Opinion
CIVIL ACTION NUMBER: 01-2958, SECTION: "I"(5)
September 26, 2003
ORDER AND REASONS
Presently before the Court is the Rule 12(b)(6) Motion to Dismiss or, alternatively, Rule 56 Motion for Summary Judgment of defendants, the City of New Orleans, Bureau of Finance, Department of the Treasury, and Walter O'Brien, individually and in his capacity of Financial Operating Officer, and plaintiff's opposition thereto. (Rec. docs. 29, 37, 39). For the reasons that follow, it is ordered that defendants' motion is granted in part and denied in part.
Defendants having filed their motion after filing answers to plaintiff's complaint, their request for relief under Rule 12(b)(6) is more properly construed as a motion for judgment on the pleadings under Rule 12(c). See Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999).
The above-captioned litigation grows out of a longstanding dispute between plaintiff, a resident of California, and defendants regarding the assessment and collection of taxes imposed on various pieces of property situated in the City that are or were previously owned by plaintiff. Invoking the Court's jurisdiction under 28 U.S.C. § 1331 and 1332, plaintiff filed suit on September 26, 2001 asserting nine separate causes of action. In her first and third causes of action, plaintiff alleges that defendants failed to notify her of 1994 property taxes due for 1118-1122% Orange Street and later fraudulently conveyed the interest in said property by way of a tax sale. Plaintiff advances similar claims in her second and fourth causes of action with respect to property situated at 1223-1225 Sere Street. In her fifth and sixth causes of action, respectively, plaintiff alleges that the defendants failed to abide by a judgment rendered in her favor in a state court lawsuit brought by her against some other party and that the defendants, charge usurious rates on the interest imposed on unpaid property taxes. Plaintiff's seventh and eighth causes of action relate to defendants alleged failure to respond to "taxes paid under protest" for properties located at 2627 Delachaise Street and 1228 N. Robertson Street, respectively. Finally, in her ninth cause of action, plaintiff alleges that the actions of the defendants amount to "other civil rights violations, based on her gender and chosen place of residence." (Rec. doc. 1).
Defendants now move for the dismissal of and/or summary judgment with respect to all nine of plaintiff's asserted causes of action. As to plaintiff's first, second, third, fourth, seventh, and eighth causes of action, defendants essentially assert that notice of all owed property taxes and subsequent tax sales was properly mailed to plaintiff at the addresses she had provided them and were properly advertised in the local newspaper. Defendants further assert that plaintiff paid no taxes under protest for the Orange and Sere Street properties, thereby foreclosing any claim for a refund, and that the taxes that were paid under protest for the Delachaise and N. Robertson Street properties were untimely and/or that suit to obtain a refund of same was not instituted timely. As for plaintiff's fifth, sixth, and ninth causes of action, defendants respectively argue that they are not bound by the judgment obtained by her in state court, that they do not charge/are not prohibited from charging usurious interest rates, and that plaintiff has established no unconstitutional policy, practice, or custom on the City's part, no deliberate indifference, to plaintiff's rights, and has not pled facts sufficient to overcome the qualified immunity that O'Brien enjoys. (Rec. doc. 37). Notwithstanding defendants' assertions, dismissal of only two of plaintiff's causes of action is appropriate at this time.
In her fifth cause of action, plaintiff states that she filed suit in state court in 1999 against one Todd Higgins for fraud, fraudulent conveyances of property, and misappropriation of funds with respect to five separate pieces of property, including the four at issue herein. Plaintiff prevailed in that suit and obtained a judgment on October 11, 2000, subsequently amended on January 19, 2001, restoring ownership of the properties to her and holding Higgins responsible for, inter alia, all back taxes and liens. (Rec. doc. 29, ex. J). Plaintiff maintains that the defendants should have honored that judgment and sought all back tax related assessments directly from Higgins.
Plaintiff's fifth cause of action is easily disposed of. Although a judgment or decree among the parties to a lawsuit resolves the issues among them, it does not adjudicate the rights of strangers to those proceedings. Thomas v. Janzen, 800 So.2d 81, 89 (La.App. 2d Cir. 2001) (citing Richards v. Jefferson County, 517 U.S. 793, 116 S.Ct. 1761 (1996)); Clark v. Clark, 82 So. 875, 878, 145 La. 740, 750-51 (La. 1919); Mason v. Layton, 38 La. Ann. 675, 1886 WL 4387 at *1 (La. 1886); Merchants' Mutual Ins. Co. v. New Orleans Mutual Ins. Co., 24 La. Ann. 305, 1872 WL 7107 at *3 (La. 1872). The present defendants not being parties to plaintiff's suit against Higgins, are not bound by the judgment rendered: in that case. Plaintiff's fifth cause of action fails as a matter of law.
In her ninth cause of action for "other civil rights violations", plaintiff alleges that she ". . . has daily encountered hatred and prejudice whenever she is in New Orleans, especially at City Hall", for which she ". . . can find no other reason for her shoddy treatment by the CITY except for her gender and her chosen place of residency." (Rec. doc. 1, pp. 8-9).
Although plaintiff does not identify the statutory basis for her civil rights-based cause of action, the Court assumes that it arises under 42 U.S.C. § 1983. In order to state a valid claim against a municipality under 42 U.S.C. § 1983, a plaintiff must identify ". . . (1) a policy (2) of the city's policymaker (3) that caused (4) the plaintiff to be subjected to the deprivation of a constitutional right." Palmer v. City of San Antonio. Texas. 810 F.2d 514, 516 (5th Cir. 1987) (quoting Grandstaff v. City of Borger, Texas, 767 F.2d 161, 169 (5th Cir. 1985), cert. denied. 480 U.S. 917, 107 S.Ct. 1369 (1987)). As pointed out by the City in its moving papers, plaintiff identifies no official policy, custom, or practice of the City which resulted in the violation of her constitutional rights, an assertion which is not disputed by plaintiff. As such, there is no valid basis upon which to hold the City liable here under § 1983. See Monnell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018 (1978).
O'Brien also seeks to be shielded from plaintiff's § 1983 claims for civil liability on the basis of qualified immunity. The, Fifth Circuit employs a two-step analysis to determine whether a governmental employee is entitled to qualified immunity. First, the Court must determine whether plaintiff has alleged a violation of a clearly established constitutional right. If so, the Court must then determine whether the defendant's conduct was objectively reasonable in light of clearly established law at the time of the incident in question.Morris v. Dillard Dept. Stores. Inc., 277 F.3d 743, 753 (5th Cir. 2001) (quoting Chiu v. Piano Indep. Sch. Dist., 260 F.3d 330, 343 (5th Cir. 2001).
Although plaintiff complains, in wholly general terms, that she has been subjected to poor treatment by unknown individuals at City Hall, nowhere does she identify what clearly established constitutional right they allegedly violated. In fact, the ninth cause of action set forth in plaintiff's complaint contains no hint of personal action or involvement on O'Brien's part. Plaintiff has also come forward with no competent summary judgment evidence establishing that similarly situated male residents were treated more favorably then herself. Accordingly, defendants' motion is granted with respect to plaintiff's § 1983 claims against O'Brien.
With the dismissal of plaintiff's fifth and ninth causes of action, seven remain before the Court. In response to plaintiff's sixth cause of action, defendants assert that the laws prohibiting the imposition of usurious interest rates do not apply to governmental entities, an assertion that plaintiff disputes, but they cite no legal authority in support of that proposition that would allow the Court to enter judgment in their favor on that, issue. Plaintiff's six other causes of action all relate to whether she was properly given notice of property taxes due, thus allowing her to timely make payment under protest and to preserve her rights to make a judicial challenge, and of the subsequent tax sales. The defendants' proof on those issues includes copies of the City's Real Estate Assessment Roll and Ledgers but no particularly probative evidence as to when and whether those notices were in fact mailed to plaintiff or whether they should have been mailed to her in the normal course of business. Notices pertaining to the Sere Street property were wrongly addressed to Mr./Mrs. John Piera, thus raising a question as to the notices' sufficiency. As respects the N. Robertson Street property, the Court is unclear as to precisely what taxes are being challenged. While the defendants focus on notice for 1993 taxes that was sent to Mr./Mrs. Duff, the owners of the property up to some unspecified date in December of 1992, sometime after December 17, 1992, the allegations in plaintiff's complaint relate to defendants' alleged failure to respond to taxes for unidentified years that were paid under protest on May 2, 2001. In light of these factual and legal questions, summary judgment on plaintiff's first, second, third, fourth, sixth, seventh, and eighth causes of action is inappropriate at this time. A conference will be scheduled to select a new trial date.