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North Atlantic Security Co. v. Blache

United States District Court, M.D. Louisiana

October 1, 2019

NORTH ATLANTIC SECURITY COMPANY
v.
FABIAN BLACHE, ET AL.

          RULING AND ORDER ON PLAINTIFF'S MOTION FOR LEAVE OF COURT TO FILE FIRST AMENDED COMPLAINT

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

         Before the Court is a Motion for Leave of Court to File First Amended Complaint (the “Motion for Leave”)[1] filed by plaintiff, North Atlantic Security Company (“Plaintiff”). The Motion for Leave is opposed by defendant, Ritchie Rivers (“Rivers”), [2] and Plaintiff has filed a Reply.[3] For the reasons set forth herein, the Motion for Leave is denied in part and granted in part.[4] Specifically, Plaintiff is denied leave to add the State of Louisiana (“Louisiana”) as a defendant because such amendment would be futile. To the extent Plaintiff still wishes to assert an additional state law claim against defendant Fabian Blache (“Blache”), Plaintiff is granted leave to file, within seven (7) days of this Ruling and Order, a revised amended complaint asserting that claim.

         I. Background

         On or about March 29, 2019, Plaintiff filed a “Petition for Damages under 42 USC 1983” (the “Petition”) naming as defendant Rivers and Blache in their individual capacities. Per the Petition, Plaintiff alleges that Blache, the executive director of the Louisiana Board of Private Security Examiners (the “Board”), and Rivers, a member of the Board, improperly fined Plaintiff and revoked Plaintiff's license to operate as a private security company in Louisiana in violation of the 8th and 14th Amendments.[5] Plaintiff alleges that as a result of Rivers' and Blache's actions, Plaintiff “had been destroyed as a viable company in Louisiana” by August 2018 and “lost millions of dollars.”[6] Plaintiff alleges its damages include “loss of income, past, present and future;” “[v]iolation of Constitutional rights of due process before deprivation of property under the Fourteenth Amendment to the Constitution;” “[e]xcessive fines, in violation of the Excessive fines clause of the Eighth Amendment…;” and “[o]ther damages to be proved at trial.”[7] Plaintiff further alleges that its damages exceed $2, 000, 000.00 and that it is entitled to recover punitive damages and attorney fees.[8] On June 11, 2019, Rivers filed a Notice of Removal asserting this Court has federal subject matter jurisdiction pursuant to both 28 U.S.C. § 1331[9] and § 1332.[10]

         On August 20, 2019, Plaintiff filed the instant Motion for Leave.[11] By its Motion for Leave, Plaintiff seeks to amend the Complaint to add a claim based on Blache's alleged violation of the Louisiana Constitution[12] and to add Louisiana as a defendant.[13] Plaintiff asserts that Louisiana is Blache's employer and is therefore “responsible for all state law delicts caused by Fabian Blache in the course and scope of his employment as Executive Director of the Louisiana Board of Private Security Examiners.”[14] In opposition to the Motion for Leave, Rivers argues that “[b]ecause of the State's sovereign immunity under the Eleventh Amendment, the amendment would only serve to deprive this Court of jurisdiction and force the case to be remanded to state court.”[15] Rivers further asserts that allowing the proposed amendment would be futile because Louisiana is not a “person” for purposes of § 1983 and because there is no vicarious liability for an employer under § 1983.[16] In Reply, Plaintiff does not contest these two points of law, and instead asserts that it “only seeks vicarious liability for state law delicts, not federal delicts, from the State of Louisiana.”[17]

         II. Law and Analysis

         A. Standard for Leave to Amend

         Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend pleadings “shall be freely given when justice so requires.”[18] The Federal Rules permit liberal amendment of pleadings, and Rule 15(a) favors granting leave to amend. However, “leave to amend is by no means automatic” and the “decision lies within the sound discretion of the district court.”[19] A court should consider five factors to determine whether to grant a party leave to amend a complaint: (1) undue delay; (2) bad faith or dilatory motive; (3) repeated failure to cure deficiencies by previous amendments; (4) undue prejudice to the opposing party; and (5) futility of the amendment.[20] Absent any of these factors, the leave sought should be freely given.[21]

         Regarding the fifth factor, an amendment is “futile” if it would fail to survive a Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted.[22] The Fifth Circuit has noted that “[w]hen futility is advanced as the reason for denying an amendment to a complaint, the court is usually denying leave because the theory presented in the amendment lacks legal foundation or because the theory has been adequately presented in a prior version of the complaint.”[23] A proposed amendment may also be considered futile where the court would lack subject matter jurisdiction over the amended claim.[24]

         B. Plaintiff's Proposed Amendment Adding Louisiana as a Defendant is Futile

          “The Eleventh Amendment bars citizens' suits in federal court against States and their alter egos.”[25] “[T]he Supreme Court has ‘consistently held that an uncontesting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.'”[26] “In general, therefore, a suit in which the state or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment. This jurisdictional bar applies regardless of the nature of the relief sought”[27] and “bars the adjudication of pendent state law claims against non-consenting state defendants in federal court.”[28]

         “When a state or its arm is a named defendant, the Eleventh Amendment bars suits for money damages or injunctive relief unless the state has waived its immunity or Congress has abrogated the immunity by unequivocally expressing its intent to do so.”[29] Although a state's immunity may be abrogated by Congress or waived by the state, “Congress has not abrogated a state's immunity in cases where a plaintiff brings Section 1981, Section 1983, or Section 1985 claims…, ”[30] and “[b]y statute, Louisiana has rejected waiver of its sovereign immunity.”[31] Here, Plaintiff seeks to add Louisiana as a defendant in order to assert Louisiana's vicarious liability for Blache's alleged state law violations.[32] Such claims (even if limited to the proposed state law claim), would be barred by the Eleventh Amendment.[33] Accordingly, allowing Plaintiff to amend its complaint to add claims against the State of Louisiana would be futile.[34]

         C. Leave to Amend to Assert a New Claim Against Blanche and Rivers is Granted

          As explained above, the Court denies Plaintiff's Motion for Leave to add Louisiana as a defendant based on futility; specifically, Plaintiff's inability to proceed against Louisiana in federal court. However, Plaintiff's proposed Complaint also seeks to add a claim that “Defendant Blanche also violated Plaintiff's Due Process Rights under Article I, Section 2 of the Louisiana Declaration of Rights in that Blanche revoked NAS's license to operate in Louisiana and notified its customers of this ex parte revocation without a hearing, in violation of the Louisiana Constitution.”[35] No. objection has been raised to Plaintiff amending to add this claim. To the extent Plaintiff still seeks to amend to assert an additional state law claim against Blache, the Court grants Plaintiff's Motion for Leave in part. Plaintiff is granted leave to file, within seven (7) days of this Ruling and Order, a revised amended complaint asserting Plaintiff's additional state law claim against defendant Blache.

         III. Conclusion

         For the reasons set forth herein, IT IS HEREBY ORDERED that Plaintiff's Motion for Leave of Court to File First Amended Complaint (“Motion for Leave”)[36] is DENIED IN PART AND GRANTED IN PART.

         IT IS HEREBY ORDERED that Plaintiff's Motion for Leave is DENIED IN PART AS FUTILE to the extent Plaintiff seeks to amend to ...


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