United States District Court, M.D. Louisiana
LEVI E. ROBERTSON
STATE OF LOUISIANA, ET AL.
RULING AND ORDER
A. JACKSON, CHIEF JUDGE
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).
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
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.
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).
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).
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
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).
MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
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).
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 ...