Robert J. Caluda, APLC et al v. New Orleans City et al, No. 2:2019cv02497 - Document 41 (E.D. La. 2019)
Court Description: ORDER AND REASONS granting 19 Motion to Dismiss for Failure to State a Claim. Plaintiffs' claims against Defendants Linebarger, Goggan, Blair & Sampson, L.L.P. and United Governmental Services of Louisiana, Inc. are DISMISSED WITH PREJUDICE. FURTHER ORDERED that Plaintiffs' 34 Motion to Certify Class be and hereby is DENIED AS MOOT. Signed by Judge Susie Morgan on 7/19/2019. (sbs)
Download PDF
<![CDATA[
Robert J. Caluda, APLC et al v. New Orleans City et al Doc. 41 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A ROBERT J. CALU D A, APLC, ET AL., Plain tiffs CIVIL ACTION VERSU S N O. 19 -2 4 9 7 TH E CITY OF N EW ORLEAN S, ET AL., D e fe n d an ts SECTION : “E” ( 2 ) ORD ER AN D REAS ON S This m atter is before the Court on the m otion to dism iss filed by Defendants Linebarger, Goggan, Blair & Sam pson, L.L.P. (“Linebarger”) and United Governm ental Services of Louisiana Inc. (“UGSL”). 1 Plaintiffs Robert J . Caluda, APLC, and Robert J . Caluda and New Orleans Private Patrol Services, Inc. n/ k/ a Gurvich Corporation (collectively, “Plaintiffs”) oppose the m otion. 2 For the reasons that follow, the m otion to dism iss is GRAN TED . BACKGROU N D This case relates to ad valorem tax penalties on business personal taxes. Plaintiffs are taxpayers who paid business personal ad valorem tax penalties 3 under an ordinan ce first im posed by the City in 1998. 4 The ordinance im posed an initial 3% penalty on the day of delinquency (February 1) and added a 30 % pen alty if the tax was unpaid by April 1. If the tax rem ained unpaid after April 1, the City referred the debt to a collection agency. 5 In order to challenge the penalties, taxpayers were required to file paym ent under protest by J une 1 of the year the pen alties were im posed. 6 However, because of a 1 R. Doc. 19. R. Doc. 21. 3 R. Doc. 36-1. 4 N EW O RLEANS, LA., CITY CODE , § 150 -46 (1998 ). 5 R. Doc. 36-1 at 1. 6 Id. at 5. 2 1 Dockets.Justia.com drafting error that included no prescriptive period in the ordin ance am ended on April 17, 20 0 0 , the paym ent-under-protest requirem ent did not apply from April 17, 20 0 0 through March 5, 20 0 2. 7 Delinquent taxpayers filed a class action suit against Lin ebarger and UGSL in the Civil District Court for the Parish of Orleans on April 1, 20 0 2. 8 That suit led to the Louisiana Suprem e Court declaring unconstitutional the tax pen alties the ordin ance im posed. 9 The class action is still ongoing. 10 On J anuary 18, 20 19, the state trial court issued a judgm ent certifying a class of those who paid real estate ad valorem taxes from April 17, 20 0 0 through March 5, 20 0 2. 11 The class certified does not include Plaintiffs in this case because the class is defined as those who paid real estate (im m ovable) ad valorem taxes, as opposed to business personal (m ovable) property taxes. On May 8 , 20 19, the Louisiana Court of Appeal for the Fourth Circuit denied a writ seeking review of the judgm ent defining the class. 12 On February 15, 20 19, while the writ application was pending, Plain tiffs filed the instant putative class action petition against Lin ebarger and UGSL in the Civil District Court for the Parish of Orleans. Plaintiffs seek certification as a class action on behalf of anyone who paid business personal ad valorem tax penalties to the City during the applicable tim e period. 13 7 R. Doc. 21-6 at 4. Fransen v. City of N ew Orleans, No. 20 0 2-5170 (Civ. Dist. Ct. filed Apr. 1, 20 0 2). Plaintiffs attached the petition to the instant m otion. R. Doc. 17-2. 9 Fransen v. City of N ew Orleans, 20 0 8-0 0 76 (La. 7/ 1/ 0 8), 988 So. 2d 225, 242– 43. 10 R. Doc. 20 . 11 R. Doc. 21-6. 12 R. Doc. 36-4. 13 Id. at 5– 6, ¶ XII. 8 2 On March 19, 20 19, Defendants Linebarger and UGSL rem oved this m atter to this Court under 28 U.S.C. §§ 1441 and 1453. 14 They invoked this Court’s original jurisdiction pursuant to 28 U.S.C. § 1332(d), the Class Action Fairness Act (“CAFA”). 15 Linebarger and UGSL also invoked this Court’s jurisdiction under 28 U.S.C. § 1331, claim ing the case arises “under the Constitution, laws, or treaties of the United States” and, as a result, rem oval was proper under 28 U.S.C. § 1441(a). 16 Furtherm ore, they alleged this Court has supplem ental jurisdiction over the state law claim s under 28 U.S.C. § 1367(a). 17 The City filed a m otion to sever Plaintiff’s claim s against it from Plaintiff’s claim s against Linebarger and UGSL and to rem and to state court only the claim s against the City. 18 Plaintiffs filed a m otion to rem and the entire case to state court. 19 Linebarger and UGSL opposed Plaintiffs’ m otion to fully rem and. 20 On J uly 19, 20 19, this Court severed the claim s against the City and rem anded those claim s to state court. 21 The Court found it has jurisdiction over Plaintiffs’ federal claim against Linebarger and UGSL under the Fair Debt Collection Practices Act (“FDCPA”) and over Plaintiffs’ state law claim s against Linebarger and UGSL. 22 LEGAL STAN D ARD Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court m ay dism iss a com plaint, or any part of it, for failure to state a claim upon which relief m ay be granted if the plaintiff has not set forth factual allegations in support of his claim that would entitle 14 R. Doc. 1. at 2, ¶ 4. Id. at 2, ¶ 5. 16 Id. at 4, ¶¶ 14, 16. 17 Id. at 4, ¶ 16. 18 R. Doc. 15. 19 R. Doc. 17. 20 R. Doc. 20 . 21 R. Doc. 40 . 22 Id. 15 3 him to relief. 23 “To survive a m otion to dism iss, a com plaint m ust contain sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”24 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.”25 However, the court does not accept as true legal conclusions or m ere conclusory statem ents, 26 and “conclusory allegations or legal conclusions m asquerading as factual conclusions will not suffice to prevent a m otion to dism iss.”27 “[T]hreadbare recitals of elem ents of a cause of action, supported by m ere conclusory statem ents” or “naked assertion[s] devoid of further factual enhan cem ent” are not sufficient. 28 In sum m ary, “[f]actual allegations m ust be enough to raise a right to relief above the speculative level.”29 “[W]here the well-pleaded facts do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged—but it has not ‘show[n]’—that the pleader is entitled to relief.”30 “Dism issal is appropriate when the com plaint ‘on its face show[s] a bar to relief.’”31 AN ALYSIS Plaintiffs bring a claim against Linebarger and UGSL seeking m oney they paid to the City, and the City subsequently paid to Lin ebarger and UGSL. 32 Plaintiffs argue 23 Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 555 (20 0 7); Cuvillier v. Tay lor, 50 3 F.3d 397, 40 1 (5th Cir. 20 0 7). 24 Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quotin g Tw om bly , 550 U.S. at 570 ). 25 Id. 26 Id. 27 S. Christian Leadership Conference v. Suprem e Court of the State of La., 252 F.3d 781, 786 (5th Cir. 20 0 1) (citing Fernandez-M ontes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)). 28 Iqbal, 556 U.S. at 663, 678 (citations om itted). 29 Tw om bly , 550 U.S. at 555. 30 Id. (quotin g F ED . R. CIV. P. 8(a)(2)). 31 Cutrer v. McMillan, 30 8 F. App’x 819, 820 (5th Cir. 20 0 9) (per curiam ) (un published) (quotin g Clark v. Am oco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)). 32 R. Doc. 1-1 at 4– 5, ¶ VI. 4 Linebarger and UGSL were not authorized by law to engage in collection activities because they did not register as debt collectors with the state. 33 Plaintiffs bring this claim against Linebarger and UGSL under LSA-R.S. § 9:3581 et seq. and “applicable federal statutes” existing at the tim e. 34 Plaintiffs also allege Linebarger and UGSL “acted intentionally, knowingly and in concert in depriving plaintiffs of funds by devices and actions that the defendants knew or should have known were unethical and/ or illegal, and were not valid because defendants perform ed little or no work to obtain those sum s[].”35 The Court first addresses the federal claim , then turns to the state law claim s. I. Fe d e ral Cla im As the Court explained in its Order and Reasons of J uly 19, 20 19, 36 ruling on the City’s m otion to sever and rem and 37 and Plaintiffs’ m otion to rem and, 38 this Court has federal question jurisdiction over Plaintiffs’ federal claim again st Linebarger and UGSL, which is brought under the FDCPA. 39 The FDCPA prohibits debt collectors from using “unfair or unconscionable m eans” to collect paym ent from debtors. 40 The statute creates no private right of action for any entity other than natural persons. 41 As noted in the legislative history regarding the scope of the act, the FDCPA “applies only to debts contracted by consum ers for personal, fam ily, or household purposes; it has no 33 Id. at 2, ¶ VI. Id. The Court notes LA. R EV. STAT. § 9:3581 et seq. is part of the Louisiana Equal Credit Opportunity Law, which governs discrim ination in loans or credit extensions and does not apply to this case. In their opposition to a Motion to Dism iss in this m atter, Plaintiffs clarify that they inten ded to cite LA. R EV. STAT. § 9:3576 et seq., as it existed during the relevant tim e period, as the applicable statute. R. Doc. 21 at 5. Regardless of the statute at issue, Plaintiffs’ state law claim cannot be the basis of federal question jurisdiction . 35 Id. at 3, ¶ VIII. 36 R. Doc. 40 . 37 R. Doc. 15. 38 R. Doc. 17. 39 R. Doc. 40 at 6– 8. 40 15 U.S.C. § 1692(f). 41 Rey es v. Julia Place Condom inium s Hom eow ners Ass’n Inc., No. 12-CV-20 43, 20 15 WL 4619928, at *1 (E.D. La. J uly 29, 20 15) (Berrigan , J .). 34 5 application to the collection of com m ercial accounts.”42 This Court has held a consum er debt m ay be held only by a natural person, not by a business or corporation. 43 In this case, Plaintiffs are busin ess entities, not individual consum ers. Plaintiffs seek to recover penalties paid under business personal ad valorem taxes—debts that are com m ercial in nature. As a result, Plaintiffs fail to state a claim under the FDCPA. The Court dism isses the claim Plaintiffs bring under “applicable federal law.” II. State Law Claim s Plaintiffs state they bring a claim against Linebarger and UGSL under Louisiana Revised Statutes § 9:3581 et seq. 44 That section is part of the Louisiana Equal Credit Opportunity Law, which governs discrim in ation in loans or credit extensions and has no relevance to the facts in this case. 45 In their opposition to the instant m otion, Plaintiffs clarify that they intended to cite Louisiana Revised Statutes § 9:3576.1 et seq., not § 9:358 1 et seq. 46 Louisiana Revised Statutes §§ 9:3576.1– 3576.23, repealed in 20 0 3, form ed the Collection Agency Regulation Act. 47 Louisiana Revised Statutes §§ 9:3576.21 and 9:3576.23 both provide, “No private right of action is created by this Part.”48 In the instant m otion, Lin ebarger and UGSL cite these provisions to argue the Collection Agency Regulation Act did not create a private right of action. 49 In their opposition, Plaintiffs argue that, because § 9:3576.22, which prohibits operating a collection agency without a license, does not contain language 42 S. R EP . No. 95-38 2 (1977). Rey es, 20 15 WL 4619928 , at *4. 44 Id. 45 LA. R EV. STAT. § 9:3581. 46 R. Doc. 21 at 5. 47 LA. R EV. STAT. § 9:3576.1 (1993), repealed by Act No. 638, § 1, 20 0 3 La. Acts 230 1, 230 1. 48 LA. R EV. STAT. §§ 9:3576.21(N) (1993), repealed by Act No. 638; 3576.23(C) (1993) repealed by Act No. 638. 49 R. Doc. 19-1 at 6. 43 6 stating there is no private right of action, §§ 9:3576.21 and 3576.23, which provide there is no private right of action, do not apply to actions brought under § 9:3576.22. 50 Plaintiffs further argue the absence of language clarifying that no private right of action is created shows a legislative intent to create a private right of action under § 9:3576.22. 51 The Revised Statutes unam biguously provide that the Collection Agency Regulation Act collectively form s Part XVIII of Louisiana Revised Statutes, Book III, Title XII, Chapter 2. Any m ention in the statutory text of a “Part” refers to the entirety of the Collection Agency Regulation Act, spanning from § 9:3576.1 to § 9:3576.23. 52 This is consistent with the language of the Collection Agency Regulation Act, which distinguishes Parts and Section. For instance, § 9:3576.6 refers to both “this Part” and “this Section.”53 The two term s are not used interchangeably. The provision in §§ 9:3576.21 and 9:3576.23 that “[n]o private right of action is created by this Part,”54 applies to the entirety of the Collection Agency Regulation Act. Moreover, the legislative history accom panying the Collection Agency Regulation Act states that the Act “[s]pecifies that no private right of action is created by [the] new law.”55 In the sam e docum ent, “new law” is used to refer to the entire Collection Agency Regulation Act. 56 Plaintiffs have no private right of action under the Collection Agency Regulation Act. As a result, the Court dism isses Plaintiffs’ claim under the Collection Agency Regulation Act. 50 R. Doc. 21 at 6– 8. at 7– 8 . 52 Id. 53 LA. R EV. STAT. § 9:3576.6 (1993), repealed by Act No. 638. 54 LA. R EV. STAT. §§ 9:3576.21(N) (1993), repealed by Act No. 638; 3576.23(C), (1993), repealed by Act No. 638. 55 Resum e Digest, H.B. 10 78 , 1993 Reg. Sess. (La. 1993) (em phasis in original). The digests are prepared by the House Legislature Service, and are not considered a part of the legislative instrum ent. Nevertheless, like com m ittee m inutes, they provide insight into the intent of the legislature in adopting the legislature. See Holley v. Tate & Ly le, 20 0 0 -2234 (La. App. 4 Cir. 8/ 15/ 0 1), 797 So. 2d 94, 10 1, w rit denied, 20 0 1-2575 (La. 12/ 14/ 0 1), 80 4 So. 2d 646, and w rit denied, 20 0 1-2581 (La. 12/ 14/ 0 1), 80 4 So. 2d 647. 56 Id. (em phasis in original). 51 Id. 7 Plaintiffs also allege the m oney Linebarger and UGSL received in legal fees funded by penalty paym ents were invalid because they “perform ed little or no work” in the debt collection process. 57 Plaintiff appear to bring a claim for breach of contract again st Linebarger and UGSL. In Brookew ood Invs. Co., L.L.C. v. Sixty -Three Tw enty -Four Chef Menteur Hw y ., the plaintiff alleged a defendant law firm ’s legal fees for collecting delinquent ad valorem taxes were excessive and unreasonable in relation to the am ount of work perform ed by the firm . 58 The Louisiana Fourth Circuit Court of Appeal held the plaintiff had no cause of action against the reasonableness of a law firm fee charged under a contract to which it was not a party. 59 In this case, Plaintiffs not alleged they were parties to the contract the City entered with Linebarger and UGSL. As a result, to the extent Plaintiffs challenge the reasonablen ess of fees charged by Linebarger and UGSL, the Court dism isses their claim . 60 CON CLU SION For the foregoing reasons, IT IS ORD ERED that the m otion to dism iss, filed by Defendants Linebarger, Goggan, Blair & Sam pson, L.L.P. and United Governm ental Services of Louisiana, Inc. pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure be and hereby is GRAN TED . 61 Plaintiffs’ claim s against Defendants Linebarger, Goggan, Blair & Sam pson, L.L.P. and United Governm ental Services of Louisiana, Inc. are D ISMISSED W ITH PREJU D ICE. 57 R. Doc. 1-1 at 5, ¶ VIII. Brookew ood Invs. Co. v. Sixty -Three Tw enty -Four Chef Menteur Highw ay , L.L.C., 20 0 7-0 0 50 (La. App. 4 Cir. 5/ 16/ 0 7), 958 So. 2d 120 0 , 120 2, w rit denied, 20 0 7-1258 (La. 10 / 26/ 0 7), 966 So. 2d 575. 59 Id. 60 Because Plaintiffs have failed to cite a statute under which they would have a viable cause of action , the Court finds am endm ent of Plaintiffs’ petition would be futile. The Court does not grant Plaintiffs leave to am end their petition. 61 R. Doc. 19. 58 8 IT IS FU RTH ER ORD ERED that Plaintiffs’ m otion for class certification be and hereby is D EN IED AS MOOT. 62 N e w Orle a n s , Lo u is ian a, th is 19 th d ay o f J u ly, 2 0 19 . ________ __ ________ ________ S U SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 62 R. Doc. 34. 9
]]>
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.
