United States District Court, W.D. Louisiana, Lafayette Division
A. DOUGHTY JUDGE.
REPORT AND RECOMMENDATION
PATRICK J. HANNA UNITED STATES MAGISTRATE JUDGE.
pending are three related motions: (1) a Motion For Summary
Judgment filed by the defendant, Lufte Hassan (“Mr.
Hassan”) (Record Document 24); (2) a Motion To Compel
filed by the plaintiff, Barbara Leleux (“Mrs.
Leleux”) (Record Document 26); and (3) a Motion To
Defer Consideration Of Motion For Summary Judgment filed by
Mrs. Leleux (Record Document 29). All of the motions were
opposed. See Record Documents 28, 32 and 33. The
motions were referred to the undersigned for review, report,
and recommendation in accordance with the provisions of 28
U.S.C. § 636 and the standing orders of this Court.
Considering the evidence, the law, and the arguments of the
parties, and for the reasons fully explained below, it is
recommended that the defendant's motion for summary
judgment be GRANTED and that the plaintiff's claims
against the defendant be DISMISSED WITH PREJUDICE.
Furthermore, it is recommended that the plaintiff's
motion to compel, the plaintiff's motion to defer, and
the defendant's request for attorney's fees be
AND PROCEDURAL BACKGROUND
Leleux alleges that her constitutional rights were violated
when the defendant, Mr. Hassan, failed to provide her with
sufficient notice before garnishing her wages. Mrs. Leleux is
employed by the St. Mary Parish School Board, and is married
to Calvin Leleux.Mr. Hassan secured a money judgment against
Mr. Leleux and others in a lawsuit in the United States
District Court for the Eastern District of Louisiana, in
which Mrs. Leleux was not a party. Mr. Hassan registered the
judgment in this court, by means of an action separate from
this one, in which Mrs. Leleux again was not a party. See
Hassan v. Swiftships Shipbuilders LLC, et al.,
16-mc-0014, Record Document 1 (hereinafter referred to as
“Garnishment Proceeding”). Thereafter, Mr. Hassan
instituted a proceeding under Louisiana law, by which Mrs.
Leleux's wages were sought to be garnished to satisfy the
judgment in favor of Mr. Hassan and against Mr. Leleux.
See id., Record Document 33.
Hassan filed his motion for garnishment on August 21, 2017,
and served it on Mr. Leleux through his counsel of record.
See Record Document 6-2. The garnishment
interrogatories attached thereto inquired as to Mrs.
Leleux's wages and asserted that her wages
“comprise a portion of the community of acquets and
gains existing between [Mrs.] Leleux and Calvin Leleux and
are consequently subject to execution in satisfaction of
Calvin Leleux's indebtedness to Mr. Hassan, ”
citing Louisiana Civil Code Article 2345.See id.
at 3 ¶ 7. On August 23, 2017, the motion for garnishment
was granted in part,  and on September 26, 2017, the United
States Marshal served the motion for garnishment with
garnishment interrogatories on the St. Mary Parish School
Board. The School Board filed its answers to the garnishment
interrogatories on September 27, 2017, and on September 28,
2017, Mrs. Leleux filed the instant complaint.
amount of $1, 163.31 was deducted as a garnishment from Mrs.
Leleux's November 2017 paycheck, which appears to have
been issued near the end of the month. However, that amount
was reimbursed to Mrs. Leleux by the School Board on November
30, 2017. In Mrs. Leleux's December paycheck,
dated December 21, 2017, the amount of $1, 163.31 was again
deducted as garnishment but was reimbursed by the School
Board on December 28, 2017. See Record Document 28,
Declaration of Mrs. Leleux and Exs. A-D. These were the only
funds ever withheld from Mrs. Leleux's wages.
complaint, Mrs. Leleux alleges that she was not served with
any notice of the garnishment proceeding before her wages
were seized. She further asserts that this was a violation of
the due process rights guaranteed by the Fourteenth Amendment
of the United States Constitution. She argues that only after
Mr. Hassan discovered his error of failing to provide notice
to her of the garnishment did he file a second motion for
order of garnishment, of which he notified Mrs. Leleux
“by letter dated November 6, 2017.” Record
Document 28 at 2. Mrs. Leleux brought her lawsuit under 42
U.S.C. § 1983, and she seeks to recover her lost wages,
damages for her emotional pain, suffering and distress, and
Hassan initially filed a motion to dismiss Mrs. Leleux's
claims against him. See Record Document 6. The
undersigned denied the motion to dismiss, finding that Mr.
Hassan's arguments therein went to the merits of Mrs.
Leleux's claim and not to the issue of whether a
plausible claim was stated in the complaint. Therefore, this
Court recommended that the motion to dismiss be denied, as
Mrs. Leleux's allegations had articulated a plausible
claim for relief. See Record Document 10. This
recommendation was adopted by the district court.
See Record Document 15. Thereafter, Mr. Hassan filed
the instant motion for summary judgment, asserting that Mrs.
Leleux “cannot evidence that she was deprived of any
property interest without the sufficient notice and the
opportunity to be heard required by due process because she
has not been deprived of any property and has admitted by
filing her Complaint on September 28, 2017 that she
had actual notice prior to any actual withholding of wages
paid to her by St. Mary Parish School Board.”
See Record Document 24 at 3 (emphasis in original).
Mrs. Leleux opposed the motion for summary judgment, arguing
there are genuine issues of material fact that preclude
summary judgment. See Record Document 28.
Summary Judgment Standard.
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is appropriate when there is no genuine dispute as
to any material fact, and the moving party is entitled to
judgment as a matter of law. A fact is material if proof of
its existence or nonexistence might affect the outcome of the
lawsuit under the applicable governing law. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Sossamon v. Lone Star State of Tex., 560 F.3d 316,
326 (5th Cir. 2009); Hamilton v. Segue Software,
Inc., 232 F.3d 473, 477 (5th Cir. 2000). A genuine issue
of material fact exists if a reasonable jury could render a
verdict for the nonmoving party. See Brumfield v.
Hollins, 551 F.3d 322, 326 (5th Cir. 2008) (citing
Anderson, 477 U.S. at 252); Hamilton, 232
F.3d at 477.
party seeking summary judgment has the initial responsibility
of informing the court of the basis for its motion and
identifying those parts of the record that demonstrate the
absence of genuine issues of material fact. See Washburn
v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
If the moving party carries its initial burden, the burden
shifts to the nonmoving party to demonstrate the existence of
a genuine issue of a material fact. See Washburn,
504 F.3d at 508. All facts and inferences are construed in
the light most favorable to the nonmoving party. See
Brumfield, 551 F.3d at 326 (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
dispositive issue is one on which the nonmoving party will
bear the burden of proof at trial, the moving party may
satisfy its burden by pointing out that there is insufficient
proof concerning an essential element of the nonmoving
party's claim. See Norwegian Bulk Transp. A/S v.
Int'l Marine Terminals P'ship, 520 F.3d 409, 412
(5th Cir. 2008) (citing Celotex Corp., 477 U.S. at
325). The motion should be granted if the nonmoving party
cannot produce evidence to support an essential element of
its claim. See Condrey v. SunTrust Bank of Ga., 431
F.3d 191, 197 (5th Cir. 2005).
both parties have submitted evidence of contradictory facts,
a court is bound to draw all reasonable inferences in favor
of the nonmoving party. See Boudreaux v. Swift Transp.
Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). The court
cannot make credibility determinations or weigh the evidence,
and the nonmovant cannot meet his burden with unsubstantiated
assertions, conclusory allegations, or a scintilla of
evidence. Id. “When all of the summary
judgment evidence presented by both parties could not lead a
rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial and summary judgment is
proper.” Greene v. Syngenta Crop Prot., Inc.,
207 F.Supp.2d 537, 542 (M.D. La. 2002) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
the Court notes that this case will be tried to the bench.
The Fifth Circuit has “determined that a district court
has somewhat greater discretion to consider what weight it
will accord the evidence in a bench trial than in a jury
trial.” Matter of Placid Oil Co., 932 F.2d
394, 397 (5th Cir. 1991). “[W]here ‘the
evidentiary facts are not disputed, a court in a nonjury case
may grant summary judgment if trial would not enhance its
ability to draw inferences and conclusions.'”
Id. at 398 (quoting Nunez v. Superior Oil
Co., 572 F.2d 1119, 1124 (5th Cir. 1978)). To that end,
the Fifth Circuit has upheld “the grant of a summary
judgment motion requiring the district court to make a
factual determination ‘in light of all the
circumstances surrounding a given transaction.'”
Id. (quoting Hous. N. Hosp. Props. v. Telco
Leasing, Inc., 680 F.2d 19, 22 (5th Cir. 1982)).
“Although, as always, a district court must be aware
that assessments of credibility come into sharper focus once
live witnesses are heard, ” the Fifth Circuit has found
“that even at the summary judgment stage a judge in a
bench trial has the limited discretion to decide that the
same evidence, presented to him or her as trier of fact in a
plenary trial, could not possibly lead to a different
result.” Id. (citing Nunez, 572 F.2d
at 1123-24). “If a trial on the merits will not enhance
the court's ability to draw inferences and conclusions,
” then the court should “draw  inferences
without resort to the expense of trial.” Id.
(quoting Nunez, 572 F.2d at 1124). With these
standards in mind, the Court turns now to the merits of the
instant motion for summary judgment.
42, United States Code, Section 1983 provides a cause of
action against anyone who “under color of any statute,
ordinance, regulation, custom, or usage, of any State”
violates another person's constitutional rights. Section
1983 is not itself a source of substantive rights but merely
provides a method for vindicating federal rights conferred
elsewhere. See Graham v. Connor, 490 U.S. 386,
393-94 (1989); Baker v. McCollan, 443 U.S. 137, 144
n.3 (1979); Hernandez ex rel. Hernandez v. Tex. Dep't
of Protective & Regulatory Servs., 380 F.3d 872,
879-80 (5th Cir. 2004). To state a Section 1983 claim, a
plaintiff must: (1) allege a violation of a right secured by
the Constitution or laws of the United States, and (2)
demonstrate that the alleged deprivation was committed by a
person acting under color of state law. See Whitley v.
Hanna, 726 F.3d 631, 638 (5th Cir. 2013). With regard to
the second criterion, “a private party's joint
participation with state officials in the seizure of disputed
property based on that party's ex parte
application is sufficient to characterize the party as a
‘state actor' for purposes of the Fourteenth
Amendment.” Doyle v. Landry, 67 Fed.Appx. 241,
2003 WL 21108477, *4 (5th Cir. 2003) (citing Lugar v.
Edmondson Oil Co., Inc., 457 U.S. 922, 941-42
Supreme Court has “described ‘the root
requirement' of the Due Process Clause as being
‘that an individual be given an opportunity for a
hearing before he is deprived of any significant
property interest.'” Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 542 (1985) (citation omitted)
(emphasis in original). Due process, however, “does not
require that a property owner receive actual notice before
the government may take his property.” Jones v.
Flowers, 547 U.S. 220, 226 (2006) (citing Dusenbery
v. United States, 534 U.S. 161, 170 (2002)). A state
actor need only provide “‘notice reasonably
calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford
them an opportunity to present their objections.'”
Id. (quoting Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 314 (1950)). The analysis
of a claim of the denial of procedural due process requires
that (1) the court determine whether state action has
deprived the plaintiff of life, liberty, or property, and, if
such a deprivation is found, (2) the court must then
determine whether state procedures for challenging the
deprivation satisfy due process. See Augustine v.
Doe, 740 F.2d 322, 327 (5th Cir. 1984). “[D]ue
process is flexible and calls for such procedural protections
as the particular situation demands.” Mathews v.
Eldridge, 424 U.S. 319, 334 (1976) (quotations and
citation omitted). Due process “is not a technical
conception with a fixed content unrelated to time, place and
circumstances.” Id. (quotations and citation
to Federal Rule of Civil Procedure 69(a)(1), a “money
judgment is enforced by a writ of execution, unless the court
directs otherwise. The procedure on execution-and in
proceedings supplementary to and in aid of judgment or
execution-must accord with the procedure of the state where
the court is located, but a federal statute governs to the
extent it applies.” According to Louisiana Code of
Civil Procedure Article 2411, a judgment creditor, “by
petition and after the issuance of a writ of fieri facias,
may cause a third person to be cited as a garnishee to
declare under oath what property he has in his possession or
under his control belonging to the judgment debtor. . .
.” The article further provides that the “seizure
shall take effect upon service of the petition, citation,
interrogatories, and a notice of seizure, as required by
Article 2412(A)(1).” La. Code Civ. Proc. art. 2411(B).
Louisiana Code of Civil Procedure Article 2412(A)(1) provides
that the “sheriff shall serve upon the garnishee the
citation and a copy of the petition and of the
interrogatories, together with a notice that a seizure is
thereby effected against any property of or indebtedness to
the judgment debtor.” Section (A)(2) of Article 2412
states that the judgment creditor shall “send to the
judgment debtor written notice of the filing of the
garnishment petition by mail or electronic means” but
that the “notice provided to the judgment debtor shall
have no effect on the validity of the seizure.”
Deprivation Of Property.
Section 1983 claim that asserts a violation of due process,
the court must first determine whether the state action has
deprived the individual of a protected interest. See
Augustine v. Doe, 740 F.2d 322, 327 (5th Cir. 1984). Mr.
Hassan's first argument as to why Mrs. Leleux's
claims should be dismissed is that Mrs. Leleux did not suffer
a deprivation of property. He contends that “[s]ince no
wage garnishment actually took place, ” there was no
deprivation and thus no actionable claim. Record Document 24
at 5. Mrs. Leleux counters with Louisiana Code of Civil
Procedure Article 2411(B)(1) which addresses garnishment and