United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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
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
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.
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).
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).
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).
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