2222 South Broad, LLC v. New Orleans City, No. 2:2015cv03674 - Document 17 (E.D. La. 2016)
Court Description: ORDER AND REASONS granting defendant's MOTION 13 to Dismiss. Signed by Judge Sarah S. Vance on 4/5/16. (jjs)
Download PDF
<![CDATA[
2222 South Broad, LLC v. New Orleans City Doc. 17 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA 2222 SOUTH BROAD, LLC CIVIL ACTION VERSUS NO: 15-3674 CITY OF NEW ORLEANS SECTION: R ORD ER AN D REASON S Defendant, the City of New Orleans, m oves to dism iss plaintiff's com plaint for lack of subject m atter jurisdiction and failure to state a claim . For the following reasons, the Court grants the m otion. I. BACKGROU N D This case arises out of a dispute over taxes, interest, penalties, and other charges that plaintiff 2222 South Broad, LLC paid to the City of New Orleans.1 Plaintiff owned several real estate parcels within New Orleans.2 Plaintiff alleges that instead of m ailing property tax bills to plaintiff's address, the City sent the bills to a non-existent address.3 As a result, plaintiff did not learn of 1 R. Doc. 1. 2 Id. at 2. 3 Id. at 3. Dockets.Justia.com its tax obligations until after paym ent had com e due and the City had filed code enforcem ent liens against plaintiff's properties.4 Plaintiff alleges that once it discovered its unpaid property taxes, it tendered paym ent under Louisiana's paym ent-under-protest statute. According to plaintiff, this was done in an effort "to avoid the [City] . . . tacking on to each real estate bill penalties, interest, collection fees, and attorney fees. . . ."5 The City refused to accept paym ent under protest, and plaintiff eventually paid the entire am ount dem anded by the City, including interest, penalties, and collection charges.6 Plaintiff brought this lawsuit against the City, alleging that the City's assessm ent of penalties and other "added charges" violated plaintiff's right to due process.7 Specifically, plaintiff alleges that the City violat[ed] Plaintiff's right to due process notice as suggested by the 14th Am endm ent to the United States Constitution as interpreted in the landm ark case of Mennonite Board of Missions v. Adam s, 462 U.S. 791 (19[8]3) concerning the requirem ent for a governm ent taxing entity to provide tim ely due process notice to the property owner before the governm ental entity can in relation to a tax debt seize and sell the tax payer's property.8 4 Id. 5 Id. 6 Id. at 3-4. 7 Id. at 1-2, 4. 8 Id. at 1-2. 2 Plaintiff seeks to recover from the City "all am ounts paid for the last three years beyond the net real estate taxes them selves."9 Plaintiff does not allege any claim under Title 42, United States Code, Section 1983. The City m oves to dism iss for lack of subject m atter jurisdiction and failure to state a claim .10 II. LEGAL STAN D ARD Federal Rule of Civil Procedure 12(b)(1) perm its dism issal for lack of jurisdiction over the subject m atter of the claim . In ruling on a Rule 12(b)(1) m otion to dism iss, the court m ay rely on (1) the com plaint alone, presum ing the allegations to be true, (2) the complaint supplemented by undisputed facts, or (3) the com plaint supplem ented by undisputed facts and by the court's resolution of disputed facts. Den N orske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420 , 424 (5th Cir. 20 0 1); see also Barrera– Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996). The party asserting jurisdiction bears the burden of establishing that the district court possesses jurisdiction. Ram m ing v. United States, 281 F.3d 158, 161 (5th Cir. 20 0 1). A court's dism issal of a case for lack of subject m atter jurisdiction is not a decision on the m erits, and the dism issal does not ordinarily prevent the 9 10 Id. at 6. R. Doc. 13-1. 3 plaintiff from pursuing the claim in another forum . See Hitt v. City of Pasadena, 561 F.2d 60 6, 60 8 (5th Cir. 1977). To survive a Rule 12(b)(6) m otion to dism iss, the plaintiff m ust plead enough facts "to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 697 (20 0 9) (quoting Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7)). A claim is facially plausible when the plaintiff pleads facts that allow the court to "draw the reasonable inference that the defendant is liable for the m isconduct alleged." Id. at 1949. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. Lorm and v. U.S. Unw ired, Inc., 565 F.3d 228, 239 (5th Cir. 20 0 9); Baker v.. Putnal, 75 F.3d 190 , 196 (5th Cir.1996). But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 129 S.Ct. at 1949. III. D ISCU SSION Plaintiff, who is represented by counsel,11 appears to bring this lawsuit as a direct action under the Fourteenth Am endm ent. Federal courts, and the Fifth Circuit in particular, are reluctant to perm it prosecution of actions 11 Unlike subm issions m ade by pro se litigants, the Court does not broadly construe pleadings filed by counsel. See Nelson v. Cain, No. CIV.A. 13-4998, 20 14 WL 2859147, at *14 (E.D. La. J une 23, 20 14). 4 directly under the Constitution. See Hearth, Inc. v. Dep't of Pub. W elfare, 617 F.2d 381, 382 (5th Cir. 1980 ) (noting the court's "hesitan[ce] to find causes of action arising directly from the Constitution."). Such actions are perm itted "only when necessitated by a total absence of alternative courses." Berger v. City of New Orleans, 273 F.3d 10 95, 20 0 1 WL 10 85131, at *2 (5th Cir. Sept. 4, 20 0 1). When Congress has provided an adequate alternative remedial scheme, a direct action is not available. Id. at *1. Here, Congress has provided an adequate rem edial schem e in Section 1983, which is intended to substitute for direct recovery under the Constitution. See Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (20 0 2) (noting that Section 1983 provides a m echanism for enforcing individual rights ensured by federal statutes and the Constitution). Section 1983 is the proper vehicle for raising due process claim s against a m unicipality like the City of New Orleans. See Garrett v. City of Houston, Tex., 10 2 F. App'x 863, 864 (5th Cir. 20 0 4); Burns-Toole v. By rne, 11 F.3d 1270 , 1273 n. 3 (5th Cir. 1994) ("[T]he proper vehicle for [First and Fourteenth Am endm ent] allegations is § 1983."). Because plaintiff has not brought its Fourteenth Am endm ent due process claim s under Section 1983, the Court m ust dism iss his suit for failure to state a claim upon which relief can be granted. See Berger, 273 F.3d 10 95 (affirm ing dism issal of lawsuit brought under the Fourteenth Am endm ent, 5 rather than Section 1983); Arm stead v. Napolitano, No. CIV.A. 11-10 95, 20 12 WL 686286, at *2 (E.D. La. Mar. 2, 20 12) (dism issing direct claim under the Fourteenth and Fourth Am endm ents). To the extent plaintiff seeks to assert claim s under state law, the Court dism isses those claim s for lack of jurisdiction. See 28 U.S.C. 1367(c) (noting that a district court m ay decline to exercise supplem ental jurisdiction over a claim once the court dism isses all claim s over which it had original jurisdiction); Noble v. W hite, 996 F.2d 797, 799 (5th Cir. 1993). IV. CON CLU SION For the foregoing reasons, the Court GRANTS defendant's m otion to dism iss. New Orleans, Louisiana, this _5th day of April, 20 16. __ ________________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
