United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
C. MICHAEL HILL, Magistrate Judge.
Pending before the undersigned for report and recommendation is Defendant Shane Romero's ("Shane") Motion to Dismiss Pursuant to Rule 12(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1367 filed on January 2, 2015. [rec. doc. 7]. Plaintiff, Iberia Parish Government ("IPG"), filed opposition on January 27, 2015. [rec. doc. 19]. Shane filed a reply on February 11, 2015. [rec. doc. 22]. Oral argument was held on April 6, 2015. [rec. doc. 26].
For the following reasons, I recommend that the motion be GRANTED.
IPG filed suit in this Court asserting subject matter jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 1983 for claims allegedly arising under federal (both statutory and constitutional) law, and supplemental jurisdiction under 28 U.S.C. § 1367 for claims arising under state law.
On January 7, 2015, Shane filed the instant Motion to Dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. Proc. 12(b)(1) and 12(b)(6). A brief recitation of the allegations in the Complaint are necessary.
The Iberia Parish Government Home Rule Charter for a Council-President Government ("Charter") was approved by Iberia Parish voters in a special election held on March 26, 1983, and was amended in a special election held on July 20, 1996. [Complaint, ¶ 6]. Section 1-02 of the Charter establishes the Iberia Parish Council as the legislative branch of the Iberia Parish Government. [Complaint, ¶ 7].
Section 1-05 of the Charter provides, in pertinent part, as follows:
The Iberia Parish government shall have the right, power and authority to pass all ordinances or resolutions requisite or necessary to promote, protect and preserve the general welfare, safety, health, peace and good order of the Parish... subject only to the limitation that the same shall not be inconsistent with the Constitution or expressly denied by the general law applicable to the Parish.
Section 2-08 of the Charter provides, in pertinent part, that:
The Parish council may make investigations into the affairs of the Parish government and the related conduct of any Parish official, officer, employee, department, office, or agency and for this purpose may subpoena witnesses, administer oaths, take testimony and require the production of evidence. Investigations shall be for a specified purpose and may be undertaken only by the affirmative vote of a majority of the members of the council at a regular meeting of the council.
[Complaint, ¶ 9].
Section 9-01 designates the District Attorney as the legal advisor to the Council. [Complaint, ¶ 10].
Shane is the son of Iberia Parish President, Errol "Romo" Romero ("Romo"), and an attorney. [Complaint, ¶ 11].
Without going into great detail here, suffice it to say that an ongoing political flight has erupted between the Council on one hand, and Shane and Romo on the other hand. This fight is detailed in reports of the Legislative Auditor, the Louisiana Attorney General, and a Special Counsel retained by the Council. [Complaint ¶ ¶ 11-27].
Additionally, complaints have been made to the Louisiana Ethics Board and various resolutions of the Council (which seek to prohibit certain actions of Shane and Romo) have been passed. In essence, the Council asks this Court to enforce its resolutions barring Shane from continuing to access the offices of the Iberia Parish government and serving as an advisor to his father, Romo.
On October 10, 2014, IPG filed this action against Shane asserting claims under 42 U.S.C. § 1983 for violation of the separation-of-powers doctrine; under § 1983 for violation of the right to due process under the Fourteenth Amendment, and for injunctive relief under the "Abuse of Right" doctrine pursuant to Article I, Section 7 of the Louisiana Constitution.
Standard for Motion to Dismiss Under Rule 12(b)(1) and 12(b)(6)
Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the subject matter jurisdiction of the district court to hear a case. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Id. Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist. Id. ( citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)).
The standard for review of a motion to dismiss under Rule 12(b)(1) is the same as that for a motion to dismiss pursuant to Rule 12(b)(6). Harrison v. Safeco Ins. Co. of America, 2007 WL 1244268, at *3 (E.D. La. Jan. 26, 2007). When deciding a Rule 12(b)(6) motion to dismiss, "[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal quotations omitted) ( quoting Martin K. Eby Constr. Co., Inc. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)).
"To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts to state a claim to relief that is plausible on its face.'" In re Katrina Breaches Litig., 495 F.3d at 205 ( quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). "Factual allegations must be enough to raise a right to relief above the speculative level[.]" Id. ( quoting Twombly, 550 U.S. at 555, 127 S.Ct. at 1965).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Twombly, 550 U.S. at 555, 127 S.Ct. 1964-65 (citations, quotation marks, and brackets omitted) (emphasis added). The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) ( citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id.
When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Ramming, 281 F.3d at 161.
If the district court lacks subject matter jurisdiction, dismissal without prejudice is proper so as to allow the claims to be tried in a court with jurisdiction to hear them. In re Great Lakes ...