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Bolgiano v. Garber

United States District Court, W.D. Louisiana, Lafayette Division

February 26, 2018

MARK GARBER, in his official capacity as the duty elected Sheriff of Lafayette Parish, et al.



         Pending before the undersigned on referral from the district judge is the “Rule 12(b)(1) Motion” filed by Mark Garber, in his official capacity as Sheriff of Lafayette Parish, and Freddie Laque (collectively, “the defendants”), who move this Court to stay or dismiss the plaintiff's complaint pursuant to Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), on grounds a parallel lawsuit is pending in state court. The defendants argue the plaintiff's claims should either be dismissed or, alternatively, stayed pending resolution of the parallel state court proceeding. The motion is opposed by the plaintiff Shayna Bolgiano [Doc. 8], and the defendants have filed a Reply brief [Doc. 11]. For the following reasons, it is RECOMMENDED that the motion be GRANTED, and that the instant matter be DISMISSED WITHOUT PREJUDICE.

         I. Background

         In the instant motion, the defendants argue the plaintiff has filed a parallel state court proceeding in which the allegations are virtually identical to the allegations in the instant lawsuit. In the state court proceedings, the plaintiff alleges she was hired by the Lafayette Parish Sheriff's Office on or about May 11, 2011. At the time, Michael W. Neustrom was the duly-elected Sheriff of Lafayette Parish. The plaintiff alleges she was transferred to the position of Security Support Deputy within the Juvenile Assessment Center Unit of the Youth Services Section on or about April 7, 2014, and that on or about March 2, 2015, Lt. Freddie Laque was transferred to the position of Lieutenant over the Youth Services Section, thus making him her direct supervisor. The plaintiff alleges that soon after March 2, 2015, Laque “began targeting [her] with sexual and humiliating comments, pressuring text messages, as well as unwanted physical contact.” The plaintiff alleges she ultimately reported the incidents through formal internal grievances but “faced deliberate hindrances and blatant attempts to disregard her allegations against Lt. Laque.” The plaintiff further alleges she submitted a report to Risk Management on August 24, 2015 detailing the treatment she was experiencing, but that despite meeting with her, Sheriff's Officer personnel did not take any action to address her grievances. The plaintiff also alleges she was subjected to retaliation for filing the report, but that on January 14, 2016, Sheriff Neustrom found Laque had violated certain employment policies and suspended him for six days.

         In her state court petition, the plaintiff alleges claims for battery and intentional infliction of emotional distress, and alleges the Lafayette Parish Sheriff's Office was vicariously liable for Laque's actions. As for Sheriff Neustrom, the plaintiff alleges he created a hostile work environment and ignored state law violations that occurred in the workplace. The plaintiff also argues Sheriff Neustrom allowed Mark Garber exclusive access to his office before and after the election, in violation of state law.

         The plaintiff filed her state court lawsuit on November 17, 2015. The plaintiff thereafter filed a charge of discrimination with the EEOC on April 26, 2016, and the defendants subsequently moved to stay the state court suit until the EEOC rendered a decision, a request that was denied by the state court. Discovery continued, and Sheriff Mark Garber was substituted as the proper party defendant after winning the sheriff's election.

         The plaintiff filed the federal lawsuit on September 13, 2017, and the defendants subsequently filed the instant motion to dismiss, or alternatively, to stay, on November 14, 2017. In their motion, the defendants seek a dismissal, or stay, of the instant matter pending resolution of the state court lawsuit.

         II. Legal Standard

         A motion to stay or dismiss based on abstention raises the question of whether a court should exercise subject matter jurisdiction and is properly considered under Rule 12(b)(1) of the Federal Rules of Civil Procedure.

         A Rule 12(b)(1) motion to dismiss allows a party to challenge the exercise of the Court's subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The Court will accept all well-pleaded allegations in the complaint as true, and construe those allegations in a light most favorable to Plaintiff. Truman v. United States, 26 F.3d 592, 594 (5th Cir.1994). Moreover, the Court may consider affidavits and other evidence outside the pleadings in resolving a motion to dismiss under Rule 12(b)(1). Williamson v. Tucker, 645 F.2d 4047, 412-13 (5th Cir.1981). The party asserting jurisdiction bears the burden of proof for a 12(b)(1) motion to dismiss. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001).

         The issue of whether to abstain in this matter is governed by the United States Supreme Court's decision in Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). In Colorado River, the Supreme Court instructed that federal courts have a “virtually unflagging obligation ... to exercise the jurisdiction given to them.” 424 U.S. at 817. “In situations involving the contemporaneous exercise of concurrent jurisdictions, ” governing principles “rest on considerations of ‘(w)ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.'” Id., quoting Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183, 72 S.Ct. 219, 96 L.Ed. 200 (1952). The Fifth Circuit has interpreted Colorado River abstention to require a two-part analysis: First, courts must consider whether there are parallel proceedings pending in state and federal court. RepublicBank Dallas, Nat. Ass'n v. McIntosh, 828 F.2d 1120, 1121 (5th Cir.1987). If the proceedings are parallel, “exceptional circumstances” must exist to warrant abstention. Kelly Inv., Inc. v. Cont'l Common Corp., 315 F.3d 494, 497 (5thCir.2002). See also Brown v. Pacific Life Insurance Co., 462 F.3d 384, 394 (5th Cir. 2002); Kelly Ins., Inc. v. Cont'l Common Corp., 315 F.3d 494, 497 (5th Cir. 2002). Suits are parallel if “substantially the same parties are litigating substantially the same issues simultaneously in two fora.PPG Indus., Inc. v. Cont'l Oil Co., 478 F.2d 674, 682 (5th Cir. 1973); AAR Int'l., Inc. v. Nimelias Enter. S.A., 250 F.3d 510, 518 (7th Cir. 2001).

         There are six factors for determining whether “exceptional circumstances” exist: (1) the assumption by either state or federal court over a res; (2) relative inconvenience of the fora; (3) the avoidance of piecemeal litigation; (4) the order in which jurisdiction was obtained by the concurrent fora; (5) the extent to which federal law provides the rules of decision on the merits; and (6) the adequacy of the state proceedings in protecting the rights of the party invoking federal jurisdiction. Brown, 462 F.3d at 395. “[T]he decision whether to dismiss a federal action because of parallel state-court litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone, Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 22 (1983).

         III. Analysis

         A. Step 1 - ...

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