United States District Court, W.D. Louisiana, Shreveport Division
HERSY JONES, JR.
LOUISIANA SUPREME COURT, ET AL.
MAGISTRATE JUDGE HORNSBY
MAURICE HICKS, Jk. UNITED STATES DISTRICT JUDGE
the Court are several Rule 12(b)(1), 12(b)(5), and 12(b)(6)
Motions to Dismiss Plaintiff Hersy Jones, Jr.'s
(“Jones”) federal civil rights complaint by
Defendants the Louisiana Supreme Court, Charles B.
Plattsmier, Jr. (“Plattsmier”), Robert Kennedy
(“Kennedy”), and the Louisiana Attorney
Disciplinary Board (“the Board”) (collectively
“Defendants”). See Record Documents 7,
12, and 33. Several other Motions are also before the Court:
(1) Jones' Motion to Strike Plattsmier and Kennedy's
Motion to Dismiss; (2) the Louisiana Supreme Court's
Motion to Set Aside Default; and (3) Jones' Motion to
Reconsider the Court's denial of his Motion for Leave to
File a Supplemental Memorandum in Opposition to Plattsmier
and Kennedy's Motion to Dismiss. See Record
Documents 17, 34, and 44.
reasons stated in the instant Memorandum Ruling,
Defendants' Rule 12(b)(1) Motions (Record Documents 7,
12, and 33) are hereby GRANTED, and all of
Jones' claims are hereby DISMISSED WITHOUT
PREJUDICE. The Louisiana Supreme Court's Motion
to Set Aside Default (Record Document 34) is hereby
GRANTED. Jones' Motion to Strike
Plattsmier and Kennedy's Motion to Dismiss (Record
Document 17) and Jones' Motion to Reconsider the
Court's denial of his Motion for Leave to File a
Supplemental Memorandum in Opposition to Plattsmier and
Kennedy's Motion to Dismiss (Record Document 44) are
hereby DENIED AS MOOT.
AND PROCEDURAL BACKGROUND
an African-American, is a former attorney who was disbarred
from the Louisiana bar in 2007. The facts underlying
Jones' disbarment may be found in In re Jones,
952 So.2d 673 (La. 2007). In the instant action, Jones
asserts several federal constitutional claims against
Defendants, primarily basing these claims on arguments that
Defendants treated him differently than white attorneys who
committed similar violations of professional conduct rules.
See Record Document 1. Jones argues that
Defendants' actions violated his First Amendment rights
to freedom of speech and association, his rights under the
Takings Clause of the Fifth Amendment, and his rights under
the Due Process Clause of the Fourteenth Amendment. See
id. at 2. He also asserts various defects in the
attorney discipline procedure, such as allegations that the
formal disciplinary charges filed against him did not match
the ultimate conclusions made by the Hearing Committee
assigned to hear the disciplinary case against him. See
id. at 11.
filed the instant action on December 1, 2015. See
id. Defendants Plattsmier and Kennedy filed their Motion
to Dismiss on May 4, 2016. See Record Document 7.
The Board filed its Motion to Dismiss on May 20, 2016.
See Record Document 12. Jones filed a Memorandum in
Opposition and Motion to Strike Plattsmier and Kennedy's
Motion to Dismiss on June 1, 2016. See Record
Document 17. On June 6, 2016, Jones filed a Supplemental
Memorandum in Opposition to Plattsmier and Kennedy's
Motion to Dismiss, which the Court construed as a proposed
supplemental memorandum and Motion for Leave to File such a
memorandum. See Record Documents 20 and 43.
August 2, 2016, Jones requested that the Clerk of Court enter
a default as to the Louisiana Supreme Court for failing to
file a timely answer. See Record Document 29. On
August 4, 2016, the Clerk of Court entered a default against
the Louisiana Supreme Court. See Record Document 32.
On August 8, 2016, the Louisiana Supreme Court filed a Motion
to Dismiss and a Motion to Set Aside Default. See
Record Documents 33 and 34. On October 3, 2016, the Court
denied Jones' Motion for Leave to file his proposed
Supplemental Memorandum. See Record Document 43. On
October 23, Jones filed a Motion for Reconsideration of the
Court's decision on his Motion for Leave to File his
Supplemental Memorandum. See Record Document 44.
Jones has responded to all of the Motions to Dismiss.
See Record Documents 17, 22, and 38.
The Rule 12(b)(1) Standard
Rule of Civil Procedure 12(b)(1) allows parties to seek
dismissal of a case on the ground that the court lacks
subject matter jurisdiction over the action. When a defendant
files a Rule 12(b)(1) motion, the plaintiff, as the party
asserting federal jurisdiction, bears the burden of
establishing that the Court has jurisdiction. See New
Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d
321, 327 (5th Cir. 2008). When a party challenges the
court's subject matter jurisdiction based only on the
complaint, it is a "facial attack, " and the court
scrutinizes the pleadings, taking the allegations as true, to
determine whether the claimant has sufficiently alleged
subject matter jurisdiction. Menchaca v. Chrysler Credit
Corp., 613 F.2d 507, 511 (5th Cir. 1980). Conclusory
allegations, however, do not have to be taken as true.
See Lacano Invs., LLC v. Balash, 765 F.3d 1068, 1071
(9th Cir. 2014).
The Rule 12(b)(6) Standard
8(a)(2) of the Federal Rules of Civil Procedure governs the
requirements for pleadings that state a claim for relief,
requiring that a pleading contain "a short and plain
statement of the claim showing that the pleader is entitled
to relief." The standard for the adequacy of complaints
under Rule 8(a)(2) is now a "plausibility" standard
found in Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007), and its progeny. Under this standard,
"factual allegations must be enough to raise a right to
relief above the speculative level . . . on the assumption
that all the allegations in the complaint are true (even if
doubtful in fact)." Twombly, 550 U.S. at
555-556. If a pleading only contains "labels and
conclusions" and "a formulaic ...