Brown et al v. Alexandria et al

Filing 13

MEMORANDUM ORDER granting 9 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge S Maurice Hicks, Jr on 5/29/2018. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
ANTHONY T. BROWN, ET AL.

CIVIL ACTION NO. 17-0798

VERSUS

JUDGE S. MAURICE HICKS, JR.

CITY OF ALEXANDRIA, ET AL.

MAGISTRATE JUDGE PEREZ-MONTES

MEMORANDUM ORDER
Before the Court is Defendants the City of Alexandria (the “City”), the Alexandria
City Council (“City Council”), and the Alexandria Police Department’s (“APD”) (collectively
the “Defendants”) unopposed “Motion to Dismiss” (Record Document 9) seeking to
dismiss all claims made against the City Council and APD pursuant to Federal Rule of
Civil Procedure 12(b)(6). 1 For the reasons contained in the instant Memorandum Ruling,
Defendants’ Motion is GRANTED.
BACKGROUND
In their state court Petition, Plaintiffs Anthony T. Brown and Bianca S. Brown (the
“Plaintiffs”) named the City Council and APD as Defendants. See Record Document 15. On June 23, 2017, this matter was removed to federal court pursuant to 28 U.S.C. §§
1331 and 1441. See Record Document 1. Defendants filed its Answer on March 27, 2018,
raising the defense of “fail[ing] to state a claim upon which relief may be granted.” Record
Document 8. On May 1, 2018, Defendants filed the instant motion to dismiss seeking to
dismiss all claims against the City Council and APD pursuant to Federal Rule of Civil

1

The instant Motion to Dismiss was filed on May 1, 2018. See Record Document 9. According to the Notice
of Motion Setting, Plaintiffs had until May 16, 2018 to file a memorandum in opposition. See Record
Document 10. To date, Plaintiffs have failed to file any such opposition.

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Procedure 12(b)(6), asserting neither have the capacity to be sued. See Record
Document 9. Plaintiffs have not opposed the instant motion.
LAW AND ANALYSIS
Under the Federal Rules of Civil Procedure, any motion filed under Rule 12(b)
“shall be made before pleading if a further pleading is permitted.” Fed. R. Civ. Proc. 12(b).
Although Defendants filed an answer to the complaint before submitting their Rule
12(b)(6) motion, they listed “fail[ure] to state a claim for which relief may be granted” as
an affirmative defense in their answer. Record Document 8. In that situation, several
courts interpreting Rule 12(b)(6) have chosen to consider a post-answer motion to
dismiss as properly before the court as long as the movant also raised the defense of
failure to state a claim in his or her answer. See Delhomme v. Caremark Rx Inc., 232
F.R.D. 573, 575–76 (N.D. Tex. 2005), citing Texas Taco Cabana, L.P. v. Taco Cabana of
New Mexico, 304 F.Supp.2d 903, 907 (W.D. Tex. 2003); Quintanilla v. K-Bin, Inc., 993
F.Supp. 560, 562 (S.D.Tex.1998). If the defendant has previously included failure to state
a claim for which relief may be granted as an affirmative defense in his or her answer to
the complaint, “thereby giving notice” of the defense, then courts will generally permit a
Rule 12(b)(6) motion to be filed after the answer. See id.; see also 5B Wright & Miller,
Federal Practice and Procedure: Civil § 1361 at 93 & n.6 (3d ed. 2004) (collecting cases).
Since Defendants listed the defense of failure to state a claim as an affirmative defense
in their responsive pleadings, the Court finds that they properly preserved the right to file
a motion to dismiss under Rule 12(b)(6). Therefore, the Court finds that Defendants' Rule
12(b)(6) motion is timely and is properly before the Court.

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Federal Rule of Civil Procedure 12(b) does not specifically authorize a motion to
dismiss based on a lack of capacity to be sued. However, “[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, 2007 WL 2908805, *1, n. 1 (W.D. La. 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 Defendants’ Rule 12(b)(6) motion based on a lack of
capacity to be sued.
The capacity of a non-corporate entity to sue or be sued is governed by the law of
the state where the district court is located. See Fed.R.Civ.P. 17(b)(3). Under the
Louisiana Civil Code, there are two kinds of persons that are capable of being sued:
natural persons and juridical persons. See La. Civ. Code art. 24.4. Article 24 defines a
natural person as “a human being” and a juridical person as “an entity to which the law
attributes personality, such as a 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). If a
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, 194. “[I]n the absence of law providing that an entity may sue or be sued,
the entity lacks such capacity.” 2 Dantzler v. Pope, 2009 WL 959508, at *1 (E.D. La. 2009),
citing City Council of Lafayette v. Bowen, 649 So.2d 611 (La. App. 3 Cir. 1994).

2

In Roy, the court examined the City’s Home Rule Charter to determine whether it allowed for the City
Council to be sued. See Roy, 984 So.2d at 195. The Charter provided that “[a]ll powers of the city shall be

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In 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.” Urban Hous. of Am., Inc. v. City of Shreveport, 2013 WL 587894, *4 (W.D.
La. 2013), citing City Council of City of Lafayette v. Bowen, 94–584 (La. App. 3 Cir.
11/2/94), 649 So.2d 611; Roy, 984 So.2d at 195; Cozzo v. Tangipahoa Parish Council—
President Government, 279 F.3d 273, 283 (5th Cir. 2002); Porche v. St. Tammany Parish
Sheriff's Office, 67 F.Supp.2d 631 at 635 (E.D. La. 1999); Angers ex rel. Angers, 2007
WL 2908805 at *2; Batiste v. Bonin, 2007 WL 1791219 (W.D. La. 2007). These divisions
are branches or parts of the greater corporate body politic or juridical entity, i.e., the city
itself, are not autonomous or self-governing legal entities, and therefore do not possess
the capacity to be sued. See Bowen, 649 So.2d 611. Likewise, municipal police
departments are entities that lack such capacity. See Neil v. Schlueter, 2010 WL 497763,
*4 (E.D. La. 2010).
Given the above, the Court finds that neither the City Council nor APD are juridical
entities susceptible of being sued. As such, Plaintiffs are not entitled to any relief against
the City Council or APD under the legal theories they allege in their Petition.
CONCLUSION
Based on the foregoing analysis, Defendants the City, the City Council, and APD’s
unopposed “Motion to Dismiss” (Record Document 9) seeking to dismiss all claims made

vested in the council, except as otherwise provided by law or this charter, and the council shall provide for
the exercise thereof and for the performance of all duties and obligations imposed on the city by law.” Id.
The court found the home rule charter was silent on the capacity of the council to sue or be sued and
concluded, “La.Civ.Code art. 24 states that there are two kinds of persons: natural and juridical. The City
Council [of Alexandria] is neither….” Id.

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against the City Council and APD pursuant to Federal Rule of Civil Procedure 12(b)(6) is
hereby GRANTED.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 29th day of May, 2018.

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