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Markovich v. City of Mandeville

United States District Court, E.D. Louisiana

February 11, 2015

SAMUEL MARKOVICH AND DIAMOND PROPERTIES NORTHSHORE, LLC
v.
CITY OF MANDEVILLE, LOUISIANA, ET AL., Section B(4)

ORDER AND REASONS

IVAN L.R. LEMELLE, District Judge.

I. NATURE OF THE MOTION AND RELIEF SOUGHT

Before the Court is Plaintiffs' Motion for Partial Summary Judgment.[1] Defendants have filed an opposition.[2] Plaintiffs filed a reply.[3] The motion, set for submission on January 21, 2015, is before the Court without oral argument. Defendants filed a Motion to Stay proceedings pending resolution of appeals taken by the parties from state court rulings.[4] Plaintiffs have filed responses.[5] Accordingly, and for the reasons enumerated below,

IT IS ORDERED that Plaintiff's Motion for Summary Judgment (Rec. Doc. No. 60) be DENIED.

IT IS FURTHER ORDERED that because Plaintiff has altogether failed to demonstrate: the deprivation of a clearly established federal right; the inapplicability of qualified immunity raised by the individual Defendants; as well as the custom and policy required for municipal liability to attach, that this Section 1983 action be DISMISSED WITH PREJUDICE.

The Court, having dismissed Plaintiff's federal claims, IT IS FURTHER ORDERED that Plaintiff's remaining state-law claims be DISMISSED without prejudice.

Defendants' Motion to Stay (Rec. Doc. No. 72) and Ex/Parte Consent Motion for Leave to File Reply in Support of Motion of Stay (Rec. Doc. No. 84) are hereby DISMISSED as MOOT.

II. FACTS AND PROCEDURAL HISTORY

This civil rights action arises out of the alleged selective enforcement of a zoning ordinance by the City of Mandeville and its officials.[6] Plaintiffs are Samuel Markovich ("Markovich") and Diamond Properties Northshore, LLC ("Diamond Properties").[7] Markovich is a commercial developer and landlord whose companies own properties in the City of Mandeville, and is a member of Diamond, which owns a shopping center in Mandeville, as well as Acadian Properties Northshore, LLC ("Acadian Northshore), which also owns property in the city.[8]

In the fall of 2011, the City of Mandeville notified Markovich that the dumpsters located at 3301 Highway 190 (a Dollar Tree store) were not screened, in violation of city ordinance 9.28.[9] Markovich confirmed that the dumpsters behind his property were screened, and notified the City that his property was confused with the adjacent ones at the Dollar Tree, which were not.[10] Nonetheless, on December 14, 2011, Markovich was personally issued a citation by Christopher Brown ("Brown") and another notice of violation for the Dollar Tree property.[11]

In December 2011, Markovich was personally cited for failing to get an unspecified permit at 725 North Causeway Boulevard, a property owned by Diamond Properties.[12] Markovich met with the City's counsel and other officials to explain that the he did not own the property subject to the first citation, and that no work requiring a permit had been done on the property subject to the second citation.[13] Markovich did not attend court for hearing on these citations as he was under the impression the matters were settled.[14]

Subsequently, Mayor Don Villere requested Markovich's presence at a meeting regarding signage on another property.[15] On October 23, 2012, when Markovich arrived he was publicly arrested on an outstanding warrant issued by the Mayor's court for dumpster violations and for failure to appear.[16] A year and a half later, the case was nolle prossed by the city prosecutor for lack of evidence.[17] However, the charges were reinstated in August 2014, and at trial in October 2014, Markovich was acquitted of the dumpster charge but found guilty of the permit violation and failure to appear.[18]

In August 2013, Plaintiffs filed this action asserting due process and equal protection constitutional claims under 42 U.S.C. ยง 1983, as well as state law claims for: defamation; tortious interference with business relations and diminution of property value; and, negligence against the City of Mandeville, Donald J. Villere (individually and in his official capcity as Mayor of the city of Mandeville), and Christopher Brown (individually and in his official capacity as Building Official of the Department of Planning and Development).[19]

Plaintiffs have moved for summary judgment that "Defendants have unconstitutionally deprived Markovich of his property and liberty, " in violation of the U.S. Constitution and pursuant to 42 U.S.C. 1983.[20]

III. LAW AND ANALYSIS

A. Summary Judgment Standard

Summary judgment is warranted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-2 (1986); Little Liquid Air Cop., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers "all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). The Court must "draw inferences most favorable to the party opposing the motion, and take care that no party will be improperly deprived of a trial of disputed factual issues. John v. Louisiana, 757 F.2d 698, 708 (5th Cir.1985).

If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.'" Int'l ...


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