18, ¶ 51.
La. C.C. § 1997.
43
“In its origin, the abuse of rights doctrine was applied to prevent the holder of rights or powers from
exercising those rights exclusively for the purpose of harming another, but today most courts in civil law
jurisdictions will find an act abusive if the predominate motive for it was to cause harm …The doctrine has
been applied where an intent to harm was not proven, if it was shown that there was no serious and
legitimate interest in the exercise of the right worthy of judicial protection. Protection or enforcement of a
right has been denied when the exercise of the right is against moral rules, good faith or elementary
fairness.” Coleman v. School Bd. Of Richland Parish, 418 F.3d 511, 524 (5th Cir. 2005)(quoting Ill Cent.
Gulf R.R. Co. v. Int’l Harvester Co., 368 So.2d 1009, 1014 (La. 1979).
44
Rec. Doc. 1, p. 28.
45
Hairford v. Perkins, 86-1190; 520 So.2d 1053, 1059 (La.App. 3 Cir. 1987)(citing Acadian Heritage Realty
v. City of Lafayette, 451 So.2d 17 (La.App.3 Cir. 1984), writ den., 452 So.2d 696 (La. 1984); Louisiana
Livestock Sanitary Board v. Prather, 301 So.2d 688 (La.App. 3 Cir. 1974)).
42

42836 
Page 7 of 8 

III.

CONCLUSION
For the reasons stated above, Defendants’ Motion to Dismiss to Fed. R. Civ. P.

12(b)(1) and 12(b)(6) is hereby DENIED.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on February 1, 2018.

S
JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

42836 
Page 8 of 8