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Francois v. Parish

United States District Court, Eastern District of Louisiana

December 12, 2014



Before the Court is a Motion to Dismiss filed by Defendant Dr. Richard W. Richoux. Rec. Doc. 46. Having considered the record, the memorandum of Defendant, and the law, the Court has determined that the Motion to Dismiss Complaint due to lack of subject matter jurisdiction, insufficient service of process, and absolute immunity or in the alternative, prematurity, is GRANTED for the following reasons.


On February 13, 2014, Plaintiff, Matthias Francois, filed a complaint against Dr. Rafael F. Salcedo, Dr. Richard W. Richoux and Jefferson Parish, Louisiana. Rec. Doc. 3. In his complaint, Plaintiff seeks damages and the costs of a medical review panel resulting from alleged medical malpractice committed by the defendants. Id. at 1-2. Plaintiff's claims arose from an examination made by Drs. Salcedo and Richoux pursuant to a court appointment by Hon. Roy A. Cascio of the Second Parish Court for the Parish of Jefferson. Id. at 3. Prior to this Motion, defendants Dr. Salcedo and Jefferson Parish were both dismissed without prejudice. Rec. Docs. 27 and 41. Plaintiff was granted leave by this Court to amend his complaint and add as defendants "Nautilus Insurance" and "ACE American Insurance Company." Rec. Docs. 7 and 12. At this time, service has not been executed as to these two defendants. Rec. Doc. 39.

On February 14, 2014 the Clerk of Court issued a summons as to Defendant Richoux. Rec. Doc. 4. This summons lacked an address for Dr. Richoux. Id. The summons was returned executed on March 6, 2014. Rec. Doc. 8. The summons return form indicates that service was conducted by a U.S. Marshall at "Correcthealth, LLC, 3384 Peachtree Road, NE, Suite 700, Atlanta GA 30326." Id. Additionally, the summons return lists the person served as "Hatfield." Id. On March 26, 2014 Plaintiff filed an Ex Parte Motion for Entry of Default as to Defendant Richoux. Rec. Doc. 9. The Clerk signed an Order for Entry of Default on March 27, 2014. Rec. Doc. 10. Plaintiff's subsequent Motion for Default Judgment against Defendant Richoux was denied on March 1, 2014. Rec. Doc.13.

Defendant Richoux filed a Motion to Dismiss himself due to insufficient service and to set aside the default entered against him on March 16, 2014. Rec. Doc. 16. In an Order dated October 1, 2014, this Court denied Defendant Richoux's Motion to Dismiss but granted his Motion to set aside the entry of default. Rec. Doc. 37. Additionally, the October 1, 2014 Order gave Plaintiff until November 3, 2014 to properly serve Dr. Richoux with the complaint and summons. Id. A Summons Returned Executed form was filed into the record on November 6, 2014. Rec. Doc. 44. The form indicates that Plaintiff requested Defendant Richoux be served at 650 Poydras Street, Suite 2315, New Orleans, Louisiana. Id. The form was signed by "Jeri Davila" as the individual who received service on October 29, 2014. Id. Dr. Richoux subsequently filed this Motion to Dismiss Complaint Pursuant to Rules 12(b)(1), 12(b)(5) and 12(b)(6) Based on Lack of Subject Matter Jurisdiction, Insufficient Service of Process and Absolute Immunity, or Alternatively, Prematurity on November 18, 2014. Rec. Doc. 47.


In his Motion to Dismiss, and the accompanying memorandum, Defendant Richoux seeks to have the complaint dismissed from the suit, with prejudice, due to (1) lack of subject matter jurisdiction; (2) insufficient service of process; and (3) absolute immunity as a court-appointed expert or in the alternative, (4) as premature. Rec. Doc. 46-1.


Defendant Richoux argues that Plaintiff's complaint should be dismissed for lack of subject matter jurisdiction pursuant to F.R.C.P. 12(b)(1). Rec. Doc. 46-1 at 3. When a Rule 12(b)(1) motion is filed with other Rule 12 motions, the jurisdictional attack under Rule 12(b)(1) should be considered first before addressing any other argument on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam). Such a requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. Id.

A motion to dismiss for lack of subject matter jurisdiction under 12(b)(1) should be granted if it appears certain that the plaintiff cannot prove a valid basis for the court’s exercise of jurisdiction. Home Builders Ass'n of Mississippi, Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).When considering such a motion, the district court may go beyond the allegations of the complaint to consider undisputed facts in the record and resolve disputes of fact created by the record. See Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). The party asserting jurisdiction bears the burden of proof on a motion under Rule 12(b)(1). Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

Generally, the courts recognize that a pro se plaintiff does not have the same education and training as an attorney, and therefore grant a pro se plaintiff some latitude in his complaint. Newsome v. EEOC, 301 F.3d 227, 233 (5th Cir. 2002). However, even after a liberal reading afforded for pro se plaintiffs, "the complaint must allege sufficient facts from which the court can determine the existence of subject matter jurisdiction." Bremer v. Housing Authority of New Orleans, 1999 U.S. Dist. LEXIS 7452, 1999 WL 298795 (E.D. La. 1999).

Plaintiff alleges violations to his constitutional rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments. However, his original and amended complaints do not address these claims in any particularity. Instead, the main thrust of Plaintiff's complaint is for a claim under Louisiana's medical malpractice statute and for general tort damages such as "emotional distress" and "psychological pain and suffering" resulting from the alleged mis-diagnosis. Rec. Doc. 3. Additionally, Plaintiff has asked for the formation of a medical review panel under the Louisiana Medical Malpractice Act, La. R.S. §40:1299.41 et seq. These are clearly claims that arise under state law and not under the Constitution or federal laws.

Finally, there are not sufficient facts or allegations in Plaintiff's complaint to indicate that this Court might have diversity jurisdiction. Because the Court lacks subject matter jurisdiction over the Plaintiff's claims against the ...

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