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Robertson v. State

United States District Court, M.D. Louisiana

February 26, 2018




         Before the Court is the opposed Motion for Leave to File Second Amended Complaint and Class Action (Doc. 16) ("Proposed Second Amended Complaint") filed by Plaintiff, Levi E. Robertson; as well as the Motion to Dismiss (Doc. 7) filed by Defendants, State of Louisiana ("State") and the Louisiana Department of Transportation and Development ("DOTD"). Plaintiff seeks to amend his First Amended Complaint (Doc. 12) to clarify that he and the purported class seek an injunction for prospective relief from an ongoing federal taking by adding as additional Defendants, Dr. Shawn White, Secretary of the Louisiana Department of Transportation ("Secretary White"); and Jay Dardenne, Commissioner of Administration for the Division of Administration, State of Louisiana ("Commissioner Dardenne"). (Doc. 16 at p. 1).

         Defendants, State and DOTD (hereinafter "Defendants"), seek the dismissal of the claims brought by Plaintiff under the Eleventh Amendment of the United States Constitution and Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. An Opposition to each Motion was filed. (Docs. 19, 17). Defendants filed a Reply in Support of the Motion to Dismiss. (Doc. 21). The Court does not have jurisdiction under 28 U.S.C. § 1331. Oral argument is not necessary.

         For the following reasons, the Motion for Leave to File Second Amended Complaint and Class Action (Doc. 16) filed by Plaintiff is DENIED. The Motion to Dismiss (Doc. 7) filed by Defendants is GRANTED.

         I. BACKGROUND

         The facts in the operative complaint and the proposed second amended complaint are identical. Plaintiff asserts that this action arises under the takings clause of the Fifth Amendment, as extended to the states by the Fourteenth Amendment, as Plaintiff claims a constitutional taking of property without just compensation. (Doc. 12 at ¶ 3). Plaintiff further asserts state law claims under the Louisiana State Constitution Article I, Section 4's Takings Clause; as well as, Louisiana Civil Code Articles 655-58 and Articles 667 and 2317.1, which prohibits the alteration or interference with natural drainage servitudes. (Id. at ¶¶ 4-5).

         According to Plaintiff, Defendants State and DOTD constructed a section of Interstate Highway 1-12 ("Interstate 12") across the Tangipahoa River flood plain near the town of Robert, Louisiana, over a distance of approximately one and two tenths mile. (Id. at ¶ 9). Plaintiff asserts that the section of Interstate 12 crossing the flood plain created a dirt embankment or dam across more than 75% of the flood plain with only three small and inadequate openings for water to flow through. (Id. at ¶ 10).

         Plaintiff further alleges that Defendants "were aware that the hydraulic designs for the highway, including the number of bridge openings and their locations and size, were inadequate so that water could not flow under [Interstate 12]" without causing flooding. (Id. at ¶ 12). Allegedly, Defendants "knew in the 1960's of the design flaws of the to-be built highway, and they were warned as early as 1973 that the dirt embankment was causing upstream flooding after only minimal rainfall events." (Id. at ¶ 13). According to Plaintiff, past and future flooding events, namely, the floods in 1983, March 2016, and August 2016, were and will be caused by the openings or lack thereof under Interstate 12. (Id. at ¶ 14). Furthermore, Plaintiff contends that the flooding caused by Defendants' construction of this section of Interstate 12 was so "severe and repetitive" that it has damaged and condemned the property, both real and personal, of thousands of residents and property owners of Tangipahoa Parish resulting in a "governmental taking." (Id. at ¶¶ 15-16).

         On March 10, 2017, Plaintiff filed his Complaint for Damages and Class Action against Defendants. (Doc. 1). On May 23, 2017, Plaintiff filed a motion to amend the complaint ("Motion to Amend"). (Doc. 6). The Motion to Amend sought leave to allow Plaintiff to amend the complaint to assert a claim for injunctive relief, under state law, against Defendants, State and DOTD. (Id.). Subsequently, on May 31, 2017, Defendants filed the instant Motion to Dismiss. (Doc. 7). At the time Defendants filed its Motion, the Court had not ruled on the Motion to Amend. Consequently, Defendants' Motion did not address the claim for injunctive relief that Plaintiff sought to add in his Amended Complaint. (Doc. 12). Thereafter, on July 3, 2017, the Court granted the Motion to Amend (Doc. 10) to which Defendants filed a supplemental memorandum in support of their Motion to Dismiss. (Doc. 13). On September 13, 2017, Plaintiff filed the instant second motion to amend the first amended complaint, which seeks to add Secretary White and Commissioner Dardenne in an effort to defeat Defendants' assertion of sovereign immunity by asserting the Ex parte Young exception. (Doc. 16).


         1. Legal Standard

         If a party is not entitled to amend a pleading as a matter of course pursuant to Rule 15(a)(1), "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed.R.Civ.P. 15(a)(2). "The court should freely give leave when justice so requires." Id. "[A] district court may refuse leave to amend, " however, "if the filing of the amended complaint would be futile." Varela v. Gonzales, 773 F.3d 704, 707 (5th Cir. 2014). Moreover, the Court may deny Plaintiffs Motion to Amend "if the complaint as amended would be subject to dismissal." Ackerson v. Bean Dredging LLC, 589 F.3d 196, 208 (5th Cir. 2009). In other words, a district court "acts within its discretion in denying leave to amend where the proposed amendment would be futile because it could not survive a motion to dismiss." Rio Grande Royalty Co. v. Energy Transfer Partners, L.P., 620 F.3d 465, 468 (5th Cir. 2010) (quoting Briggs v. Mississippi, 331 F.3d 499, 508 (5th Cir. 2003)); see also Vaupel v. United States, 491 Fed.Appx.. 869, 874 (10th Cir. 2012) (affirming district court's refusal to permit amendment on grounds of futility where amended claims would be barred by sovereign immunity).

         2. Sovereign Immunity

         Plaintiff seeks leave to amend his previously amended complaint in an attempt to structure his claims within the narrow exception to the Eleventh Amendment under the Supreme Court of the United States' holding in Ex parte Young, 209 U.S. 123 (1908). In opposition, Defendants argue that Plaintiffs proposed amendments are futile and should be denied pursuant to Rule 15 because, even with the amendments, the Court would continue to ...

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