Watkins v. Louisiana Highway Department

Filing 18

REPORT AND RECOMMENDATIONS re 10 MOTION to Dismiss for Lack of Jurisdiction filed by LA Dept of Transportation & Development. IT IS RECOMMENDED that defendants motion to dismiss (rec. doc. 10) be GRANTED. Objections to R&R due by 2/22/2010. Signed by Magistrate Judge Patrick J Hanna on 2/3/10. Sent copy to CB this date.(crt,Jordan, P)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA L A F A Y E T T E -O P E L O U S A S DIVISION I V Y WATKINS V ER SU S L O U IS I A N A DEPARTMENT OF T R A N S P O R T A T IO N AND D EV EL O PM E NT C I V I L ACTION NO. 09-1743 J U D G E MELANCON M A G I S T R A T E JUDGE HANNA

R E P O R T AND RECOMMENDATION (R e c . Doc. 10) B e f o re the court is defendant State of Louisiana, Department of Transportation and D e v e lo p m e n t's motion to dismiss. In its motion, defendant argues this matter should be d is m is s e d because the court has no subject matter jurisdiction. Alternatively, defendant a rg u e s the claims must be dismissed under Rule 12 of the Federal Rules of Civil P r o c e d u re on grounds of improper venue, insufficient process and service of process, and f o r failure to state a claim upon which relief can be granted. Plaintiff, who was p ro c e ed in g pro se, filed an opposition. Oral argument was to be held on January 27, 2 0 1 0 , however, prior to argument, plaintiff orally moved to enroll Anthony J. Lascaro as h e r attorney of record. That motion was granted. Mr. Lascaro moved for a continuance w h ic h was also granted and plaintiff was given 14 days to file any supplemental o p p o s itio n to the defendant's motion. By correspondence dated February 1, 2010, p la in tif f withdrew her opposition to the defendant's motion thus making it unopposed (R e c . 17). For the reasons which follow, the undersigned recommends the case be d is m is s e d .

B a c k g ro u n d and Argument P la in tif f alleged she sustained serious injuries in a car accident on the night of O c to b e r 2, 2008. Plaintiff contends DOTD is culpable because the road was under c o n stru c tio n and they negligently failed to adequately light or barricade the area. Plaintiff a tta c h ed police and Louisiana State Police Crime Laboratory reports to her complaint that ind icate she had a blood alcohol level of 0.12 grams percent, she was arrested for DWI, a n d there were several empty prescription bottles scattered in the crash debris.1 Also a tta c h ed to the Complaint was a narrative by plaintiff requesting a toxicology report in an e f f o rt to show her prescription medication for bipolar disorder may have caused the high b lo o d alcohol reading.2 I n her complaint, plaintiff alleges, in part, as follows: P e titio n e r is being accused of being intoxicated at the time of the near fatal a c cid e n t and believes that the alcohol readin [sic] was merely a convenient d e te rm in a tio n to discourage the petitioner from holding the highway d e p a rtm e n t liable for near death accident. *** Petitioner is now pending prosecution for the alleged DWI petitioner is b e in g accused of, which date of trial is leading petitioner to believe has b e e n set at a time which is over one year or [sic] the limitation of time for p e titio n e r to file suit against the state for the states negligence which caused p e t itio n e r 's injuries.3 In the Civil Cover Sheet, petitioner alleged the basis of federal court jurisdiction w a s federal question.
1

Rec. Doc. 1-1, pp. 11, 17 R e c . Doc. 1-2, p. 3. R e c . Doc. 1.

2

3

In its motion to dismiss, defendant argues there is no federal court jurisdiction over this matter. Plaintiff's claims are in state tort law and raise no federal question to support f e d era l question jurisdiction. Furthermore, defendant argues, diversity jurisdiction does n o t exist because plaintiff's claims are against a state agency, which is not a citizen of any s ta te . Alternatively, if the court does have subject matter jurisdiction, defendant argues th e service was insufficient as it was served on the Louisiana Highway Department, in s te a d of the State of Louisiana, Department of Transportation and Development, as re q u ire d by La. R.S. 36:501, and defendant received insufficient service of process, as the s u m m o n s issued by the court were returned unexecuted by plaintiff. Finally, defendant argues plaintiff has failed to state a claim, as the Department of T ran sp o rtatio n and Development is immune from suit by private citizens in federal court u n d e r the Eleventh Amendment to the United States Constitution. In opposition, plaintiff argues "plaintiff does not feel that as a private citizen of the S T A T E OF LOUISIANA she can receive fair and impartial justice from the state court w h ic h it claims to recognize the DOTD to be an alter ego or arm of that state, which c a n n o t be sued by a private citizen of state (as if plaintiff)." 4 A p p lic a b le Law and Discussion W h ile the plaintiff "checked the box" indicating her claim was brought in this co u rt pursuant to federal question jurisdiction under 28 U.S.C. §1331, plaintiff's

4

Rec. Doc. 13.

complaint does not allege a violation of any federal law or constitutional provision. Plaintiff's claims are simply state law tort claims, wherein she alleges DOTD's n eg lig en ce was the cause of her automobile accident and her personal injuries. Plaintiff's a lle g a tio n s that she was given a DWI to discourage her from holding defendant liable and sc h e d u lin g her criminal trial for DWI after the prescription date for her filing of a civil s u it had run do not sufficiently allege a federal claim to support federal question ju ris d ic tio n ; rather, they are in the nature of defenses to her DWI citation and prosecution. In any case, DOTD is immune from suit in federal under the 11 th Amendment. T illm a n v. CSX Transp., Inc., 929 F.2d 1023, 1025 ((5 th Cir. 1991). The Fifth Circuit has re p e a ted ly held that the DOTD may exercise immunity from suit by private citizens in f e d e ra l court. See Fireman's Fund Ins. Co. v. Department of Transp., 792 F.2d 1373 (5th C ir.1 9 8 6 ); Freimanis v. Sea-Land Serv., Inc., 654 F.2d 1155 (5th Cir.1981). Therefore, th e re is no federal question jurisdiction available to plaintiff. Neither is there jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. § 1 3 3 2 . A state is not a citizen for purposes of diversity jurisdiction. Postal Telegraph C a b le Co. v. State of Alabama, 155 U.S. 482, 487, 15 S.Ct. 192, 194 ((U.S.1894). Moreover, "[i]f suit is brought against an agency which is merely an alter ego of the state, it follows that federal jurisdiction is also lacking." Tradigrain, Inc. v. Mississippi State P o rt Authority, 701 F.2d 1131 (5 th Cir. 1983). The determination of whether an agency is a n alter ego of the state or an independent agency is based on an analysis "virtually id e n tic a l" to the test used to determine whether an agency is an arm of the state for

Eleventh Amendment purposes. Id. The Fifth Circuit "has repeatedly held that the DOTD m a y exercise [Eleventh Amendment] immunity from suit by private citizens and federal c o u rt" because it is an arm of the state. Tillman v. CSX Transportation, Inc., 929 F.2d 1 0 2 3 , 1025 n. 1 (5th Cir.1991).See also Firearm Fund Ins. Co. v. Department of T ra n s p o rta tio n and Development, 792 F.2d 1373 (5th Cir.1986); Lambert v. Kenner City, 2 0 0 5 WL 53307 (E.D.La. 2005). Accordingly, the DOTD is equivalent to the State of L o u is ia n a for purposes of determining diversity of citizenship. Thus, there is no federal c o u rt jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. §1332. Conclusion and Recommendation F o r all of the reasons given above, the undersigned finds this court lacks subject m a tte r jurisdiction. Therefore, IT IS RECOMMENDED that defendant's motion to dismiss (rec. doc. 10) be GRANTED. U n d e r the provisions of 28 U.S.C. Section 636(b)(1)(C) and Rule 72(b), parties a g g rie v e d by this recommendation have fourteen (14) days from service of this report and re c o m m e n d a tio n to file specific, written objections with the Clerk of Court. A party may re sp o n d to another party's objections within fourteen (14) days after being served with a c o p y of any objections or responses to the district judge at the time of filing. F a ilu re to file written objections to the proposed factual findings and/or the p ro p o s e d legal conclusions reflected in this Report and Recommendation within fourteen (1 4 ) days following the date of its service, or within the time frame authorized by

Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either the factual findings o r the legal conclusions accepted by the District Court, except upon grounds of plain e rr o r. See Douglass v. United Services Automobile Association, 79 F.3d 1415 (5th Cir. 1996). S ig n e d at Lafayette, Louisiana February 3 r d , 2010.