Opinion
Civil Action 00-2206, Section "T"(4)
December 17, 2001
Before this Court is a Motion to Dismiss filed on behalf of defendants, Garden District Association and Michelle O. Landrieu, as to both the plaintiff Louis R. Koerner Jr.'s Complaint as well as the Intervention of William H. Ridlon III. The Court, having considered the memoranda filed, the evidence submitted, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
In 1979, the plaintiff, Louis R. Koerner, Jr., purchased property located at 1204 Jackson Avenue in the New Orleans neighborhood known as the Garden District. The property is and has been zoned for residential, non-commercial use. Since the purchase of the property, Koerner has operated a law office from said location, which is allowed within strict limits under the applicable zoning ordinance. Since 1979, Mr. Koerner has had numerous problems with the zoning authorities culminating in the present lawsuit. In 1979, Koerner was cited for zoning violations for using in excess of fifteen percent (15%) of the property for the operation of a law practice. In 1991, Koerner was again found to be in violation of the zoning ordinance for having non-resident workers employed at 1204 Jackson Avenue, at which time a cease and desist order was issued by Paul May, then Zoning Administrator for the City of New Orleans.
In 1997, Koerner applied for a permit to operate a "bed and breakfast" at 1204 Jackson Avenue which was deified by Paul May. This ruling was appealed to the City of New Orleans Board of Zoning Adjustment Which affirmed the decision of Paul May. Koerner then filed suit in Civil District Court where the Board of Zoning Adjustment's ruling was affirmed. The Fourth Circuit Court of Appeals likewise affirmed the ruling and the Louisiana Supreme Court deified writs.
Neighbors continued to complain of Koerner's non-conforming use of the property. The Garden District Association ("GDA") voiced some of these complaints to the City. The City then filed a Motion for Contempt seeking to hold Koerner in contempt for his continued violation of the zoning ordinance. This motion was dismissed in March 2000 on procedural grounds. Additionally, based upon the complaints of neighbors, the City investigated the use of the property. During the investigation, it was found that Koerner did not have an occupational license and a citation was issued.
William H. Ridlon, II filed an Intervention in this action based upon the City's denial of his application for an occupational license. This Intervention alleges that the City, May, the GDA, and Landrieu violated his fights by denying his application. More specifically, Count One assert a denial of equal protection in that other persons similarly situated do not have their application for an occupational license disapproved, and/or in the alternative, that the permitted uses of 1204 Jackson Avenue, including use as a law office, had previously been established in prior judicial proceedings and a-final judgment to which the City was a party, and/or in the alternative, that Ridlon is at risk of having criminal proceedings filed against him. Intervention paragraphs 22-24. The Intervention seeks attorney's fees, injunctive relief, as well as, the issuance of a writ of mandamus upon the City and May. Unlike Koerner's complaint, with the exception of Louisiana Constitutional claims, Ridlon does not raise any state law claims.
Koerner alleges that the Garden District Association and/or Landrieu "encouraged" the violations of his civil rights which were allegedly done by the City, May and/or Jefferson. Specifically, it is alleged that the City's issuance of a citation for his failure to obtain an occupational license was "encouraged" by the GDA and/or Landrieu. Also, Koerner alleges that the City's action in filing a contempt motion in Civil District Court was "encouraged" by the GDA and/or Landrieu. Finally, Koerner alleges that Betty's Jefferson's revocation of his homestead exemption for 1204 Jackson Avenue was "encouraged" by the GDA and/or Landrieu. Additionally, Koerner sets forth state law allegations against Landrieu and/or the GDA for defamation, slander, libel, malicious prosecution, and various other tort claims. These allegations are based upon statements made by the GDA in a GDA newsletter and statements allegedly made by Landrieu in a meeting with Robert B. Fisher, Jr. There are also allegations of the violation of the Louisiana Constitution and Louisiana Unfair Trade Practices Act. Likewise, the Intervention asserts claims for violations of equal protection rights, procedural due process, and Louisiana Constitutional violations based upon Ridlon's successful defense of Koerner against the City and GDA which has resulted in his being targeted by the City as part of its efforts directed against Koerner and based upon the GDA and/or Landrieu encouraging and exerting political pressure on the City, May and Jefferson.
Defendants, Garden District Association and Michelle O. Landrieu, have filed a Motion to Dismiss both the Complaint ofplaintiff, Louis R. Koerner, Jr., as well as, the Intervention of William H. Ridlon, II. It is the GDA and Landrieu's position that the plaintiff and intervenor have failed to state a valid claim under federal law in that the GDA and Landrieu are not state actors and have taken no actions in this matter "under color of state law". Furthermore, defendants contend that no liability can be established from the lobbying and/or petitioning of public officials by the GDA and/or Landrieu, as such contacts are protected activities under the First Amendment of the United States Constitution. As such, all claims of violations of either the United States Constitution or 42 U.S.C. § 1983 should be dismissed. It is further asserted that the Court should likewise dismiss all claims asserted by Koerner and Ridlon under state law. As all of the federal claims are meritless, the Court should decline to exercise supplemental jurisdiction over any state law claims.
The plaintiff however contends that there is evidence of interdependence in this case between Landrieu, the GDA, and the Garden District Security District ("GDSD") with the City. Plaintiff submits as evidence an inter-office memorandum dated September 14, 1999, authored by Paul May, Director of Department of Safety and Permits sent to Evelyn Pugh, Deputy City Attorney, attaching a copy of an inspection report and requesting that appropriate action be instituted to ensure compliance with the zoning ordinances, to support his claim of a "symbiotic relationship" among the defendants. Koerner argues that this evidences that Landrieu, an employee of a subdivision of the state, namely Executive Director of the GDSD, conspired with Paul May, an employee of the City, to maliciously prosecute Koerner by the filing of the contempt motion. Koerner submits that whether or not these two persons alleged to be acting under color of law misused or abused their official power to cause harm to Koerner is not a question of allegation but instead of proof; thus, the motion to dismiss is without merit.
Moreover; plaintiff contends that the exceptions to the Noerr-Pennington doctrine do apply to the case at hand. First, the "sham exception" applies in that Koerner has alleged that the GDA, GDSD, and Landrieu conspired with the City to file the contempt motion not because they were serious about the object of that petition but instead to force Koerner to waste time and money defending himself that would have been spent in actively prosecuting the Kruger action. Additionally, the "co-conspirator" exception is met in that plaintiff alleges that May and the City have been motivated by malice and a desire to retaliate against Koerner for his success in the Kruger action. As such, plaintiff contends that the motion to dismiss should be denied.
This Court notes that there was no opposition filed on behalf of the Intervenor, Ridlon, to defendants' motion.
II. LAW AND ANALYSIS:
A motion to dismiss under FRCP 12(b)(6) "is viewed with disfavor and is rarely granted." Lowery v. Texas AM University System, 117 F.3d 242, 247 (5th Cir. 1997); Kaiser Aluminum Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the original complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1980). A district court may not dismiss a complaint under FRCP 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Blackburn v. Marshall, 42 F.3d 925, 931 (5th Cir. 1995). The Fifth Circuit defines this strict standard as, "The question therefore is whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief" Lowrey, 117 F.3d at 247, citing 5 Charles A. Wright Arthur R. Miller, Federal Practice and Procedure, § 1357, at 601 (1969).
None of the actions alleged to be in violation of Koerner or Ridlon's civil rights, namely the citation for failure to obtain an occupational license, the filing of the motion for contempt against Koerner, the revocation of Koerner's homestead exemption, etc. were direct actions of Landrieu or the GDA. Instead, GDA and Landrieu are alleged to have encouraged and exerted political pressure against public officials in taking said action. Moreover, while plaintiff asserts arguments concerning the GDSD, GDSD is not a party to this action at this time as leave to amend the complaint has not been granted. As such, this Court will look to the allegations as set forth in the original Complaint filed by the plaintiff
In a § 1983 action, the plaintiff must establish that the conduct in question deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States and that the conduct complained of was committed by a person acting under color of state law. See Bayou Fleet v. Alexander, 68 F. Supp.2d 734 (E.D.La. 1999). This Court agrees with the defendants, GDA and Landrieu, that they are private actors. The GDA is a private association whose purpose is the protection of the Garden District from over-commercialization. It has no authority from the state, nor does it possess power to enforce any laws or zoning ordinances. Instead, the GDA, like any other private citizen, may levy complaints to the appropriate City departments and officers, report violations, and seek enforcement of laws and ordinances. The same can be said for Landrieu, individually and as the Executive Director of the GDA. As such, these defendants do not occupy positions that can be considered actors "under color of state"
A private person however may be considered a state actor under color of state law in three instances. First, the "public function test" finds that a private entity acts under color of state law if the private entity performs a function which is traditionally the exclusive province of the state. See Bass v. Parkwood Hospital, 180 F.3d 234 (5th Cir. 1999). Next, the "state compulsion test" provides that when the state exercises coercive power over a private entity or provides such significant encouragement that the choice must in law be deemed to be that of the state, then the private entity acts under color of state law. Id. Finally, under the "nexus or joint action test," an entity and the state must be so "interdependent" that they are seen as joint actors for the private party to be considered as acting under the color of state law.Id.
The Complaint sets forth no facts for imposing the "under color of state law" label to the actions of GDA or Landrieu in this case. The Complaint contains no allegation that the GDA is performing a function which is traditionally the exclusive province of the state, nor does the Complaint allege that the state exercises coercive power over the GDA or provide such significant encouragement that the choice must in law be deemed to be that of the state. In this case, quite the opposite is alleged, it is the GDA which allegedly encouraged and exerted pressure on the City and City officials to violate the petitioner's constitutional rights. Finally, there are insufficient facts alleged to meet the joint action test whereby a private entity (GDA and/or Landrieu) and the state are so "interdependent" that they are seen as joint actors. Simply, the complaint, while extensively laying out the past history between the parties, does not set forth sufficient claims for conspiracy or joint action between the GDA/Landrieu and any state entity to warrant a finding that the GDA/Landrieu acted under color of state law.
A civil conspiracy under § 1983 is an agreement between private and public actors to violate the plaintiffs constitutional rights. Bayou Fleet, supra. The acts of the alleged conspirators must show a "unity of purpose, common design, and understanding, or meeting of the minds in an unlawful arrangement." Id. "A private party does not act under color of state law when [he] merely elicits but does not join in an exercise of official authority." Bayou Fleet, supra quoting Auster Oil Gas, Inc. v. Stream, 764 F.2d 381, 388 (9 Cir. 1985), cert. denied, 488 U.S. 848, 109 S.Ct. 129, 102 L.Ed.2d 102 (1988). It is not sufficient that the defendants merely acted in concert or with a common goal, but there must be allegations that the defendants had directed themselves towards an unconstitutional action by virtue of a mutual understanding supported by some factual allegations suggesting-a meeting of the minds. Id. While plaintiff has in a conclusory manner alleged that the defendants directed themselves towards unconstitutional actions, the Complaint is devoid of factual allegations suggesting a meeting of the minds. Mere encouragement of a public official to act and/or attendance at judicial proceedings are not facts which demonstrate or substantiate a cause of action for civil conspiracy. Moreover, there is no allegation that GDA/Landrieu did anymore than elicit action on the part of public officials. As stated, inBayou Fleet, this does not constitute acting under color of law. Accordingly, it is the finding of this Court that none of the allegations by Koerner or Ridlon support a cause of action pursuant to 42 U.S.C. § 1983 and therefore said claims must be dismissed.
Moreover, the United States Supreme Court has established the Noerr-Pennington doctrine which provides that parties who petition the government for governmental action favorable to them cannot be prosecuted under federal antitrust law, regardless of motivation. See Eastern Railroad. President Conference v. Noerr Motor Freight, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). While this doctrine was originally applied in the antitrust context, it has been applied to protect First Amendment petitioning of the government from claims brought under federal and state laws, including 42 U.S.C. § 1983. See Video International Production. Inc. v. Warner-Amex Cable Communications, Inc., 858 F.2d 1075 (9 Cir. 1988) and Bayou Fleet. Inc. v. Alexander, 68 F. Supp.2d 734 (E.D.La. 1999). The fact that the GDA and/or Landrieu encouraged the City, May and/or Jefferson to take action to enforce the existing laws is specifically' protected action under the First Amendment and the type of situation the Noerr-Pennington doctrine was designed to guard against.
Furthermore, this Court finds that none of the exceptions to this doctrine are applicable to the facts and circumstances of the present action. This Court finds there to be no applicability in this case of the "sham exception". The "sham exception" is said to apply when one party has begun litigation not to win that litigation, but rather to force its competitor to waste time and money in defending itself Video International, supra. The complaints lodged by GDAILandrieu regarding zoning violations go to the heart of the organization's purpose — the protection of the Garden District from commercialization. As such, GDA/Landrieu is serious about the object of the petition and not merely engaged in the petitioning activity merely to inconvenience the other party. The "coconspirator" exception is applied in cases where a government official or body has been influenced by the petitioner through some corrupt means. Video International, supra. The official with whom the petitioner conspires must, at a minimum, have had some selfish or otherwise corrupt motive in siding with the petitioner to result in an illegal conspiracy sufficient to activate the co-conspirator exception.Video International, supra. The "co-conspirator exception" likewise does not apply as Koerner has failed to state a claim for conspiracy. While this Court must accept facts pled as true, this Court does not have to accept conclusory allegations such as the allegations made, for example that the actions taken by May, Jefferson, and the City of New Orleans were in retaliation for prior litigation. As such, it is the finding of this Court that defendants, GDA and Michelle Landrieu, are private actors whose conduct in this case is protected under the Noerr-Pennington doctrine.
This Court finds no basis for supporting a cause of action against the GDA and Landrieu on the federal causes of action, as such, this Court will decline to exercise its supplemental jurisdiction over the remaining state law claims.
Accordingly,
IT IS ORDERED that the Motion to Dismiss filed on behalf of defendants, Garden District Association and Michelle O. Landrieu, be and the same is hereby GRANTED.
IT IS FURTHER ORDERED that the claims of the plaintiff Louis R. Koerner, Jr., and the intervenor, William H. Ridlon, II, against Garden District Association and Michelle O. Landrieu, be and the same are hereby DISMISSED WITH PREJUDICE.