United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
Erroll G. Williams, Lawrence E. Chehardy, Jimmie Thorns, Jr.,
and Robert D. Hoffman, Jr. move the Court to dismiss plaintiff
Howard Brown's complaint. Because the Court does not have
jurisdiction to entertain plaintiff's complaint, the
motions to dismiss are GRANTED.
case arises out of a tax dispute. Plaintiff believes that the
application of Louisiana's ad valorem tax scheme
to plaintiff's property is unconstitutional under both
the United States and Louisiana constitutions. On October 5,
2016, Plaintiff Howard Brown filed this pro se
lawsuit alleging that defendants conspired to deprive
plaintiff of his rights. At the time the complaint was filed,
defendant Williams was the Assessor of Orleans Parish,
Chehardy and Thorns were members of the Louisiana Tax
Commission, and Hoffman was special counsel for the
Commission. Plaintiff's complaint alleges that, in
imposing an ad valorem tax on Brown's property,
the defendants conspired to violate plaintiff's
constitutional rights. Plaintiff seeks $20, 800, 000 and
costs for his suit.
October 13, 2016, defendant Williams filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
On October 31, the remaining defendants filed a motion to
dismiss under Rule 12(b)(1) and 12(b)(6) as well as a motion
to strike under Rule 12(f). Plaintiff filed a response on
November 15, 2016,  and defendants replied three days
later.Defendants' motions to dismiss argue
that the Court lacks jurisdiction to hear this case pursuant
to the Tax Injunction Act, and possibly under the Eleventh
Amendment. The motions also argue that even if this Court had
jurisdiction, plaintiff has failed to state a claim upon
which relief can be granted.
Civ. P. 12(b)(1) requires dismissal of an action if the court
lacks jurisdiction over the subject matter of the
plaintiff's claim. Motions submitted under that rule
allow a party to challenge the court's subject matter
jurisdiction based upon the allegations on the face of the
complaint. Barrera-Montenegro v. United States, 74
F.3d 657, 659 (5th Cir. 1996); see also Lopez v. City of
Dallas, No. 03-2223, 2006 WL 1450420, at *2 (N.D. Tex.
May 24, 2006).
court lacks the statutory or constitutional power to
adjudicate a claim, the claim must be dismissed for lack of
subject matter jurisdiction. Home Builders Ass'n of
Mississippi, Inc. v. City of Madison, Miss., 143 F.3d
1006, 1010 (5th Cir. 1998). A court has federal question
jurisdiction when the plaintiff's claim arises under the
Constitution, laws, or treaties of the United States. 28
U.S.C. § 1331. A claim arises under federal law when
federal law creates the cause of action. Grable &
Sons Metal Prods., Inc. v. Darue Eng'g & Mfg.,
545 U.S. 308, 312 (2005). When “a private citizen
relies on a federal statute as the basis of federal question
jurisdiction, that statute must provide a private cause of
action, or else a federal court will not have subject matter
jurisdiction to hear the dispute.” Lowe v.
ViewPoint Bank, 972 F.Supp.2d 947, 954 (N.D. Tex. 2013)
(citing Merrell Dow Pharmaceuticals Inc. v.
Thompson, 478 U.S. 804, 817 (1986)).
ruling on a Rule 12(b)(1) motion to dismiss, the court may
rely on (1) the complaint alone, presuming the allegations to
be true, (2) the complaint supplemented by undisputed facts,
or (3) the complaint supplemented by undisputed facts and by
the court's resolution of disputed facts. Den Norske
Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424
(5th Cir. 2001); see also Barrera-Montenegro, 74
F.3d at 659. A court's dismissal of a case for lack of
subject-matter jurisdiction is not a decision on the merits,
and the dismissal does not necessarily prevent the plaintiff
from pursuing the claim in another forum. See Hitt v.
City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977).
defendant attacks the complaint because it fails to state a
legally cognizable claim, Rule 12(b)(6) provides the
appropriate challenge. To survive a Rule 12(b)(6) motion to
dismiss, plaintiffs must plead enough facts “to state a
claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547
(2007)). A claim is facially plausible when a plaintiff
pleads facts that allow the court to “draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678. A court must
accept all well-pleaded facts as true and must draw all
reasonable inferences in favor of the plaintiffs. Lormand
v. U.S. Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir.
2009); 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,
556 U.S. at 678.
legally sufficient complaint must establish more than a
“sheer possibility” that plaintiffs' claim is
true. Id. It need not contain detailed factual
allegations, but it must go beyond labels, legal conclusions,
or formulaic recitations of the elements of a cause of
action. Twombly, 550 U.S. at 555. In other words,
the face of the complaint must contain enough factual matter
to raise a reasonable expectation that discovery will reveal
evidence of each element of the plaintiffs' claim.
Lormand, 565 F.3d at 255-57. If there are
insufficient factual allegations to raise a right to relief
above the speculative level, Twombly, 550 U.S. at
555, or if it is apparent from the face of ...