United States District Court, W.D. Louisiana, Alexandria Division
ANTHONY T. BROWN, ET AL.
CITY OF ALEXANDRIA, ET AL.
PEREZ-MONTES, MAGISTRATE JUDGE
MAURICE HICKS, JR., CHIEF JUDGE, UNITED STATES DISTRICT COURT
the Court is Defendants the City of Alexandria (the
“City”), the Alexandria City Council (“City
Council”), and the Alexandria Police Department's
(“APD”) (collectively the
“Defendants”) unopposed “Motion to
Dismiss” (Record Document 9) seeking to dismiss all
claims made against the City Council and APD pursuant to
Federal Rule of Civil Procedure 12(b)(6). For the reasons
contained in the instant Memorandum Ruling, Defendants'
Motion is GRANTED.
their state court Petition, Plaintiffs Anthony T. Brown and
Bianca S. Brown (the “Plaintiffs”) named the City
Council and APD as Defendants. See Record Document
1-5. On June 23, 2017, this matter was removed to federal
court pursuant to 28 U.S.C. §§ 1331 and 1441.
See Record Document 1. Defendants filed its Answer
on March 27, 2018, raising the defense of “fail[ing] to
state a claim upon which relief may be granted.” Record
Document 8. On May 1, 2018, Defendants filed the instant
motion to dismiss seeking to dismiss all claims against the
City Council and APD pursuant to Federal Rule of Civil
Procedure 12(b)(6), asserting neither have the capacity to be
sued. See Record Document 9. Plaintiffs have not
opposed the instant motion.
the Federal Rules of Civil Procedure, any motion filed under
Rule 12(b) “shall be made before pleading if a further
pleading is permitted.” Fed. R. Civ. Proc. 12(b).
Although Defendants filed an answer to the complaint before
submitting their Rule 12(b)(6) motion, they listed
“fail[ure] to state a claim for which relief may be
granted” as an affirmative defense in their answer.
Record Document 8. In that situation, several courts
interpreting Rule 12(b)(6) have chosen to consider a
post-answer motion to dismiss as properly before the court as
long as the movant also raised the defense of failure to
state a claim in his or her answer. See Delhomme v.
Caremark Rx Inc., 232 F.R.D. 573, 575-76 (N.D. Tex.
2005), citing Texas Taco Cabana, L.P. v. Taco Cabana of
New Mexico, 304 F.Supp.2d 903, 907 (W.D. Tex. 2003);
Quintanilla v. K-Bin, Inc., 993 F.Supp. 560, 562
(S.D.Tex.1998). If the defendant has previously included
failure to state a claim for which relief may be granted as
an affirmative defense in his or her answer to the complaint,
“thereby giving notice” of the defense, then
courts will generally permit a Rule 12(b)(6) motion to be
filed after the answer. See id.; see also
5B Wright & Miller, Federal Practice and Procedure: Civil
§ 1361 at 93 & n.6 (3d ed. 2004) (collecting cases).
Since Defendants listed the defense of failure to state a
claim as an affirmative defense in their responsive
pleadings, the Court finds that they properly preserved the
right to file a motion to dismiss under Rule 12(b)(6).
Therefore, the Court finds that Defendants' Rule 12(b)(6)
motion is timely and is properly before the Court.
Rule of Civil Procedure 12(b) does not specifically authorize
a motion to dismiss based on a lack of capacity to be sued.
However, “[t]he Fifth Circuit has implicitly approved
12(b) motions arguing the lack of capacity to be sued.”
Angers ex rel. Angers v. Lafayette Consol.
Gov't, 2007 WL 2908805, *1, n. 1 (W.D. La. 2007),
citing Darby v. Pasadena Police Dep't, 939 F.2d
311 (5th Cir. 1991) (affirming that Pasadena Police
Department had no jural existence and therefore was properly
dismissed from suit). Therefore, the Court will consider
Defendants' Rule 12(b)(6) motion based on a lack of
capacity to be sued.
capacity of a non-corporate entity to sue or be sued is
governed by the law of the state where the district court is
located. See Fed.R.Civ.P. 17(b)(3). Under the
Louisiana Civil Code, there are two kinds of persons that are
capable of being sued: natural persons and juridical persons.
See La. Civ. Code art. 24.4. Article 24 defines a
natural person as “a human being” and a juridical
person as “an entity to which the law attributes
personality, such as a corporation or partnership.”
Id. Natural persons enjoy general legal capacity to
have rights and duties, but juridical persons are
“creature[s] of the law and by definition, [have] no
more legal capacity than the law allows.” Angers ex
rel. Angers v. Lafayette Consol. Gov't., 2007 WL
2908805 at *2 (citations omitted). If a person is neither
natural nor juridical, then it does not have procedural
capacity to sue or be sued. See Roy v. Alexandria City
Council, 2007-1322, p. 4 (La.App. 3 Cir. 5/7/08), 984
So.2d 191, 194. “[I]n the absence of law providing that
an entity may sue or be sued, the entity lacks such
capacity.” Dantzler v. Pope, 2009 WL 959508,
at *1 (E.D. La. 2009), citing City Council of Lafayette
v. Bowen, 649 So.2d 611 (La.App. 3 Cir. 1994).
Louisiana, “courts have consistently held that city
councils, parish sheriff's offices, and city permit
offices are not separate government units with the capacity
to sue or be sued.” Urban Hous. of Am., Inc. v.
City of Shreveport, 2013 WL 587894, *4 (W.D. La. 2013),
citing City Council of City of Lafayette v. Bowen,
94-584 (La.App. 3 Cir. 11/2/94), 649 So.2d 611; Roy,
984 So.2d at 195; Cozzo v. Tangipahoa Parish Council-
President Government, 279 F.3d 273, 283 (5th Cir. 2002);
Porche v. St. Tammany Parish Sheriff's Office,
67 F.Supp.2d 631 at 635 (E.D. La. 1999); Angers ex rel.
Angers, 2007 WL 2908805 at *2; Batiste v.
Bonin, 2007 WL 1791219 (W.D. La. 2007). These divisions
are branches or parts of the greater corporate body politic
or juridical entity, i.e., the city itself, are not
autonomous or self-governing legal entities, and therefore do
not possess the capacity to be sued. See Bowen, 649
So.2d 611. Likewise, municipal police departments are
entities that lack such capacity. See Neil v.
Schlueter, 2010 WL 497763, *4 (E.D. La. 2010).
the above, the Court finds that neither the City Council nor
APD are juridical entities susceptible of being sued. As
such, Plaintiffs are not entitled to any relief against the
City Council or APD under the legal theories they allege in
on the foregoing analysis, Defendants the City, the City
Council, and APD's unopposed “Motion to
Dismiss” (Record Document 9) seeking to dismiss all
claims made against the City Council and APD pursuant ...