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Buisson Creative Strategies, LLC, v. Roberts

United States District Court, E.D. Louisiana

June 21, 2017


         SECTION “H”



         Before the Court are Defendant Jefferson Parish's Alternative Motion for Dismissal Under Rule 12(b)(1) for Lack of Subject Matter Jurisdiction, Rule 12(b)(6) for Failure to State a Claim Upon Which Relief Can be Granted, and/or Rule 56 for Summary Judgment (Doc. 167) and Defendant Chris Roberts's Motion to Dismiss and/or Motion for Summary Judgment for Lack of Subject Matter Jurisdiction (Doc. 169). For the following reasons, these Motions are GRANTED.


         Plaintiffs Buisson Creative Strategies (“BCS”) and Gregory Buisson bring this action against Christopher Roberts and Jefferson Parish alleging numerous constitutional violations. Plaintiff BCS is a business that provides public relations, advertising, marketing, event management, graphic design, and consulting services. Prior to November 4, 2015, it had numerous contracts with Jefferson Parish including providing services to the Jefferson Parish Convention and Visitors Bureau, event management services for Lafreniere Park, and event management services associated with the review stands for Jefferson Parish's East Bank Mardi Gras parades. During the fall 2015 primary election for the Jefferson Parish Council, Plaintiffs provided consulting services to Louis Congemi in his race for Parish Council against incumbent Defendant Christopher Roberts. BCS produced various commercials for the Congemi campaign alleging that Roberts was unqualified for office because of, inter alia, his alleged failure to file income tax returns.

         Roberts ultimately won re-election. According to the Complaint, he was intent on retaliating against Plaintiffs for their role in creating the Congemi attack ads. Plaintiffs aver that Roberts impermissibly used his legislative authority to enact Ordinance 25045 (the “Ordinance”), which had the alleged effect of terminating BCS's contracts with the Parish and its entities. The ordinance provides that any person or firm who has received compensation for the management or consulting of political campaigns for a candidate for the council or for Jefferson Parish President during an “election cycle” cannot be awarded contracts with the Parish regardless of whether a candidate wins or loses. It also purported to terminate such individual's existing contracts with the Parish. Plaintiffs aver that this ordinance is narrowly tailored to target them and only them. They allege that the ordinance violates the contracts clause, the First Amendment, equal protection, due process, and the prohibition on bills of attainder. They seek an injunction prohibiting enforcement of the ordinance and damages pursuant to 42 U.S.C. § 1983.


         If, at any time, the court determines that it lacks subject-matter jurisdiction, the court must dismiss the action.[1] “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.”[2] As a prerequisite to jurisdiction the U.S. Constitution requires, at a minimum, that a case present an actual “case or controversy” as defined by article III.[3] Standing is an element of the constitutional requirement of “case or controversy, ”[4] and lack of standing deprives the court of subject matter jurisdiction.[5] The party seeking to invoke federal jurisdiction has the burden of establishing standing.[6]


         At the Court's behest, Defendants filed the instant Motions challenging Plaintiffs' standing to bring this suit. Defendants cite primarily to the fact that Plaintiffs have lost no parish contracts since the enactment of the Ordinance and that the subject Ordinance has been suspended by the Parish Council pending the resolution of this litigation. The justiciability doctrines of standing, mootness, political question, and ripeness all stem from the case or controversy requirement set forth in Article III of the United States Constitution.[7] The basic requirements of standing, as set forth by the Supreme Court, are as follows:

First, the plaintiff must have suffered an “injury in fact”-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural' or ‘hypothetical, ' ” Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely, ” as opposed to merely “speculative, ” that the injury will be “redressed by a favorable decision.”[8]

         Similar to standing, the ripeness doctrine requires dismissal of cases that are merely abstract or hypothetical.[9] “[E]ven where an issue presents purely legal questions, the plaintiff must show some hardship in order to establish ripeness.”[10] The rationale behind this rule is “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.”[11]

         The party invoking federal jurisdiction bears the burden of establishing standing.[12] “Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.”[13] Defendants have each filed Motions challenging Plaintiffs' standing in this action, pointing to their lack of damages and the suspension of the Ordinance at issue.

         Plaintiffs respond in opposition to Defendants' Motions, arguing (1) that they have established standing on their request for injunctive relief based on their First Amendment Claims, (2) that they have similarly established standing on their request for injunctive relief on their Equal Protection claims, and (3) that they have sustained sufficient damages to establish standing on their remaining claims. The Court will address these arguments in turn.

         I. First Amendment Claims

         In the context of constitutional claims, particularly First Amendment claims, the standing requirements are somewhat relaxed. “It follows from Lujan that if a plaintiff is an object of a government regulation, then that plaintiff ordinarily has standing to challenge that regulation.”[14] In First Amendment pre-enforcement challenges, chilling a plaintiff's speech is a constitutional harm adequate to satisfy the injury-in-fact requirement.”[15] To establish standing, however, “a claimant must present an injury that is concrete, particularized, and actual or imminent; fairly traceable to the defendant's challenged behavior; and likely to be redressed by a favorable ruling.”[16] Additionally, “[t]o prove an injury in fact sufficient ‘to raise a First ...

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