Fetty v. The Louisiana State Board of Private Security Examiners, et al.
Filing
52
RULING AND ORDER granting in part and denying in part 42 MOTION to Dismiss Plaintiffs' Amended Complaint Pursuant to F.R.C.P. 12(B)(5) and 12(B)(6). The motion is granted in that the following claims are DISMISSED WITHOUT PREJUDICE (1) Plaintiffs § 1983 claims; (2) Plaintiffs emotional distress claims; and (3) Plaintiffs claims for punitive damages. In all other respects, the motion is DENIED. Amended Pleadings due by 2/25/2020. Signed by Judge John W. deGravelles on 1/30/2020. (SWE)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
NICHOLAS A. FETTY, ET AL.
CIVIL ACTION
VERSUS
NO. 18-517-JWD-EWD
THE LOUISIANA STATE BOARD OF
PRIVATE SECURITY EXAMINERS, ET
AL.
RULING AND ORDER
This matter comes before the Court on the Motion to Dismiss Plaintiffs’ Amended
Complaint Pursuant to F.R.C.P. 12(B)(5) and 12(B)(6) (Doc. 42) filed by Defendants Ritchie
Rivers, Mark A. Williams, Marian H. Pierre, Wilbert Sanders, Jr., Ector Echegoyen, Maria V.
Landry, Edward Robinson, Sr., Durell P. Pellegrim, and Misty Finchum (collectively, the “Board
Members” or “Defendants”). Plaintiffs Nicholas A. Fetty (“Fetty”) and Delta Tactical, LLC
(“Delta Tactical” or “Delta”) (collectively, “Plaintiffs”), oppose the motion. (Doc. 45.) The Board
Members filed a reply. (Doc. 49.) Oral argument is not necessary. The Court has carefully
considered the law, the facts in the record, and the arguments and submissions of the parties and
is prepared to rule. For the following reasons, Defendants’ motion is granted in part and denied in
part.
I.
Relevant Factual Background
A. Introduction
The following factual allegations are taken from Plaintiffs’ Amended and Supplemental
Complaint (“Amended Complaint” or “Am. Compl.”) (Doc. 27). They are assumed to be true for
purposes of this motion. Thompson v. City of Waco, Tex., 764 F.3d 500, 502–03 (5th Cir. 2014).
Plaintiff Fetty is the sole and managing member of Delta Tactical. (Am. Compl. ¶ 7, Doc.
27.) “Plaintiffs are engaged in the business of providing private security agents and security
services” in Louisiana. (Id. ¶ 6.) This requires a license from the state. (Id.)
Pursuant to La. Rev. Stat. Ann. § 37:3271 et seq. (specifically § 37:2373), Louisiana
established the Louisiana State Board of Private Security Examiners (the “Board”) as an agency
within the Department of Public Safety and Corrections (“DPSC”). The Board requires private
security agents and businesses to satisfy certain statutory and administrative requirements to obtain
a license to engage in this practice. (Am. Compl. ¶ 6, Doc. 27.)
Fabian Blache “is responsible for supervising all employees of the Board, performing all
administrative duties of the Board, supervising all inspectors, performing administrative
inspections, and performing any duties as may be prescribed by the Board for the proper
administration of the practice of private security agents and businesses.” (Id. ¶ 5(B).) Again, the
Board Members include Ritchie Rivers, Mark A. Williams, Marian H. Pierre, Wilbert Sanders, Jr.,
Ector Echegoyen, Maria V. Landry, Edward Robinson, Sr., Durell P. Pellegrin, and Misty
Finchum. (Id. ¶ 5(C).) LeBlanc is the Secretary of DPSC. (Id. ¶¶ 5(A), 6.) Blache, the Board
Members, LeBlanc, and Landry have all been named as defendants, but this ruling deals only with
the instant motion to dismiss brought by the Board Members. 1 (Doc. 38.)
According to the Amended Complaint, “Fetty and/or Delta Tactical is Licensee of the [the
Board] having been issued license number 0966 thereby on March 22, 2017.” (Am. Compl. ¶ 7,
Doc. 27.) This suit involves Plaintiffs’ loss of that license. In short, Plaintiffs claim that
1
Defendants Landry and LeBlanc previously filed a motion to dismiss (Doc. 34) which this Court granted in part and
denied as moot in part. (Doc. 44.) Further, Defendant Blache filed a motion to dismiss (Doc. 38) which the Court also
granted in part and denied in part. The Court gave Plaintiffs twenty-eight (28) days from when the Court issued
rulings on the pending motions to dismiss (including the instant motion) in which to file a second amended complaint
to cure any deficiencies. Thus, that deadline will commence with the filing of this ruling.
2
Defendants have deprived Plaintiffs of their rights under the Fourteenth Amendment to the United
States Constitution and Article I, Sections 2 and 24 of the Louisiana Constitution of 1974. (Id. ¶
6.)
B. The Notice and Cease and Desist Order
On October 16, 2017, the Board, through Blache, issued a “Notice of Revocation of
Company License Number 0966” (the “Notice”), which “purportedly revoked” Plaintiffs’ license.
(Am. Compl. ¶ 8, Doc. 27.) The Notice to Delta allegedly said, “[T]his letter serves to notify you
that pursuant to LSA – R.S. 37:3289(A)(9), the [Board] is revoking your company license to
engage in the private security business in Louisiana . . .” (Id.)
Plaintiffs further allege in the Amended Complaint (sic throughout):
Additionally, on October 16, 2017, the [Board], purportedly acting through Blache,
issued a “Cease and Desist Order” ordering that Delta and/or Fetty nor Delta
Technical has been served with the Cease and Desist Order as required by LSA –
R.S. 37:3293 and/or LAC, Title 46, Part LIX, Chapter 6, ¶ 601, and/or Chapter 9,
§ 901. . . . The Cease and Desist Order directed to Delta to “forthwith to CEASE &
DESIST from engaging in the contract security business within the State of
Louisiana.”
(Id. ¶¶ 9–10.)
Plaintiffs claim that both the Notice and the Cease and Desist Order are illegal and
unlawful. (Id.¶ 11.) Plaintiffs specifically point to La. Rev. Stat. Ann. § 37:3288, which provides
for a criminal penalty and revocation of these licenses for those committing “egregious acts” “after
reasonable notice and opportunity for a fair and impartial hearing held in accordance with the
Administrative Procedure Act.” (Am. Compl. ¶ 12 (quoting La. Rev. Stat. Ann. § 37:3288), Doc.
27.) Plaintiffs also quote provisions of the Louisiana Administrative Code. The first provides
that, “before revoking or suspending a license or registration card, or imposing fines or costs over
$500, the board will afford the applicant an opportunity for a hearing after reasonable notice of not
3
less than 15 days,” except in certain inapplicable cases. (Id. ¶ 13 (quoting La. Admin. Code tit. 46,
Pt LIX, § 601(A)).) The second regulation provides that any person who has violated a provision
of La. Rev. Stat. Ann. § 37:3270 et seq. or other applicable rule is subject to a penalty or suspension
or revocation of his license, but this occurs “after reasonable notice and opportunity for a fair and
impartial hearing held in accordance with the Administrative Procedure Act[.]” (Id. ¶ 14 (quoting
La. Admin. Code tit. 46, Pt LIX, § 901).) Plaintiffs allege that, contrary to these laws, they were
both denied notice and an opportunity for a fair and impartial hearing before the Notice and Cease
and Desist Order were issued. (Id. ¶¶ 15–16.)
C. The Sham Hearing
On October 31, 2017, Plaintiffs requested a “fair and impartial hearing, . . . notwithstanding
the requirement” that this should have happened anyway before the Board’s actions. (Am. Compl.
¶ 17, Doc. 27.) In response, the Board “scheduled a purported fair and impartial hearing” on
Plaintiffs’ “license revocation for Thursday, January 25, 201[8].” (Id. ¶ 18.)
Delta had two employees—Dalton Miller and Colt Miller. (Id. ¶ 19.) According to
Plaintiffs, since the revocation and Cease and Desist Order, “Colt had numerous and significant
contact with Blache.” (Id. ¶ 20.) The Amended Complaint alleges: “On information and belief,
Colt made application to the [Board] for licensure, which was been approved (sic), pending
compliance with the [Board’s] insurance requirements.” (Id. ¶ 21.)
On November 17, 2017, Colt and Dalton had a conversation, during which “Colt
volunteered and told Dalton that he, [Colt,] had talked to Blache about the hearing requested by
Fetty, that the hearing is not about whether or not Fetty loses his license, [and] that it would be
about whether Fetty could ever get another license.” (Am. Compl. ¶¶ 22–23, Doc. 27.) Colt also
advised Dalton “that Blache had already talked to the . . . Board [M]embers, and that the Board
4
had already decided that Fetty’s license would be revoked, and that Fetty would not be getting his
license back.” (Id. ¶ 24.) According to Plaintiffs, “Colt further advised Dalton that the hearing
before the . . . Board was merely a formality intended, only, to satisfy the due process
requirements.” (Id. ¶ 25.)
On December 27, 2017, Plaintiffs filed a “Motion for En Banc Recusal of Members of the
[Board] with supporting Memorandum.” (Id. ¶ 26.) Counsel for both Plaintiffs and the Board
agreed to convert the January 25, 2018, hearing from one dealing with the revocation and order to
a limited hearing on Plaintiffs’ motion for recusal. (Id. ¶ 27.) On January 25, 2018, the Board
held this hearing. (Id. ¶ 28.) The motion was denied. (Id.)
D. Plaintiffs’ Claims
Plaintiffs assert that Louisiana’s Private Security Regulatory and Licensing Law, “as
applied to Delta, currently prevents and continually prevents [Plaintiffs] from fulfilling contracts
for services, [and] employing competent, experienced private security agents.” (Am. Compl. ¶ 32,
Doc. 27.) All Defendants have caused Fetty to terminate Delta’s most qualified agents and
contracts and to spend considerable resources to obtain new ones. (Id. ¶ 33.) Because of all
Defendants, “Delta cannot effectively operate its business” and cannot “offer private security
services to its customers.” (Id. ¶ 34.) Delta has also suffered a loss of goodwill with its customers.
(Id. ¶ 35.)
Plaintiffs’ first claim is a violation of procedural due process under the federal and state
constitutions. (Id. ¶¶ 36–50.) Plaintiffs complain about Blache’s ex parte communications as well
as the failure of the Board to provide a fair and impartial hearing. (Id. ¶¶ 45–48.) Specifically,
after citing the law requiring recusal of officers and agency members who “cannot accord a fair
and impartial hearing or consideration[,]” (Am. Comp. ¶ 44, Doc. 27 (citing La. Rev. Stat. Ann. §
5
49:960(B))), Plaintiffs allege, “The [Board] was placed in a compromised position by Blache in
comments attributed to him, and found itself in a quandary through no fault of its own.
Notwithstanding the ‘well has been poisoned’, and the Board cannot drink therefrom without
adverse effects befalling Fetty,” (id. ¶ 45). According to Plaintiffs, they were entitled to an en
banc recusal of the Board (1) because “Fetty could not, in any circumstance, receive a fair and
impartial hearing mandated by due process, if presided over by the . . . Board[,]” (id. ¶ 46) and (2)
because:
[w]hile the [Board] members may have believed that they can disregard what
Blache was alleged to have done, nonetheless, any possible scenario other than full
en banc recusal and withdrawal of the Board would and did project an appearance
of partiality and impropriety, and also call into question whether the . . . Board was
subliminally biased by Blache’s alleged ex parte communication.
(id. ¶ 47.) Plaintiffs maintain that the “failure of the Board to withdraw, en banc, compromised
the public’s confidence in the adversarial system to receive a fair and impartial hearing, and eroded
the integrity of the administrative process.” (Id. ¶ 48.) Plaintiffs further assert that the Louisiana
laws at issue, as applied, deprived Plaintiffs of their federal and state rights to procedural due
process. (Id. ¶ 49.) Plaintiffs claim continuing irreparable harm from Defendants’ conduct and
seek injunctive relief. (Id. ¶ 50.)
Plaintiffs also assert that Defendants violated Article I, Section 24 of the Louisiana
Constitution. (Am. Compl. ¶ 52, Doc. 27.) This section provides: “The enumeration in this
constitution of certain rights shall not deny or disparage other rights retained by the individual
citizens of the state.” La. Const. Art. I, § 24. Plaintiffs maintain that this provision “protects
Plaintiffs’ right to economic liberty—that is, their right to earn a living and conduct business free
from unreasonable governmental interference.” (Am. Compl. ¶ 53, Doc. 27.) Plaintiffs plead that
Louisiana’s Private Security Regulatory Law, as applied, has “no real and substantial relationship
6
to public health, safety, or welfare” and thus violated Article I, Section 24. (Id. ¶ 57.) According
to Plaintiffs, on September 22, 2017, Blache drafted a letter to Plaintiffs alleging that “Fetty had
stipulated to an administrative penalty and fine in the amount of . . . $5,000.00[] . . . , for the same
alleged violations which formed the basis for the revocation and cease and desist order.” (Id. ¶ 58.)
If Plaintiffs had paid this fine, they would have been allowed to continue to operate. (Id. ¶ 59.)
Meanwhile, Plaintiffs claim that “any and all necessary corrective action identified in Blache’s
writing had been completed.” (Id. ¶ 60.) Plaintiffs say that the Louisiana laws at issue, as applied,
advance no legitimate governmental interest and are arbitrary and capricious. (Id. ¶¶ 61–62.)
Again, Plaintiffs seek injunctive relief. (Id. ¶ 64.)
Plaintiffs pray for the following: (a) a declaration that La. Rev. Stat. §§ 37:3270 et seq. and
its implementing regulations are unconstitutional “when applied to Plaintiffs’ practice of providing
private security agents and private security services;” (b) a permanent injunction prohibiting
Defendants from enforcing Louisiana’s Private Security Regulatory Law and regulations against
Plaintiffs’ practice and services; (c) an award of damages for Defendants’ violations of the state
and federal constitutions; and (d) “all other relief to which Plaintiffs may show themselves
entitled.” (Am. Compl., Doc. 27 at 17.) Plaintiffs also seek a number of separate items of damages,
including:
Pecuniary losses; loss of good will; mental anguish and/or mental pain, humiliation,
embarrassment, inconvenience, emotional distress, loss of enjoyment of life, and
other non-pecuniary losses – past, present and future; punitive damages in the
amount of $2,315,000.00; any other damages which may be proved at a trial on the
merits, and reasonable attorney’s fees and costs of the present action.
(Id. at 18.)
7
E. The Instant Motion
In the instant motion, Defendants assert that: (1) the state laws that created and authorized
the Board are constitutional; (2) Plaintiffs failed to state a claim for a violation of their right to
procedural due process; (3) Plaintiffs are entitled to qualified immunity and/or discretionary
immunity; (4) Plaintiffs have no tort claim for emotional distress; and (5) Plaintiffs have no claim
for punitive damages. (Doc. 42-2.)
II.
Relevant Standards
A. Rule 12(b)(2) & 12(b)(5)
Federal Rule of Civil Procedure (“Rule”) 12(b)(5) allows a party to move to dismiss for
insufficient service of process. The party making service has the burden of demonstrating its
validity when an objection to service is made. Holly v. Metro. Transit Auth., 213 F. App’x 343,
344 (5th Cir. 2007) (citing Carimi v. Royal Caribbean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th
Cir. 1992)). The district court has broad discretion in determining whether to dismiss an action for
ineffective service of process. George v. U.S. Dep’t of Labor, Occupational Safety & Health
Admin., 788 F.2d 1115, 1116 (5th Cir. 1986).
Rule 12(b)(2) allows a party to move to dismiss for lack of personal jurisdiction. “Where
a defendant challenges personal jurisdiction, the party seeking to invoke the power of the court
bears the burden of proving that jurisdiction exists.” Luv N'Care, Ltd. v. Insta-Mix, Inc., 438 F.3d
465, 469 (5th Cir. 2006) (citing Wyatt v. Kaplan, 686 F.2d 276, 280 (5th Cir. 1982)). When a court
rules on a motion to dismiss for lack of personal jurisdiction without holding an evidentiary
hearing, the plaintiff need only make a prima facie showing of personal jurisdiction. Johnston v.
Multidata Sys. Int’l Corp., 523 F.3d 602, 609 (5th Cir. 2008) (quoting Buillion v. Gillepsie, 895
F.2d 213, 217 (5th Cir. 1990) (citations omitted)). “Moreover, on a motion to dismiss for lack of
8
jurisdiction, uncontroverted allegations in the plaintiff's complaint must be taken as true, and
conflicts between the facts contained in the parties' affidavits must be resolved in the plaintiff's
favor for purposes of determining whether a prima facie case for personal jurisdiction exists.” Id.
(“Proof by preponderance of the evidence is not required.”). However, in assessing whether the
plaintiff has presented a prima facie case of personal jurisdiction, the court “will not ‘credit
conclusory allegations, even if uncontroverted.’ ” Sealed Appellant 1 v. Sealed Appellee 1, 625 F.
App’x 628, 631 (5th Cir. 2015) (quoting Panda Brandywine Corp. v. Potomac Elec. Power Co.,
253 F.3d 865, 869 (5th Cir. 2001)). The court may consider “affidavits, interrogatories,
depositions, oral testimony, or any combination of the recognized methods of discovery.” Revell
v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002) (quoting Stuart v. Spademan, 772 F.2d 1185, 1192 (5th
Cir. 1985)); cf. Fed. R. Civ. P. 12(d) (listing only motions under Rule 12(b)(6) and 12(c) as
requiring conversion to summary judgment if evaluated on matters outside the pleadings).
Proper service of process is an essential part of the procedure for establishing and proving
personal jurisdiction. Carimi, 959 F.2d at 1349; see also Delta S.S. Lines, Inc. v. Albano, 768 F.2d
728 (5th Cir. 1985). In the absence of valid service of process, proceedings against a party are
void. Aetna Business Credit, Inc. v. Universal Décor & Interior Design, Inc., 635 F.2d 434, 435
(5th Cir. 1981).
B. Rule 12(b)(6)
“Federal pleading rules call for a ‘short and plain statement of the claim showing that the
pleader is entitled to relief,’ Fed. R. Civ. P. 8(a)(2); they do not countenance dismissal of a
complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v.
City of Shelby, Miss., 135 S. Ct. 346, 346–47 (2014) (citation omitted).
Interpreting Rule 8(a), the Fifth Circuit has explained:
9
The complaint (1) on its face (2) must contain enough factual matter (taken as true)
(3) to raise a reasonable hope or expectation (4) that discovery will reveal relevant
evidence of each element of a claim. “Asking for [such] plausible grounds to infer
[the element of a claim] does not impose a probability requirement at the pleading
stage; it simply calls for enough fact to raise a reasonable expectation that discovery
will reveal [that the elements of the claim existed].”
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 1965 (2007)).
Applying the above case law, the Western District of Louisiana has stated:
Therefore, while the court is not to give the “assumption of truth” to conclusions,
factual allegations remain so entitled. Once those factual allegations are identified,
drawing on the court's judicial experience and common sense, the analysis is whether
those facts, which need not be detailed or specific, allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” [Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009)]; Twombly, 55[0] U.S. at 556.
This analysis is not substantively different from that set forth in Lormand, supra, nor
does this jurisprudence foreclose the option that discovery must be undertaken in order
to raise relevant information to support an element of the claim. The standard, under
the specific language of Fed. R. Civ. P. 8(a)(2), remains that the defendant be given
adequate notice of the claim and the grounds upon which it is based. The standard is
met by the “reasonable inference” the court must make that, with or without discovery,
the facts set forth a plausible claim for relief under a particular theory of law provided
that there is a “reasonable expectation” that “discovery will reveal relevant evidence of
each element of the claim.” Lormand, 565 F.3d at 257; Twombly, 55[0] U.S. at 556.
Diamond Servs. Corp. v. Oceanografia, S.A. De C.V., No. 10-00177, 2011 WL 938785, at *3
(W.D. La. Feb. 9, 2011) (citation omitted).
In deciding a Rule 12(b)(6) motion, all well-pleaded facts are taken as true and viewed in
the light most favorable to the plaintiff. Thompson v. City of Waco, Tex., 764 F.3d 500, 502–03
(5th Cir. 2014). The task of the Court is not to decide if the plaintiff will eventually be successful,
but to determine if a “legally cognizable claim” has been asserted.” Id. at 503.
10
III.
Discussion
A. Failure to Serve
1. Parties’ Arguments
Defendants first argue that Plaintiffs were required to serve them under Rule 4(e), but
Plaintiffs failed to serve the Amended Complaint as required by this rule. Instead, Plaintiffs mailed
a copy of the Complaint and a Waiver of Service of Summons to each of the Board Members by
certified mail. Further, Plaintiffs failed to file proof of service into the record. Because Plaintiffs
failed to properly effectuate service, their claims against the Board Members must be dismissed
under Rule 4(m).
Plaintiffs respond that good cause exists in this case to excuse the delayed service. The
Board Members were served with the original Complaint. After the Amended Complaint was filed,
Plaintiffs sent each Board Member the Notice of a Lawsuit, Request to Waive Service of
Summons, and a copy of the Amended Complaint via certified mail. Six of the nine board members
received these documents. Plaintiffs urge that the Board Members received notice of the action
and had an opportunity to answer and present defenses. Alternatively, Plaintiffs urge that the Court
order that service be made within a specified time under this Court’s Rule 4(m) discretion.
Defendants reply that Plaintiffs admit that service was not properly effectuated on Mark
Williams, Ector Echegoyen, and Maria Landry. Thus, these Board Members should be dismissed
from the action without prejudice for insufficient service. As to the other Board Members,
Defendants dispute that mailing the summons to them by certified mail satisfies the requirements
of Rule 4(e). Further, as to Plaintiff’s request for additional time, Plaintiffs were already given an
extension of time to effectuate service, yet they have still failed to do so timely.
11
2. Applicable Law
“No service is required on a party who is in default for failing to appear. But a pleading
that asserts a new claim for relief against such a party must be served on that party under Rule 4.”
Fed. R. Civ. P. 5(a)(2). Thus, “[Rule] 5(a)(2) generally does not require service of pleadings and
other papers which do not assert additional claims, but it does require that ‘a pleading that asserts
a new claim for relief against such a party must be served on that party pursuant to Rule 4.’ ” In
re Chinese Manufactured Drywall Prods. Liab. Litig., 894 F. Supp. 2d 819, 891 (E.D. La. 2012),
aff'd, 742 F.3d 576 (5th Cir. 2014), and aff'd, 753 F.3d 521 (5th Cir. 2014); see also 4B Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1144 (4th ed. 2019)
(“According to the second sentence of Rule 5(a)(2), however, a party who is in default for failure
to appear is entitled to receive a pleading asserting a new claim for relief against him, but it must
be served on him under Rule 4 as if it were original process.”). For example, in Williams v.
Eadgear Holdings USA, Inc., No. 13-125, 2013 WL 12114865, at *1 (W.D. Tex. Aug. 2, 2013),
the Court found, “Because the claims against the named defendants are the same in both the second
amended complaint and third amended complaint, except as to newly-added GoFun Places, SRL,
service of the third amended complaint [was] unnecessary.”
Rule 4(e) provides that an individual may generally be served in a judicial district of the
United States by either: “(1) following state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the district court is located or where service is
made;” or “(2) doing any of the following: (A) delivering a copy of the summons and of the
complaint to the individual personally; (B) leaving a copy of each at the individual's dwelling or
usual place of abode with someone of suitable age and discretion who resides there; or (C)
12
delivering a copy of each to an agent authorized by appointment or by law to receive service of
process.” Fed. R. Civ. P. 4(e).
Additionally, “[i]f a defendant is not served within 90 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss the action without
prejudice against that defendant or order that service be made within a specified time.” Fed. R.
Civ. P. 4(m). “But if the plaintiff shows good cause for the failure, the court must extend the time
for service for an appropriate period.” Id.
“[A] district court's dismissal under Rule 4(m) [is reviewed] for abuse of discretion.”
Newby v. Enron Corp., 284 F. App'x 146, 149 (5th Cir. 2008) (citing Traina v. United States, 911
F.2d 1155, 1157 (5th Cir. 1990)). The Fifth Circuit has explained:
Under Rule 4(m), a district court is permitted to dismiss a case without prejudice if
a defendant has not been served within [90] 2 days after a complaint is filed.
Thompson v. Brown, 91 F.3d 20, 21 (5th Cir. 1996). However, if a plaintiff can
establish good cause for failing to serve a defendant, the court must allow additional
time for service. Id. Moreover, even if good cause is lacking, the court has
discretionary power to extend time for service. Id. Such relief may be warranted,
“for example, if the applicable statute of limitations would bar the refiled action, or
if the defendant is evading service or conceals a defect in attempted service.” Fed.
R. Civ. P. 4(m) advisory committee's note (1993).
Id. See also Williams v. Ass'n De Prevoyonce Interentreprises, No. 11-1664, 2013 WL 394026, at
*1 (E.D. La. Jan. 30, 2013) (“While Rule 4(m) permits a district court to dismiss a defendant
without prejudice if not served within [90] days of a complaint, the Fifth Circuit has acknowledged
that this is discretionary. “[E]ven if good cause is lacking, the court has discretionary power to
extend time for service.” It is only when good cause exists that a district court must extend the time
for service.” (citing Newby, 284 F. App’x at 149)). Thus, in Williams, the Court “exercise[d] its
discretion and decline[d] to dismiss the [defendant] without prejudice” because, inter alia, though
2
The 2015 advisory committee notes to Rule 4(m) explain that, “[t]he presumptive time for serving a defendant [was]
reduced from 120 days to 90 days.”
13
defendant had not been served with an amended complaint, it was “apprised of this matter” through
service of a different complaint and “therefore ha[d] not been prejudiced in its defense.” Id.
3. Analysis
In short, the Court will deny the motion. Preliminarily, the Court finds that Plaintiffs failed
to make proper service on the Board Members. Rule 5(e) requires service of pleadings that assert
“new claims.” Here, the original Complaint asserted claims against the Board Members in their
official capacity (Compl. ¶ 5, Doc. 1) while the Amended Complaint asserted claims against them
in their individual capacity (Am. Compl. ¶ 5(C), Doc. 27). This is significant because “[a]n official
capacity suit is the equivalent of a suit against the entity of which the officer is an agent[,]” and
“[t]o determine whether a public official is liable in his official capacity, the Court looks to the
jurisprudence discussing whether a municipality or local government entity is liable under section
1983.” Romain v. Governor's Office of Homeland Sec., No. 14-660, 2016 WL 3982329, at *6
(M.D. La. July 22, 2016) (citations and quotations omitted). Thus, the Amended Complaint clearly
asserted new claims, and the Board Members were entitled to service of it. Plaintiffs have the
burden of proving timely service, and they have failed to demonstrate how service by certified
mail—particularly when three of the Board Members did not even receive it—satisfies the
requirements of Rule 4(e).
However, the Court will exercise its discretion and require Plaintiffs to serve Defendants
within a specified time. The Court will do so because, here, Defendants do not dispute the fact
that Plaintiffs properly served the original Complaint (see Docs. 11–20) and that most received the
Amended Complaint by certified mail, so they were “apprised of this matter.” See Williams v.
Ass'n, 2013 WL 394026, at *1. Moreover, despite the official/individual capacity differences in
the two complaints, the due process claims in each pleading were nearly identical. (Compare
14
Complaint ¶¶ 36–50, Doc. 1, with Am. Compl. ¶¶ 36–50, Doc. 27.) Plaintiffs’ conduct is not to be
lauded, but it does not warrant the harsh result of dismissal without prejudice. Accordingly,
Defendants’ motion on this issue is denied.
B. Constitutionality of La. Rev. Stat. Ann. § 37:3271 et seq.
1. Parties’ Arguments
Defendants next attack Plaintiffs’ alleged claim that La. Rev. Stat. Ann. § 37:3271 et seq.
is unconstitutional as applied to them.
Defendants emphasize that statutes are presumed
constitutional, particularly when, as here, they were enacted to promote a public purpose.
Defendants also emphasize that Plaintiffs bear a heavy burden of demonstrating the
unconstitutionality of a statute. Lastly, Defendants maintain that their conduct was not “arbitrary
and capricious,” as Plaintiffs admit that the Board “found itself in a quandary through no fault of
its own.” (Doc. 42-2 at 7(citing Am. Compl. ¶ 45, Doc. 27).)
Plaintiffs respond first by emphasizing that, under the Board’s regulations, Plaintiffs were
entitled to notice before their license was revoked or suspended.
Plaintiffs then say (sic
throughout):
Nowhere in their Complaint, did, the Claimants question or challenge the
constitutionality of the Louisiana Private Security, Regulatory and Licensing Law,
La. R.S.37:3270, et seq., nor did they question the constitutionality of Louisiana
Administrative Code, Title 46, Part LIX. The Claimants’ lawsuit: (1) seeks to
vindicate and recognize Plaintiffs’ right to economic liberty under the United States
Constitution and the Louisiana Constitution of 1974; (2) seeks to establish and
seeks a Judgment declaring that the defendants violated and deprived Plaintiffs’ of
certain rights and privileges accorded and guaranteed by the Fourteenth
Amendment to the United States Constitution and the Louisiana Constitution of
1974; and (3) seeks damages. Their Complaint is predicated on the Louisiana
Private Security, Regulatory and Licensing Law and the Louisiana Administrative
Code, Title 46, Part LIX, as that statute and those rules and regulations were applied
by the [the Board] to the Claimants in this instance. The complaint clearly “allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 129 S. Ct. at 1949.
15
The Defendants deprivation the Claimants of their “property interests” in violation
of due process of law. Lynch v. Household Fin. Corp., 405 U.S. 538 (1972).
(Doc. 45 at 8.) Plaintiffs go onto conclude, “The [Board] had and were subject to procedural due
process requirements, [and] its failure to follow their own rules and regulations resulted in the
taking of the Claimants property interest without due process. In the Complaint, Claimants allege
that the [the Board] violated their procedural due process rights.” (Doc. 45 at 9.)
Defendants reply that Plaintiffs have still failed to state a claim against the Board Members.
Again, Defendants note that, according to the Amended Complaint, the Board “found itself in a
quandary through no fault of its own.” (Doc. 49 at 3 (citing Am. Compl. ¶ 45, Doc. 27).) Thus,
any allegation that the Board was arbitrary and capricious must be dismissed.
2. Analysis
The Court finds that the parties are largely talking over each other on this issue. Plaintiffs
clearly concede that they are not asserting any constitutional attack on the Board’s statutes or
regulations. Rather, their opposition shows that they are only asserting a due process claim under
state and federal law and a claim for a violation of their right to “economic liberty” under the state
constitution. (See Am. Compl. ¶¶ 36–65, Doc. 27.) Thus, since Plaintiffs are not making the claim
to which Defendants object, this part of the motion is denied. However, Defendants’ arguments
will be relevant in the next section, which deals with the § 1983 claim.
C. Section 1983 Claims and Qualified Immunity
1. Parties’ Arguments
Defendants next argue that Plaintiffs fail to state viable § 1983 claims. Here, “Plaintiffs
were given notice of the investigation, the charges filed and the opportunity for hearing. Plaintiffs
filed a Motion for En Banc Recusal of the Board Members which was heard . . . and denied. The
Board Members did nothing to violate Plaintiffs’ rights under the Constitution.” (Doc. 42-2 at 8.)
16
As to qualified immunity, Defendants argue that Plaintiffs cannot establish that they acted
objectively unreasonable under clearly established law.
As stated above, Plaintiffs respond that they have sufficiently established a due process
claim. However, Plaintiffs do not respond to the arguments about qualified immunity.
Defendants respond by repeating their above argument that Plaintiffs failed to plead a due
process violation. Further, Plaintiffs had the burden of demonstrating that qualified immunity does
not apply, and they failed to do so.
2. Applicable Law
a. Qualified Immunity
“Qualified immunity provides government officials performing discretionary functions
with a shield against civil damages liability, so long as their actions could reasonably have been
thought consistent with the rights they are alleged to have violated.” Gobert v. Caldwell, 463 F.3d
339, 345 (5th Cir. 2006) (citing Anderson v. Creighton, 483 U.S. 635, 638, 107 S. Ct. 3034 (1987)).
“Qualified immunity is ‘an entitlement not to stand trial or face the other burdens of litigation,’ . .
. [which] is effectively lost if a case is erroneously permitted to go to trial.” Khansari v. City of
Houston, 14 F. Supp. 3d 842, 853 (S.D. Tex. 2014) (quoting Saucier v. Katz, 533 U.S. 194, 200,
121 S. Ct. 2151, 2156 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223, 129 S. Ct.
808 (2009)). “The doctrine of qualified immunity was created to balance the interest of
compensating persons whose federally protected rights have been violated against the fear that
personal liability might inhibit public officials in the discharge of their duties.” Id. (citing Johnston
v. City of Houston, 14 F.3d 1056, 1059 (5th Cir. 1994)).
“In determining whether an official enjoys immunity, we ask (1) whether the plaintiff has
demonstrated a violation of a clearly established federal constitutional or statutory right and (2)
17
whether the official's actions violated that right to the extent that an objectively reasonable person
would have known.” Gobert, 463 F.3d at 345 (citing Hope v. Pelzer, 536 U.S. 730, 122 S. Ct. 2508
(2002)). Courts are “permitted to exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the circumstances
in the particular case at hand.” See Pearson, 555 U.S. at 236, 129 S. Ct. 808.
“ ‘Qualified immunity attaches when an official's conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.’ ”
Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (quoting White v. Pauly, 137 S. Ct.
548, 551 (2017) (per curiam) (alterations and internal quotation marks omitted)). “ ‘Because the
focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is
judged against the backdrop of the law at the time of the conduct.’ ” Id. (quoting Brosseau v.
Haugen, 543 U.S. 194, 198, 125 S. Ct. 596 (2004) (per curiam)).
“Although ‘[the Supreme] Court's caselaw does not require a case directly on point for a
right to be clearly established, existing precedent must have placed the statutory or constitutional
question beyond debate.’ ” Id. (quoting White, 137 S. Ct. at 551 (internal quotation marks
omitted)). “ ‘In other words, immunity protects all but the plainly incompetent or those who
knowingly violate the law.’ ” Id. (quoting White, 137 S. Ct. at 551 (internal quotation marks
omitted)).
“ ‘Of course, general statements of the law are not inherently incapable of giving fair and
clear warning to officers.’ ” Kisela, 138 S. Ct. at 1153 (quoting White, 137 S. Ct. at 552 (internal
quotation marks omitted)). “But . . . [a]n officer ‘cannot be said to have violated a clearly
established right unless the right's contours were sufficiently definite that any reasonable official
in the defendant's shoes would have understood that he was violating it.’ ” Id. (quoting Plumhoff
18
v. Rickard, 134 S. Ct. 2012, 2023 (2014)). “That is a necessary part of the qualified-immunity
standard[.]” Id.
b. Due Process Claims
The Fourteenth Amendment provides in relevant part, “nor shall any State deprive any
person of life, liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, § 1.
“In order to state a claim for a due process violation, Plaintiff must allege (1) the deprivation of a
protected property or liberty interest, and (2) that the deprivation occurred without due process of
law.” Holden v. Perkins, 398 F. Supp. 3d 16, 23 (E.D. La. 2019) (Barbier, J.) (citing Grimes v.
Pearl River Valley Water Supply Dist., 930 F.2d 441, 444 (5th Cir. 1991)).
As to the first requirement, Judge Barbier of the Eastern District has stated:
The Supreme Court has explained that for purposes of the due process clause,
property interests are created and defined by existing rules or understandings that
stem from an independent source such as state law. Bd. of Regents of State Colls.
v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). The Court
further stated that a protected property interest requires more than a person's
abstract need, desire, or unilateral expectation of it; one must instead have a
legitimate claim of entitlement to the property interest. Id. In addition, although the
existence of a property interest must be decided initially by reference to state law,
federal constitutional law determines whether that interest rises to the level of
entitlement protected by the due process clause. Shawgo v. Spradlin, 701 F.2d 470,
475 (5th Cir. 1983) (citing Winkler v. Cnty of DeKalb, 648 F.2d 411, 414 (5th Cir.
1981)).
. . . Regarding the meaning of a “protected property interest,” “the hallmark of
property . . . is an individual entitlement grounded in state law, which cannot be
removed except ‘for cause’.” Findeisen v. N.E. Indep. School Dist., 749 F.2d 234,
237 (5th Cir. 1984). A property interest is created when a person has secured an
interest in a specific benefit to which the individual has “a legitimate claim of
entitlement.” Bd. of Regents of State Colls., v. Roth, 408 U.S. 564, 577, 92 S. Ct.
2701, 33 L. Ed. 2d 548 (1972). However, the interest must be more than an “abstract
need or desire” or a “unilateral expectation” of the benefit. Id.
Id. at 22–23.
19
“ ‘Privileges, licenses, certificates, and franchises . . . qualify as property interests for
purposes of procedural due process.’ ” Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 220 (5th
Cir. 2012) (quoting Wells Fargo Armored Serv. Corp. v. Ga. Pub. Serv. Comm'n, 547 F.2d 938,
941 (5th Cir. 1977)). “This is because, once issued, a license or permit ‘may become essential in
the pursuit of a livelihood.’ ” Id. (quoting Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L.
Ed. 2d 90 (1971)).
“Because permits and licenses relate to the maintenance of a person's livelihood,
‘[s]uspension of issued licenses . . . involves state action that adjudicates important interests of the
licensees.’ ” Bowlby, 681 F.3d at 220 (quoting Bell, 402 U.S. at 539, 91 S. Ct. 1586; see also
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 543, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985)
(“We have frequently recognized the severity of depriving a person of the means of livelihood.”)).
“Therefore, once issued, a license or permit cannot be taken away by the State without due
process.” Id. (citing Bell, 402 U.S. at 539, 91 S. Ct. 1586). “ ‘[T]o determine whether a
constitutional violation has occurred, it is necessary to ask what process the State provided, and
whether it was constitutionally adequate.’ ” Id. (quoting Zinermon v. Burch, 494 U.S. 113, 126,
110 S. Ct. 975, 108 L. Ed. 2d 100 (1990)).
“The essential elements of . . . procedural due process under the Constitution are notice
and an opportunity to respond.” Richmond v. Coastal Bend Coll. Dist., 883 F. Supp. 2d 705, 713
(S.D. Tex. 2012) (citing Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555, 562 (5th Cir. 2003)).
As to the opportunity to respond, “the Supreme Court has held that ‘[t]he fundamental requirement
of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.’ ”
Bowlby, 681 F.3d at 220 (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L.
Ed. 2d 18 (1976) (quotation marks and citation omitted)). “Depending on the circumstances and
20
the interests at stake, a fairly extensive evidentiary hearing may be constitutionally required before
a legitimate claim of entitlement may be terminated.” Richmond, 883 F. Supp. 2d at 713 (citing
Brock v. Roadway Exp., Inc., 481 U.S. 252, 261, 107 S. Ct. 1740, 1747, 95 L. Ed. 2d 239 (1987)).
“In other circumstances, however, the Supreme Court has upheld procedures affording less than a
full evidentiary hearing if some kind of hearing ensuring an effective initial check against mistaken
decisions is provided before the deprivation occurs and a prompt opportunity for complete
administrative and judicial review is available.” Id. (citing Brock, 481 U.S. at 261–62, 107 S. Ct.
at 1747).
3. Analysis
Having carefully considered the matter, the Court finds that the Board Members are entitled
to qualified immunity. Even assuming Plaintiffs had stated viable due process claims against the
Board Members, Plaintiffs have pointed to no case law demonstrating that the Board Members
were objectively unreasonable in light of clearly established law under the circumstances of this
case—where a revocation occurred, where a hearing was then offered after the fact, but where the
hearing was allegedly biased and the outcome was predetermined. This is particularly critical
when, as Defendants note, Plaintiffs plainly concede in the Amended Complaint that the Board
“found itself in a quandary through no fault of its own.” (Am. Compl. ¶ 45, Doc. 27.)
Again, “[a]lthough [the Supreme] Court's caselaw does not require a case directly on point
for a right to be clearly established, existing precedent must have placed the statutory or
constitutional question beyond debate.” Kisela, 138 S. Ct. at 1152 (emphasis added, citations and
quotations omitted). Without more—and Plaintiffs provided nothing 3—Plaintiffs have not met
their burden with respect to qualified immunity, and Defendants’ motion must be granted.
3
Indeed, Plaintiffs failed to respond completely to the Board Members’ arguments about qualified immunity, and that,
by itself, would warrant dismissal. See JMCB, LLC v. Bd. of Commerce & Indus., 336 F. Supp. 3d 620, 634 (M.D. La.
21
D. State Law Immunity
1. Parties’ Arguments
Defendants also assert that they are immune from the state law claims because of La. Rev.
Stat. Ann. § 9:2798.1. Defendants argue that they acted pursuant to their statutory authority and
that their actions were in the course and scope of their employment, so they cannot be liable.
Plaintiffs reply that the statute at issue shields acts of negligence and decisions grounded
in social, economic, or political policy. Since this decision was unrelated to public policy, the
Board Members are not immune.
Defendants reply that Plaintiffs have failed to allege any facts showing that the Board
Members acted with negligence.
2. Applicable Law.
La. Rev. Stat. Ann. § 9:2798.1 provides in relevant part, “Liability shall not be imposed on
public entities or their officers or employees based upon the exercise or performance or 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.” La. Rev. Stat. Ann. § 9:2798.1(B). Thus,
officers, officials, and employees of any of Louisiana's state boards are, under certain
circumstances, statutorily entitled to immunity from liability “based upon the exercise or
performance or the failure to exercise or perform their policymaking or discretionary acts.” Id. §
9:2798.1(A), (B).
When a defendant invokes this discretionary function immunity as an affirmative defense,
a court must initially determine whether the governmental agency had a choice or discretion
regarding whether to follow a particular course of action. Johnson v. Orleans Par. Sch. Bd., 2006–
2018) (deGravelles, J.) (finding that operative complaint could be dismissed because plaintiff failed to respond to the
substance of defendant's arguments (numerous citations omitted)).
22
1223, p. 14 (La. App. 4 Cir. 1/30/08); 975 So. 2d 698, 709. If a statute, regulation, or policy dictated
the governmental agency's action, then immunity does not apply. Id. at 709–10. However, if there
was no prescribed duty, the defendant must then introduce evidence at trial that the choice was
“grounded in ‘social, economic, or political policy.’ “ Id. at 710 (quoting Simeon v. Doe, 618 So.
2d 848, 852–53 (La. 1993)); see also Lambert v. Riverboat Gaming Enf't Div., 96–1856, p. 9–10
(La. App. 1 Cir. 12/29/97); 706 So. 2d 172, 177–78 (“[E]ven if certain of the alleged acts of
misconduct . . . are discretionary acts and decisions as claimed by the defendants, we are unable
to determine through the exception of no cause action whether the defense will apply herein. Even
where discretion is involved, the court must determine whether the discretionary act is the kind
which is ‘grounded in social, economic or political policy,’ a question of fact to be determined
through a trial.”); Bouchereau v. Gautreaux, No. 14-805, 2015 WL 5321285, at *15 (M.D. La.
Sept. 11, 2015) (deGravelles, J.) (denying motion to dismiss and reaching same result on same
ground)).
3. Analysis
In short, the Court will deny Defendants’ motion on this issue. Even assuming it were
appropriate to evaluate the “social, economic, or political policy” issue at the motion to dismiss
stage (which is questionable), it is clear from the Amended Complaint that the Board Members’
decision was not grounded on any of these policies. Thus, Defendants are not entitled to immunity
under La. Rev. Stat. Ann. § 9:2798.1(B) at this time.
E. Emotional Distress Claim
1. Parties’ Arguments
Next, Defendants maintain the Delta cannot recover any emotional distress damages
because it is a limited liability company. Thus, this claim must be dismissed. Further, Fetty fails
23
to adequately allege a claim for intentional infliction of emotional distress; there is no showing of
extreme and outrageous conduct by the Board Members, and any emotional distress suffered by
Fetty was not severe.
Plaintiffs make no response to this argument in their opposition. Defendants note this in
their reply.
2. Analysis
In short, the motion will be granted on this issue. Preliminarily, Plaintiffs’ failure to
respond to the substance of Defendants’ arguments constitutes abandonment of the claim, and
Plaintiffs’ emotional distress claim could be dismissed on this ground alone. See JMCB, 336 F.
Supp. 3d at 634.
Even if the Court were to rule on the merits, Defendants would be entitled to the relief they
seek. Defendants are correct that limited liability companies cannot sustain damages for mental
anguish, see Pontchartrain Gardens, Inc. v. State Farm Gen. Ins. Co., No. 07-7965, 2009 WL
86671, at *3 (E.D. La. Jan. 13, 2009) (citing AT & T Corp. v. Columbia Gulf Transmission Co.,
No. 07-1544, 2008 WL 4585439 at *3 (W.D. La. Sept. 15, 2008)), so this claim must fall.
Moreover, Fetty’s claim for emotional distress damages also fails, though not for the
reasons Defendants argue. Defendants maintains that Fetty has failed to state a claim for
intentional infliction of emotional distress, but it is clear from the Amended Complaint that Fetty
does not make such a claim. Rather, this claim fails because it lacks adequate factual allegations.
While plaintiffs can recover emotional distress damages for a procedural due process violation
under § 1983, see Carey v. Piphus, 435 U.S. 247, 264, 98 S. Ct. 1042, 1052, 55 L. Ed. 2d 252
(1978), 4 and for negligent infliction of emotional distress under state law, see, e.g., Barrino v. E.
4
As the Supreme Court said in Carey: “In sum, then, although mental and emotional distress caused by the denial of
procedural due process itself is compensable under § 1983, we hold that neither the likelihood of such injury nor the
24
Baton Rouge Par. Sch. Bd., 96-1824 (La. App. 1 Cir. 6/20/97); 697 So. 2d 27, 33-34, 5 here
Plaintiffs have failed to allege any facts that Fetty actually sustained emotional distress damages.
Without more, Plaintiffs have failed to state viable claims for these damages against Defendants.
F. Punitive Damages
1. Parties’ Arguments
Lastly, Defendants urge that Plaintiffs have failed to state cognizable claims for punitive
damages. Such damages require that the Board Members acted in reckless disregard to Plaintiffs’
rights, but, here, Plaintiffs allege that the Board “found itself in a quandary through no fault of its
own.” (Doc. 42-2 (citing Am. Compl. ¶ 45, Doc. 27).) Thus, this claim must be dismissed.
Plaintiffs respond that “Blache acted in reckless disregard to the rights of both Fetty and
Delta Tactical.” (Doc. 45 at 10.) Plaintiffs’ license was revoked without a hearing in direct
violation of Louisiana law. Plaintiffs emphasize that “Blache . . . recklessly disregarded applicable
law and denied Fetty and Delta Tactical’s rights and due process of law in the revocation of the
license issued by the [Board].” (Id.) Plaintiffs close (sic throughout), “Thus, Fetty and Delta . . .
have stated a cause of action for punitive damages such that Blache’s argue in that regard, for
dismissal is without merit.” (Id.)
difficulty of proving it is so great as to justify awarding compensatory damages without proof that such injury actually
was caused.” Id., 435 U.S. at 264, 98 S. Ct. at 1052. Because such damages are not presumed, if a plaintiff fails to
adequately prove actual damages from a denial of procedural due process at trial, he will only be entitled to recover
nominal damages. See id., 435 U.S. at 266–67, 98 S. Ct. at 1054.
5
As Barrino explained: “It is well established in [Louisiana] jurisprudence that a claim for negligent infliction of
emotional distress unaccompanied by physical injury is viable” under La. Civ. Code art. 2315, though “this recovery
has been limited to cases involving the especial likelihood of genuine and serious mental distress, arising from the
special circumstances, which serves as a guarantee that the claim is not spurious.” Id., 697 So. 2d at 33–34 (citations
and quotations omitted).
25
Defendants reply that “Plaintiffs make no defense” to their arguments. (Doc. 49 at 4.)
Defendants highlight that Plaintiffs focus entirely on “Blache, a separate defendant,” and make no
arguments against the Board Members. (Id. at 4–5.)
2. Applicable Law
Two standards of punitive damages govern this case. First, “[p]unitive damages may be
awarded [under § 1983] only when the defendant's individual conduct ‘is “motivated by evil
intent” or demonstrates “reckless or callous indifference” to a person’s constitutional rights.’ ”
Bouchereau, 2015 WL 5321285, at *13 (quoting Williams v. Kaufman Cty., 352 F.3d 994, 1015
(5th Cir. 2003) (citation omitted)). Second, as to the state law claims, “[p]unitive damages are not
allowed under Louisiana law in absence of a specific statutory provision.” Golden v. Columbia
Cas. Co., No. 13-547, 2015 WL 3650790, at *9 (M.D. La. June 11, 2015) (deGravelles, J.) (citing
Hoffpauir v. Columbia Cas. Co., No. 12–403, 2013 WL 5934699, at *14 (M.D. La. Nov. 5, 2013)
(citing Zaffuto v. City of Hammond, 308 F.3d 485, 491 (5th Cir. 2002))).
3. Analysis
The Court will dismiss Plaintiffs’ claims for punitive damages. First, Plaintiffs have
asserted no viable basis for punitive damages for their state law claims, so these claims must fall.
Second, the Court has already dismissed Plaintiffs’ § 1983 claim, so this claim must also fall.
Third, even if Plaintiffs had stated a viable § 1983 claim, the Court agrees with Defendants that
Plaintiffs completely failed to oppose the substance of the Board Members’ motion on this issue
and instead attacked an entirely separate defendant, Fabian Blache. Thus, any punitive damage
claim would be abandoned. See JMCB, 336 F. Supp. 3d at 634. And fourth, Plaintiffs plainly
concede that the Board “found itself in a quandary through no fault of its own.” (Am. Compl. ¶ 45,
26
Doc. 27.) This allegation does not carry the requisite culpability required for an award of punitive
damages. For all these reasons, Plaintiffs’ punitive damages claims are dismissed.
G. Leave to Amend
Lastly, the Court must address whether it will grant leave to amend the operative complaint
to cure the above deficiencies. “[A] court ordinarily should not dismiss the complaint except after
affording every opportunity to the plaintiff to state a claim upon which relief might be granted.”
Byrd v. Bates, 220 F.2d 480, 482 (5th Cir. 1955). The Fifth Circuit has further stated:
In view of the consequences of dismissal on the complaint alone, and the pull to
decide cases on the merits rather than on the sufficiency of pleadings, district courts
often afford plaintiffs at least one opportunity to cure pleading deficiencies before
dismissing a case, unless it is clear that the defects are incurable or the plaintiffs
advise the court that they are unwilling or unable to amend in a manner that will
avoid dismissal.
Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002).
One leading treatise has further explained:
As the numerous case[s] . . . make clear, dismissal under Rule 12(b)(6) generally is
not immediately final or on the merits because the district court normally will give
the plaintiff leave to file an amended complaint to see if the shortcomings of the
original document can be corrected. The federal rule policy of deciding cases on
the basis of the substantive rights involved rather than on technicalities requires that
the plaintiff be given every opportunity to cure a formal defect in the pleading. This
is true even when the district judge doubts that the plaintiff will be able to overcome
the shortcomings in the initial pleading. Thus, the cases make it clear that leave to
amend the complaint should be refused only if it appears to a certainty that the
plaintiff cannot state a claim. . . . A wise judicial practice (and one that is commonly
followed) would be to allow at least one amendment regardless of how unpromising
the initial pleading appears because except in unusual circumstances it is unlikely
that the district court will be able to determine conclusively on the face of a
defective pleading whether the plaintiff actually can state a claim for relief.
5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2019).
Here, Plaintiffs already amended the operative complaint once, and they did not formally
request leave to amend. Nevertheless, because Plaintiffs did not amend their complaint in response
27
to a ruling by this Court, and because of the above “wise judicial practice,” the Court will grant
Plaintiffs one final opportunity to amend their complaint to state viable claims against the Board
Members. See JMCB, 336 F. Supp. 3d at 641–42 (granting leave to amend, despite strong argument
against this by defendant, when amendment to plaintiff’s complaint did not come in response to a
ruling from the court).
IV.
Conclusion
Accordingly,
IT IS ORDERED that the Motion to Dismiss Plaintiffs’ Amended Complaint Pursuant to
F.R.C.P. 12(B)(5) and 12(B)(6) (Doc. 42) filed by Defendants Ritchie Rivers, Mark A. Williams,
Marian H. Pierre, Wilbert Sanders, Jr., Ector Echegoyen, Maria V. Landry, Edward Robinson, Sr.,
Durell P. Pellegrim, and Misty Finchum is GRANTED IN PART and DENIED IN PART. The
motion is granted in that the following claims are DISMISSED WITHOUT PREJUDICE: (1)
Plaintiffs’ § 1983 claims; (2) Plaintiffs’ emotional distress claims; and (3) Plaintiffs’ claims for
punitive damages. In all other respects, the motion is DENIED.
IT IS FURTHER ORDERED that Plaintiffs shall have twenty-eight (28) days in which
to amend the operative complaint to cure any of the deficiencies outlined in this or the Court’s
other rulings. Failure to do so will result in the dismissal of these defective claims with prejudice.
IT IS FURTHER ORDERED that Plaintiffs shall either (a) serve the Amended Complaint
within twenty-one (21) days of this ruling or (b) serve any new operative complaint within twentyone (21) days of that pleading’s filing, whichever is later.
Signed in Baton Rouge, Louisiana, on January 30, 2020.
S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?