United States District Court, W.D. Louisiana, Lafayette Division
B. WHITEHURST, MAG. JUDGE
G. JAMES, UNITED STATES DISTRICT JUDGE
the Court is a Motion to Dismiss [Doc. No. 8] filed by
Defendant City of New Iberia (“the City”). The
City moves to dismiss Plaintiff's claim arising under 42
U.S.C. § 1983, and, should the Court dismiss the Section
1983 claim, it moves the Court to decline to exercise
supplemental jurisdiction over Plaintiff's state law
negligence claim. [Doc. No. 8-1]. The City adds that, if the
Court dismisses Plaintiff's federal claim against the
City and decides to exercise supplemental jurisdiction over
Plaintiff's negligence claim, the Court should dismiss
the negligence claim because the City is immune under La.
Rev. Stat. § 9:2798.1. Id.
December 18, 2017, Magistrate Judge Carol B. Whitehurst
issued a Report and Recommendation [Doc. No. 22] in which she
recommends granting the City's motion, dismissing
Plaintiff's Section 1983 claim with prejudice, but
exercising supplemental jurisdiction over Plaintiff's
state law negligence claims. The Magistrate Judge did not
address the City's immunity argument.
objected to the Report and Recommendation on December 31,
2017. [Doc. No. 23]. On January 16, 2018, the City responded
to Plaintiff's objection and filed its own
untimely[1" name="FN1" id=
"FN1">1] objection. [Doc. No. 24].
de novo review, the Court ADOPTS the facts and analysis in
the Report and Recommendation. The Court issues this Ruling to
address the City's objection that the Magistrate Judge
did not consider its immunity argument.
initial motion, the City argued that Plaintiff's
negligence claim should “be dismissed on the basis of
discretionary immunity” under La. Rev. Stat. §
9:2798.1. [Doc. No. 8-1, p. 6]. The City argues,
specifically, that Plaintiff “provides absolutely no
facts to support [his] allegation” of gross negligence.
plaintiff can prove that a public entity was grossly
negligent, the public entity is not entitled to immunity.
Mercer v. Lowe, 51, 333 (La.App. 2 Cir. 4/5/17), 217
So.3d 1235, 1239. Conversely, failing to prove that a public
entity was grossly negligent does not necessarily render the
public entity immune because immunity under Section 2798.1 is
an affirmative defense, on which the City bears the burden of
proof. See Molina v. City of New Orleans, 2001-1411
(La.App. 4 Cir. 10/2/02), 830 So.2d 994, 1001; Johnson v.
Orleans Par. Sch. Bd., 2006-1223 (La.App. 4 Cir.
1/30/08), 975 So.2d 698, 710 (“[T]he defendants raised
the ‘discretionary function' immunity as an
affirmative defense in their answers and pleadings. As such,
the defendants had the burden of proof on this affirmative
defense. It must be proved by a preponderance of the
evidence.”). Thus, even if Plaintiff fails to plausibly
allege that the City was grossly negligent-or, more
precisely, even if Plaintiff fails to prove gross
negligence-the City must nevertheless demonstrate that it is
entitled to immunity.
particular, the City must demonstrate that a “federal
statute, regulation, or policy [does not] specifically
prescribe a course of action . . . .” Fowler v.
Roberts, 1');">556 So.2d 1, 15 (La. 1989). If the City proves
that discretion is involved, the City must then prove
“that [the] discretion is the kind which is shielded by
the exception, that is, one grounded in social, economic or
political policy.” Id. Here, the City does not
address what it must prove, which is predictable considering
the procedural posture of the instant motion. As one court
held, the “discretionary function immunity is not
available . . . at the motion to dismiss stage” because
the defendant must introduce evidence to show that the
discretion at issue was “‘grounded in social,
economic, or political policy.'” Bouchereau v.
Gautreaux, No. CV 14-805-JWD-SCR, 2015 WL 5321285, at
*15 (M.D. La. Sept. 11, 2015) (quoting Johnson 975
So.2d at 710). “The application of this affirmative
defense is a question of fact to be determined through a
trial.” Johnson, 975 So.2d at 710 (internal
quotation marks and quoted source omitted).
an argument similar to the City's, the United States
District Court for the Eastern District of Louisiana
[T]he defendants' theory of improper joinder rests on an
affirmative defense [of immunity under Section 9:2798.1], not
on the plaintiffs' failure to articulate a claim or upon
evidence showing that the plaintiffs have misstated facts.
The burden of establishing this defense rests on the
defendants. Here, the defendants have offered no evidence on
the issue of immunity. Nor is the defense evident from the
face of the complaint.
Anh Ngoc Vo v. Chevron U.S.A., Inc., No. CIV.A.
12-1341, 2012 WL 6002759, at *7 (E.D. La. Nov. 30, 2012)
(internal citations and footnote omitted).
the City makes no attempt to meet its burden of establishing
that it is immune from Plaintiffs state law negligence claim.
Consequently, and for the reasons stated in the Magistrate
Judge's Report and Recommendation, the Court will
maintain supplemental jurisdiction over Plaintiffs state law
the City's Motion to Dismiss [Doc. No. 8] is GRANTED IN
PART AND DENIED IN PART. The motion is GRANTED as to
Plaintiffs Section 1983 claims against the City, and these
claims are DISMISSED WITH PREJUDICE. The motion is DENIED to
the extent the City seeks immunity from Plaintiffs state ...