L&L Marine Construction, LLC et al v. Falgout et al
Filing
54
Memorandum Opinion and ORDER Granting Defendant City of Bay St. Louis, Mississippi's Motion 42 for Judgment on the Pleadings. Signed by District Judge Halil S. Ozerden on June 16, 2020. (AW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
L & L CONSTRUCTION SERVICES,
L.L.C. and KEITH MARQUAR
PLAINTIFFS
v.
CIVIL NO. 1:18cv146-HSO-JCG
LONNIE FALGOUT, Individually
and in his Official Capacity as
Councilman for the City of Bay St.
Louis, Mississippi, and CITY OF BAY
ST. LOUIS, MISSISSIPPI
DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT CITY
OF BAY ST. LOUIS, MISSISSIPPI’S MOTION [42] FOR JUDGMENT ON
THE PLEADINGS
BEFORE THE COURT is Defendant City of Bay St. Louis, Mississippi’s
(“City” or “Defendant”) Motion [42] for Judgment on the Pleadings. Plaintiffs L & L
Construction Services, L.L.C. and Keith Marquar have filed a Response [46] in
Opposition to the Motion, to which Defendant City of Bay St. Louis, Mississippi has
replied. As such, this Motion is fully briefed and ripe for review. After review of the
Motion, the record, and relevant legal authority, the Court finds that Defendant
City of Bay St. Louis, Mississippi’s Motion [42] for Judgment on the Pleadings
should be granted.
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I. BACKGROUND
A.
Relevant facts 1
Plaintiffs Keith Marquar and L & L Construction Services, L.L.C.
(“Plaintiffs”) were hired by Wayne McCants to build a bulkhead and pier on his
property (“Project”), in Bay St. Louis, Mississippi. Second Am. Compl. [38] at 3.
They allege that Defendant Lonnie Falgout (“Falgout”), who at all relevant times
was a Bay St. Louis City Councilman, owned the property adjacent to Mr. McCants
and was opposed to the Project, prompting him to take various steps to prevent it
from going forward. Id. When these tactics did not succeed, Falgout purportedly
threatened to use “his power, position, and authority as City Councilman for the
City of Bay St. Louis to destroy” Plaintiffs. Id.
Plaintiffs assert that Falgout used his power and authority as a Bay St. Louis
Councilman to “erect barriers to interstate trade and to deprive [Plaintiffs] of the
rights, privileges, or immunities secured to them by the Constitution of the United
States of America and its many laws regulating interstate commerce.” Id. Falgout
is alleged to have used his position as a Councilman to: (1) call Plaintiff L & L
Construction Services, L.L.C.’s (“L&L”) clients and urge them to fire L&L and file
complaints with the City Building Department; (2) falsely state to L&L’s clients
that complaints had been filed against it with the Building Department; (3) publish
emails and Facebook posts falsely stating that complaints against Plaintiffs had
Because the instant Motion is one for judgment on the pleadings, all facts in the Second Amended
Complaint are accepted as true and viewed in the light most favorable to Plaintiffs. Shakeri v. ADT
Sec. Servs., Inc., 816 F.3d 283, 290 (5th Cir. 2016) (quotation omitted).
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been filed with the Building Department; (4) assault and batter Plaintiff Keith
Marquar (“Marquar”) while conducting City business; (5) make false statements to
the Sun-Herald and Sea Coast Echo newspapers that complaints had been filed
against Plaintiffs; (6) inspect the construction work performed by Plaintiffs; (7) send
a letter to Plaintiffs’ customers falsely informing them that complaints had been
filed against Plaintiffs; and (8) email the entire City of Bay St. Louis false
information regarding complaints against Plaintiffs. Id. at 3-7. The Second
Amended Complaint contends that Falgout’s actions have caused existing clients to
cancel business contracts with Plaintiffs and have damaged their reputation and
business. Id. at 6.
Marquar asserts that he repeatedly spoke to City officials about Falgout’s
conduct, including the City Attorney, several City Councilmembers, and the City
Council as a whole during meetings. Id. at 6. On two occasions, the City Council
purportedly went into executive session regarding the issues involving Plaintiffs.
Id. After one of these sessions, the City Attorney directed the Building Department
to release its files on Plaintiffs to Falgout. Id. at 6-7. The City is alleged to have:
(1) had actual knowledge of Falgout’s violations of Plaintiffs’ constitutional rights;
(2) directly participated in violating Plaintiffs’ constitutional rights by giving
Plaintiffs’ files to Falgout and sending false representations to Plaintiffs’ clients;
and (3) ratified Falgout’s pattern of harassment, thus adopting it as the policy,
practice, custom, or pattern of conduct of the City. Id. at 7-8.
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B.
Procedural history
Plaintiffs filed a Complaint in this Court on April 27, 2018, Compl. [1],
followed by a First Amended Complaint on August 19, 2018, First Am. Compl. [18].
The operative Second Amended Complaint was filed on September 4, 2019. Second
Am. Compl. [38]. The Second Amended Complaint asserts four causes of action
against Defendants collectively: (1) unconstitutional interference with Plaintiffs’
business; (2) assault and battery; (3) libel; and (4) slander. Id. at 9-15.
Defendant City of Bay St. Louis (“City”) has filed a Motion [42] for Judgment
on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c), arguing that
Plaintiffs have not sufficiently alleged their federal or state-law causes of action
against the City. Mem. in Supp. [43] at 4. Plaintiffs have filed a Response [46] in
Opposition, Resp. [46], to which the City has replied, Reply [51].
II. DISCUSSION
A.
Legal standard
“The standard for dismissal under Rules 12(b)(6) and 12(c) is the same: ‘To
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.’” Fodge v.
Trustmark Nat’l Bank, 945 F.3d 880, 882 (5th Cir. 2019) (quoting Edionwe v.
Bailey, 860 F.3d 287, 291 (5th Cir. 2017)). A court must accept “all well-pleaded
facts as true and view those facts in the light most favorable to the plaintiff.”
Shakeri, 816 F.3d at 290.
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B.
Plaintiffs’ state-law claims against the City (assault and battery, libel, and
slander)
Plaintiffs’ assault, battery, libel, and slander claims all arise under state law.
The City claims that it cannot be sued for state-law tort claims because Mississippi
has not waived its sovereign immunity from intentional torts. Mem. in Supp. [43]
at 8. It argues in the alternative that these claims were not filed within the
relevant statute of limitations period. Id.
Under the doctrine of sovereign immunity, “the state is free from any
liabilities unless it carves an exception.” Oliver v. Noxubee Cty. Tax Dep’t, 200 F.3d
815, 815 (5th Cir. 1999) (quoting Grimes v. Pearl River Valley Water Supply Dist.,
930 F.2d 441, 443 (5th Cir. 1991)). Mississippi elected a limited waiver of sovereign
immunity when it enacted the Mississippi Tort Claims Act (“MTCA”), Miss. Code
Ann. § 11-46-1 through § 11-46-23; id., but it included substantive limitations to
that waiver along with certain procedural requirements with which a plaintiff must
comply prior to filing an action against the state or a political subdivision, Oliver,
200 F.3d at 815. Cities are considered political subdivisions covered under the
MTCA. See City of Vicksburg v. Williams, No. 2019-CA-00209-SCT, 2020 WL
1808211, at *3 (Miss. Apr. 9, 2020) (applying a MTCA substantive limitation to the
City of Vicksburg, Mississippi); City of Clinton v. Tornes, 252 So. 3d 34, 37 (Miss.
2018) (applying a MTCA substantive limitation to the City of Clinton, Mississippi).
Mississippi Code § 11-46-5 contains a substantive limitation which only
waives the
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immunity of the state and its political subdivisions from claims for
money damages arising out of the torts of such governmental entities
and the torts of their employees while acting within the course and scope
of their employment . . . .
Miss. Code Ann. § 11-46-5(1). Thus, Mississippi’s waiver of sovereign immunity is
inapplicable to torts committed by an employee acting outside the course and scope
of employment. Oliver, 200 F.3d at 815.
Acts of a government employee that “shall not be considered as acting within
the course and scope of his employment” include “fraud, malice, libel, slander,
defamation or any criminal offense other than traffic violations.” Miss. Code Ann. §
11-46-5(2). The MTCA specifically retains sovereign immunity for governmental
entities when the conduct complained of constitutes libel or slander. Miss. Code
Ann. § 11-46-5(2) (“A governmental entity shall not be liable or be considered to
have waived immunity for any conduct of its employee if the employee’s conduct
constituted fraud, malice, libel, slander, defamation or any criminal offense other
than traffic violations.”). This Court has also found that “[b]oth assault and battery
constitute ‘some form of malice or criminal offense,’” which entitles governmental
entities to sovereign immunity. Brown v. Wilkinson Cty. Sheriff's Dep’t, No. 5:16CV-124-KS-MTP, 2017 WL 1479428, at *8 (S.D. Miss. Apr. 24, 2017) (quoting
McBroom v. Payne, No. 1:06-CV-1222-LG-JMR, 2010 WL 3942412, at *5 (S.D. Miss.
Oct. 6, 2010)); see also Holloway v. Lamar Cty., No. 2:15-CV-86-KS-MTP, 2015 WL
9094531, at *5 (S.D. Miss. Dec. 16, 2015); Lewis v. Marion Cty., No. 2:13-CV-76-KSMTP, 2013 WL 3828522, at *1 (S.D. Miss. July 23, 2013).
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The Second Amended Complaint advances state-law claims for libel, slander,
assault, and battery against the City, a political subdivision subject to the MTCA.
Second Am. Compl. [38] at 12-15. It is clear that the City is immune from suit on
these claims and they should be dismissed. Because the Court finds that the City
enjoys immunity under the MTCA from Plaintiffs’ state-law claims against it, it
need not address the City’s alternative arguments regarding the statute of
limitations.
B.
Plaintiffs’ claims against the City under federal law
Plaintiffs raise claims against the City pursuant to 42 U.S.C. § 1983 for
unconstitutional interference with their business in violation of their “Fourteenth
Amendment rights to substantive due process and equal protection of the law.”
Second Am. Compl. [38] at 1, 10. The City argues that Plaintiffs have failed to state
a claim against it for a violation of either substantive due process or equal
protection, and that even if they have, they have not demonstrated that the City is
liable for those violations. Mem. in Supp. [43] at 4.
To establish a claim of municipal liability pursuant to 42 U.S.C. § 1983, a
plaintiff must demonstrate the existence of three elements: (1) a policymaker, (2) an
official policy, and (3) the violation of a constitutional right whose moving force is
the policy or custom. Shumpert v. City of Tupelo, 905 F.3d 310, 316 (5th Cir. 2018),
as revised (Sept. 25, 2018), cert. denied, 139 S. Ct. 1211 (2019) (citing Monell v.
Dep’t. of Social Services, 436 U.S. 658, 694 (1978)). A municipality cannot be held
liable for the acts of its employees based upon a theory of respondeat superior. Bd.
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of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403 (1997). “Consequently, the
unconstitutional conduct must be directly attributable to the municipality through
some sort of official action or imprimatur; isolated unconstitutional actions by
municipal employees will almost never trigger liability.” Piotrowski v. City of
Houston, 237 F.3d 567, 578 (5th Cir. 2001).
1.
Existence of a policymaker
Under § 1983, liability only attaches to decisions of final policymakers.
Owens v. City of Flowood, No. 316CV00451CWRLRA, 2017 WL 368725, at *2 (S.D.
Miss. Jan. 23, 2017) (citing Johnson v. Louisiana, 369 F.3d 826, 831 (5th Cir.
2004)). Under Mississippi law, a municipal board such as a city council acts as a
body, id.; Smith v. Bd. of Supervisors, 86 So. 707, 709 (Miss. 1921), and its members
cannot individually decide or implement policy, Owens, 2017 WL 368725, at *2.
When the municipality’s policymaker is a multimember board, “the separate actions
of individual members of the Board are not sufficient to bind the Board as an
entity.” Griggs v. Chickasaw Cty., 930 F.3d 696, 704-05 (5th Cir. 2019) (quoting
Burns v. Harris Cty. Bail Bond Bd., 139 F.3d 513, 521 (5th Cir. 1998)).
It is beyond dispute that the policymaker whose actions may attach liability
to the City in this case would be the City Council. See id. Falgout, as an individual
member of a multimember board, could not implement policy by himself and the
City cannot be held liable for his actions as an individual. See Owens, 2017 WL
368725, at *2. Thus, the Court may consider only those actions which the City
Council undertook as a board when evaluating whether Plaintiffs have stated a
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plausible claim against the City. See id. According to the Second Amended
Complaint, these actions included the City Council’s alleged knowledge of Falgout’s
actions, its purported ratification of his actions, its conduct in going into executive
session, and the subsequent release of Plaintiffs’ Building Department files to
Falgout. Second Am. Compl. [38] at 6, 7-8.
2.
Existence of an official policy
Plaintiffs advance two theories to establish the existence of an official policy
of the City to support their § 1983 claim: One premised upon ratification and the
other upon failure to act. Id. at 11.
An official policy under § 1983 usually takes the form of written policy
statements, ordinances, or regulations. Peterson v. City of Fort Worth, 588 F.3d
838, 847 (5th Cir. 2009). It may also arise as a result of a widespread practice that
is “so common and well-settled as to constitute a custom that fairly represents
municipal policy,” id. (quoting Webster v. City of Houston, 735 F.2d 838, 841 (5th
Cir. 1984) (en banc)), or through “a single action by a municipal official possessing
final policymaking authority regarding the action in question [which] constitutes
the official policy of the municipality,” Beattie v. Madison Cty. Sch. Dist., 254 F.3d
595, 602 (5th Cir. 2001) (citing Brady v. Fort Bend Cty., 145 F.3d 691, 698 (5th Cir.
1998)).
As the Court has discussed, at the times relevant to this suit the City Council
was the final decision-making authority and policymaker for the City. Neither
party asserts that there was any official written policy which deprived Plaintiffs of
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their constitutional rights, nor that the City engaged in a widespread practice or
custom representing municipal policy. Thus, the Court must evaluate whether
Plaintiffs have stated a plausible claim of municipal policy through its collective
acts of either purportedly ratifying Falgout’s conduct or failing to act.
a. Ratification
Plaintiffs maintain that the Council “ratified” Falgout’s pattern of
harassment and thus adopted it as the official policy of the City. Second Am.
Compl. [38] at 6, 7-8. It appears that Plaintiffs’ position is that this ratification
occurred when the City Council went into executive session, after which the City
Attorney directed the Building Department to release its files on Plaintiffs to
Falgout. Id.; Mem. in Opp’n [46] at 7.
Where “authorized policymakers approve a subordinate’s decision and the
basis for it, their ratification would be chargeable to the municipality because their
decision is final.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).
However, the theory of ratification is limited to “extreme factual situations.”
Peterson, 588 F.3d at 848. Such circumstances have been found to exist where a
policymaker approved of and supported officers “pour[ing]” gunfire onto a truck and
killing an innocent occupant, but not where a policymaker approved of and
supported an officer shooting a fleeing suspect in the back. Compare Grandstaff v.
City of Borger, 767 F.2d 161 (5th Cir. 1985) (finding ratification in case in which
officers “poured” gunfire onto a truck and killed innocent occupant), with Snyder v.
Trepagnier, 142 F.3d 791, 798 (5th Cir. 1998) (refusing to find ratification in case in
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which officer shot fleeing suspect in the back). In Grandstaff, ratification was found
where, following the shooting, there were no reprimands, no discharges, no
admissions of error, and no changes in policy. Grandstaff, 767 F.2d at 171. In
Snyder, the court distinguished Grandstaff by finding that shooting a fleeing
suspect was not an extreme factual circumstance showing pervasive recklessness.
Snyder, 142 F.3d at 797-98.
Plaintiffs’ pleadings do not clearly articulate exactly what information
regarding Falgout’s conduct Marquar disclosed to the City Council as a whole. The
Second Amended Complaint offers few facts to show how the Council approved of
Falgout’s actions or its basis for doing so. Even if the facts as alleged could be
construed as making this showing, accepting them as true, they do not rise to the
level of an “extreme factual circumstance.” Peterson, 588 F.3d at 848. Plaintiffs
have directed the Court to no authority, nor has it located any, requiring the
Council to control the speech or activities of individual members under facts such as
those asserted here.
The only potential facts Plaintiffs allege which could arguably support a
theory of ratification is the allegation that following the closed executive sessions
the City Attorney directed the Building Department to release Plaintiffs’ business
files to Falgout. Second Am. Compl. [38] at 7-8. However, Plaintiffs have not
pleaded sufficient facts tending to show what prompted the City Attorney’s
direction to the Building Department or how that was the result of a joint decision
by the City Council. Not only is it speculative what occurred during the executive
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session, Plaintiffs have alleged no facts that would show how the City Council
somehow ratified Falgout’s sending letters afterwards, or that the Council would
have been aware of his intention to do so after it directed the release of the files.
Moreover, Plaintiffs have pleaded no specific facts identifying any actual harm
suffered as a result of this letter. The conduct of which Plaintiffs complain, allowing
the release of Building Department files, does not rise to the level of the “extreme
factual circumstances” required to create municipal liability based upon a theory of
ratification. See Snyder, 142 F.3d at 797-98; Grandstaff, 767 F.2d at 171-72.
b. Failure to act
Citing O’Quinn v. Manuel, 773 F.2d 605 (5th Cir. 1985), Plaintiffs argue that
the City should be held liable under § 1983 because the City Council possessed
knowledge of Falgout’s alleged constitutional violations and failed to take action to
correct or remedy them. Mem. in Opp’n [46] at 6-7. While O’Quinn does
contemplate a finding of liability against a municipality based upon a failure to act,
it qualifies that such liability only arises where there is a duty to act imposed by
state or local law. O’Quinn, 773 F.2d at 608-09. Plaintiffs have not alleged what, if
any, duty the City owed them to control Falgout’s individual actions or statements.
Nor have they cited the Court to any state or local law which imposed such a duty
upon the City Council. There is no basis to find the City liable for a failure to act
when Plaintiffs have not alleged facts or pointed the Court to any appropriate legal
authority showing how it owed a duty to do so.
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In sum, Plaintiffs have not pleaded sufficient facts to state a plausible claim
that the City implemented a municipal policy through the City Council’s actions.
See Beattie, 254 F.3d at 602. Because Plaintiffs have not properly pled the existence
of an official policy of the City that was the moving force behind any alleged
deprivation of their constitutional rights, Plaintiffs have not stated a plausible
claim for relief against the City under a theory of municipal liability.
III. CONCLUSION
After a thorough review and consideration of Defendant City of Bay St. Louis,
Mississippi’s Motion [42] for Judgment on the Pleadings, the record as a whole, and
relevant legal authority, the Court concludes that the City’s Motion [42] for
Judgment on the Pleadings should be granted, and Plaintiffs’ claims against
Defendant City of Bay St. Louis, Mississippi should be dismissed without prejudice.
To the extent the Court has not addressed any of the parties’ arguments, it has
considered them and determined that they would not alter the result.
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IT IS, THEREFORE, ORDERED AND ADJUDGED that, Defendant City
of Bay St. Louis, Mississippi’s Motion [42] for Judgment on the Pleadings is
GRANTED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiffs Keith
Marquar and L & L Construction, L.L.C.’s claims against Defendant City of Bay St.
Louis, Mississippi are DISMISSED WITHOUT PREJUDICE.
SO ORDERED AND ADJUDGED, this the 16th day of June, 2020.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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