Opinion
Civil Action No. 04-1651 Section: I/2.
February 24, 2005
ORDER AND REASONS
Before the Court is the motion of defendants, Jones, Walker, Waechter, Poitevent, Carrere Denegre, L.L.P. ("Jones Walker"), A. Justin Ourso, III, and Antonio D. Robinson, to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and/or for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Also before the Court is the motion of defendant, NovelAire Technologies, L.L.C. ("NovelAire"), for summary judgment with respect to plaintiffs' state law claims. For the following reasons, defendants' motion for summary judgment with respect to plaintiffs' § 1983 claims is GRANTED and all state law claims are DISMISSED WITHOUT PREJUDICE against all defendants.
Because the Court considers the extrinsic materials produced by defendants, Jones Walker, Ourso, and Robinson, in support of their motion, the Court will treat the motion as one for summary judgment pursuant to Rule 56. See Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 287 (5th Cir. 2004). Furthermore, in view of this Order and Reasons, the Court does not address NovelAire's motion for summary judgment.
Background
On December 9, 2004, the Court dismissed the § 1983 claims of plaintiffs, Martin Harrison and Barbara Bucklin, against NovelAire for failure to state a claim. The facts which give rise to the motions presently before the Court are the same as those set forth with respect to NovelAire's previous motion. As the Court stated:
On June 9, 2004, defendant, NovelAire , filed a petition in the 19th Judicial District Court for the Parish of East Baton Rouge, Louisiana, against the plaintiffs in the above-captioned case, Martin Harrison ("Harrison") and Barbara Bucklin ("Bucklin"). NovelAire's petition alleged claims against Harrison, a former employee of NovelAire, for breach of agreement and breach of fiduciary duties, and claims against Bucklin for intentional interference with a contract. NovelAire also asserted claims against both Harrison and Bucklin and their newly formed limited liability company, Essential Humidity Solutions, L.L.C. ("Essential"), for violations of the Louisiana Unfair Trade Practices Act. On the same day that NovelAire filed its state court petition, NovelAire applied ex parte for the issuance of a pre-trial discovery order, entitled "Order for Expedited Discovery to Preserve Evidence." NovelAire's request was based, in part, on an e-mail written by Bucklin that allegedly evidenced Harrison's and Bucklin's intent to destroy discoverable evidence pertinent to NovelAire's state court case. After reviewing the request, the acting duty judge ordered the sheriff to serve the discovery order on the state court defendants, plaintiffs in this matter, and remain on the premises until the order had been carried out.
The discovery order authorized NovelAire and an independent computer expert designated by NovelAire, through the sheriff, to preserve evidence by imaging computers located at 12249 Home Port Drive, Maurepas, Louisiana. The Maurepas address was both the business entity's registered domicile and Harrison's and Bucklin's residence. On June 10, 2004, Deputy Richard Thomassie of the Livingston Parish Sheriff's office, NovelAire's counsel, the law firm of [Jones Walker] through its employees, Angelique Bergerson and Antonio Roberson, and the independent computer expert hired by NovelAire, arrived at plaintiffs' domicile and executed the discovery order.
Plaintiffs filed the present action alleging that the state court's expedited discovery order and its execution were invalid, that NovelAire, Jones Walker, and two employees of Jones Walker, Ourso and Robinson, violated plaintiffs' Fourth and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983, and that the defendants are liable for trespass, invasion of privacy, and abuse of rights.See Rec. Doc. No. 19.
See Rec. Doc. No. 1, exhibit A.
Rec. Doc. No. 6.
Rec. Doc. No. 6.
Rec. Doc. No. 6.
Rec. Doc. No. 1.
Rec. Doc. No. 1. In addition, the order specifically stated that the independent computer expert who examined the computer would not turn over any information to NovelAire until Harrison and Bucklin had the opportunity to object to the discoverability of the information.
Essential's registered domicile is also a personal residence owned by Bucklin.
Rec. Doc. No. 1. Plaintiffs did not name Angelique Bergerson, the Jones Walker paralegal, as a defendant. The other named defendant, Ourso, signed the pleadings in the Baton Rouge lawsuit which gave rise to the allegedly unlawful search and seizure.
Rec. Doc. No. 1.
Analysis
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Once the moving party carries its burden of proving that there is no material factual dispute, the burden shifts to the nonmovant "to show that summary judgment should not lie." Hopper v. Frank, 16 F.3d 92, 96 (5th Cir. 1994). While the court must consider the evidence with all reasonable inferences in the light most favorable to the nonmovant, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986); Webb v. Cardiothoracic Surgery Associates of North Texas, 139 F.3d 532, 536 (5th Cir. 1998). This requires the nonmoving party to do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec., 475 U.S. at 586, 106 S. Ct. at 1356. The nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986); Auguster v. Vermillion Parish School Board, 249 F.3d 400, 402 (5th Cir. 2001). This burden is not satisfied by creating merely some metaphysical doubt as to the material facts, by conclusory allegations, unsubstantiated assertions or by only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
Moreover, this Court must enter summary judgment for a party when the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). "In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 322-23, 106 S. Ct. at 2552; Munoz v. Orr, 200 F.3d 291, 307 (5th Cir. 2000) ("A complete failure of proof as to one element requires summary judgment against the entirety of the claim").
A. Plaintiffs' § 1983 Claims
As stated in this Court's previous Order and Reasons:
The two elements required for conduct to be actionable pursuant to 42 U.S.C. § 1983 are: (1) a deprivation of a right secured by the Constitution or federal law and (2) conduct occurring under color of state law. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155, 98 S. Ct. 1729, 1733, 56 L. Ed. 2d 185 (1978). Plaintiffs allege that they were deprived of "a right secured by the United States Constitution, namely the right to be secure in their persons, houses, papers and effects from unreasonable searches and seizures guaranteed by the Fourth and Fourteenth Amendments." Assuming, arguendo, that defendants' actions constituted an unreasonable search and/or seizure under the Fourth Amendment, plaintiffs must also allege that defendants acted under "color of law," i.e., that the deprivation of a federal right was fairly attributable to the State.
In order to state a claim pursuant to § 1983 against a private citizen, such as NovelAire [as well as Jones Walker, Ourso, and Robinson], a plaintiff must establish that the conduct which allegedly caused the deprivation of the federal right was "fairly attributable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 829, 937, 102 S. Ct. 2744, 2753, 73 L.Ed. 2d 482 (1982). The fair attribution test requires that a plaintiff show: "(1) that the deprivation was caused by the exercise of some right or privilege created by the state or by a rule of conduct imposed by the state, or by a person for whom the state is responsible, and (2) that the party charged with the deprivation may fairly be said to be a state actor." Priester, 354 F.3d at 423.
"State action" requires some manner of state responsibility for the actions which underlie the § 1983 claim. Auster Oil Gas, Inc. v. Stream, 764 F.2d 381, 387 (5th Cir. 1985). A private person does not act under color of state law simply because he invokes state authority. Brummett v. Camble, 946 F.2d 1178, 1184 (5th Cir. 1991); see Sims v. Jefferson Downs Racing Ass'n., Inc., 778 F.2d 1068, 1078 (5th Cir. 1985) ("the execution by a private party of a sworn complaint, which forms the basis for an arrest is, without more, not sufficient to make that party's acts state action"); Lugar, 457 U.S. at 937, 102 S. Ct. at 2754 (explaining that without limits to "state action," private parties could face litigation whenever they seek to rely on some state rule governing their interaction with the surrounding community).
For a private citizen to be held liable pursuant to § 1983, "the plaintiff must allege that the citizen conspired with or acted in concert with state actors." See Priester v. Lowndes County, 354 F.3d 414, 420 (5th Cir. 2004); see also Lugar, 457 U.S. at 937, 102 S. Ct. at 2754; Mylett v. Jeane, 879 F.2d 1272, 1275 (5th Cir. 1989). Fifth Circuit law requires the private citizen to be a "willful participant in joint activity with the State or its agents." Priester, 354 F.3d at 420. Conclusory allegations of conspiracy, without reference to specific facts, will not suffice. Id.; Brinkman v. Johnston, 793 F.2d 111, 112-13 (5th Cir. 1986).
Plaintiffs' complaint alleges that "defendant Ourso [a Jones Walker attorney] conspired with Robinson and/or Bergeron [a Jones Walker attorney and paralegal, respectively] to effect the search and seizure." Plaintiffs further allege that "[o]ne or more Jones Walker employees, in the course of their employment, reached an understanding with Deputy Thomassie to cause the search and seizure." According to the complaint, "Jones Walker was acting in accordance with instructions from its client, NovelAire," and "Jones Walker, Ourso and Robinson caused the search and seizure at the direction of their client, NovelAire."
Plaintiffs do not allege that — the defendants conspired with the judge who issued the discovery order. Plaintiffs also do not set forth any specific factual allegations with respect to a conspiracy or an understanding between Deputy Thomassie and Jones Walker or any other defendant.
A civil conspiracy pursuant to § 1983 is an agreement between private and public actors to violate a plaintiff's constitutional rights. See Bayou Fleet, Inc. v. Alexander, 68 F. Supp. 2d 734, 745 (E.D. La. 1999). Plaintiffs' complaint alleges that an understanding was reached between the Deputy Thomassie and Jones Walker employees; however, the complaint does not identify any facts or evidence which would support such a finding.
Harrison and Bucklin have made merely conclusory allegations of a conspiracy between Deputy Thomassie and Jones Walker employees. In the absence of allegations of specific facts which would support such a theory, plaintiffs have failed to state a valid § 1983 claim against NovelAire.See Rec. Doc. No. 19.
42 U.S.C. § 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity.
Rec. Doc. No. 1, ¶ 82.
A "search" occurs "when an expectation of privacy that society is prepared to consider reasonable is infringed." Soldal v. Cook County, Ill., 506 U.S. 56, 62, 113 S. Ct. 538, 121 L.Ed. 2d 450 (1992). A "seizure" of property occurs where "there is some meaningful interference with an individual's possessory interests in that property." United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). For the purpose of this motion, the Court does not make any determination as to the reasonableness of the search or seizure.
The terms "state action" and "color of state law" are "treated as co-extensive for purposed of determining jurisdiction under § 1983." Auster Oil Gas, Inc. v. Stream, 764 F.2d 381, 387 n. 4 (5th Cir. 1985).
Rec. Doc. No. 1, ¶ 86. Paragraph 86 is the only specific articulation of conspiracy in plaintiffs' complaint.
Rec. Doc. No. 1, ¶ 87.
Rec. Doc. No. 1, ¶ 13.
Rec. Doc. No. 1, ¶ 89.
Plaintiffs concede in their complaint that "the deputy was acting in the course and scope of his employment as a Deputy Sheriff for the Livingston Parish Sheriff's Office." Rec. Doc. No. 1, ¶ 24. Furthermore, the complaint, which alleges that the discovery order is invalid, indicates that the order executed by the deputy was signed and issued ex parte by a state court judge. Rec. Doc. No. 1, ¶¶ 32, 33, and exhibit A. The complaint also recognizes that the order "purported to authorize `the Sheriff' (presumably of Livingston Parish) to take certain actions at plaintiffs' home, including the segregation of Ms. Bucklin and Mr. Harrison from each other, the coerced interrogation of each, and ordering Ms. Bucklin and Mr. Harrison to then `stand clear' and permit `experts' hired by NovelAire to take `whatever actions are necessary' to copy all computerized data on the premises." See id. ¶ 30.
With respect to plaintiffs' § 1983 claims against Jones Walker, Ourso, and Robinson, plaintiffs allege that Ourso and Robinson were willful participants with Deputy Thomassie in the unlawful search and seizure of their residence. Plaintiffs also allege that certain Jones Walker employees reached and understanding with Deputy Thomassie. The deposition testimony of Deputy Thomassie and Martin Harrison reveals that Robinson and Bergeron were with Deputy Thomassie on the morning the discovery order was executed. Plaintiffs' claims against Jones Walker appear to be based solely on a theory of respondeat superior, i.e., an employer's vicarious liability for its employees.
Rec. Doc. No. 1, ¶ 88. Plaintiffs concede that the defendants did not engage in state action by using the state court legal process. Rec. Doc. No. 22, p. 14.
Rec. Doc. No. 1, ¶ 87.
Rec. Doc. No. 21, exhibit 2, deposition of Deputy Thomassie, pp. 11-14. Rec. Doc. No. 21, exhibit 3, deposition of Martin Harrison, pp. 75-77.
Rec. Doc. No. 1, ¶ 87. Plaintiffs allege that the Jones Walker employees were acting in the course and scope of their employment when they reached this understanding with the deputy. Id.
A private party may be held liable pursuant to § 1983 if he is a willful participant in joint activity with a state actor. See Adickes v. S.H. Kress Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994). In order to support a conspiracy claim, plaintiffs must allege facts which suggest 1) an agreement between the private defendants and a state actor "to commit an illegal act," and 2) an actual deprivation of constitutional rights. Cinel, 15 F.3d at 1343 (internal citations omitted). While plaintiffs' complaint alleges an understanding which resulted in an allegedly unlawful search and seizure, plaintiffs' § 1983 claim is factually unsupported.
As the Supreme Court stated in Dennis v. Sparks:
[T]o act `under color of' state law for § 1983 purposes does not require that the defendant be an officer of the State. It is enough that he is a willful participant in joint action with the State or its agents. Private persons, jointly engaged with state officials in the challenged action, are acting see `under color' of law for purposes of § 1983 actions. Adickes v. S.H. Kress Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 1605, 26 L. Ed. 2d 142 (1970); United States v. Price, 383 U.S. 787, 794, 86 S. Ct. 1152, 1156, 16 L. Ed. 2d 267 (1966). Of course, merely resorting to the courts and being on the winning side of a lawsuit does not make a party a co-conspirator or a joint actor with the judge.Dennis v. Sparks, 449 U.S. 24, 27-29, 101 S. Ct. 183, 186-87, 101 L. Ed. 2d 185 (1980).
On the evidence construed in the light most favorable to plaintiffs, the record reveals no evidence of a conspiracy between Deputy Thomassie and the private individual defendants. Plaintiffs have taken the deposition of Deputy Thomassie, the only state actor alleged to have been involved in the violation of plaintiffs' constitutional rights, but they have failed to produce any evidence of a conspiracy or willful participation in joint activity which would give rise to § 1983 liability for these private defendants.
With respect to Ourso, no common understanding could have possibly been reached between him and the deputy. Plaintiffs concede that Ourso was not present when Deputy Thomassie executed the discovery order and that Ourso never spoke with the deputy about the discovery order. Accordingly, plaintiffs have failed to produce any evidence which would support a § 1983 claim against Ourso for his individual actions.
Rec. Doc. No. 22, ¶ 6, plaintiffs' opposition to defendants' statement of uncontested material facts. Plaintiffs admit defendants' statement of uncontested facts which states that "Thomassie testified that he has never met or spoken to Ourso." See Rec. Doc. No. 21, defendants' statement of uncontested material facts.
However, plaintiffs contend that Ourso is vicariously liable as "Robinson's employer." Likewise, plaintiffs also submit that Jones Walker is vicariously liable for the actions of its employees. Assuming, arguendo, that Ourso and Jones Walker could be held liable based on a theory of respondeat superior or vicarious liability, the record does not support a § 1983 claim against Robinson (or Bergeron), thereby eliminating any basis for respondeat superior liability with respect to Ourso and Jones Walker as employers.
Plaintiffs assert that Ourso is Robinson's employer. However, the complaint alleges that Ourso is an employee of Jones Walker, and plaintiffs provide no legal authority for liability of a supervisory employee.
Plaintiffs did not bring any claims against Bergeron, but her actions could serve as the basis for her employer's liability if they rose to the level of a § 1983 violation.
Plaintiffs cite Daniel v. Ferguson, 839 F.2d 1124, 1131 n. 15 (5th Cir. 1988) and Gomez v. Florida State Employment Serv., 417 F.2d 569, 578 n. 34 (5th Cir. 1969), for the proposition that in § 1983 actions persons may be held liable for the acts of others under usual principles of agency. The Court notes, however, that courts have been unwilling to find an employer liable based solely on a theory of respondeat superior in § 1983 actions. See Henley v. Edleman, 297 F.3d 427, 430 n. 6 (5th Cir. 2002); McCue v. Kansas, 165 F.3d 784, 788 (10th Cir. 1999) (stating "[e]mployer liability in section 1983 actions is restricted away from agency principles because section 1983 permits a lawsuit against a `person' in his individual capacity"); Gernetzke v. Kenosha Unified Sch. Dist. No. 1, 274 F.3d 464, 468 (7th Cir. 2001) ("Respondeat superior is of course the judge-made doctrine, applicable to most tort cases but not to section 1983 cases, that makes an employer liable even if faultless for the torts its employees commit in the course of their employment." (emphasis added)); Padover v. Gimbel Bros. Inc., 412 F. Supp. 920, 922 (E.D. Pa. 1976); Thompson v. McCoy, 425 F. Supp. 407, 411 (D.S.C. 1976). See also Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91, 98 S. Ct. 2018, 2035-36, 56 L. Ed 2d 611 (1978) (rejecting respondeat superior as theory of governmental liability in § 1983).
Deputy Thomassie's deposition reveals that he spoke with Bergeron by telephone the day before the incident at Essential's registered domicile and Bucklin's house and that he met with Bergeron and Robinson just before executing the discovery order. Plaintiffs suggest that Deputy Thomassie, Robinson and Bergeron "discussed how the search of the home was to be accomplished." However, Thomassie testified that neither Bergeron nor Robinson had any input into his execution of the order. Furthermore, plaintiffs have not offered any evidence to rebut the defendants' claim that Deputy Thomassie's actions were wholly independent rather than joint. Plaintiffs have introduced no evidence to support their assertion of a conspiracy. Plaintiffs rely solely upon the fact that Deputy Thomassie spoke with Bergeron and Robinson prior to executing the discovery order, but the Court concludes that it cannot be inferred from Deputy Thomassie's testimony that his meeting and/or conversation with Robinson and Bergeron constituted willful participation in or created a conspiracy to unlawfully search and seize plaintiffs' home and business. Without any evidence of willful participation or some concerted effort or plan between these individual defendants and the deputy, there is no genuine issue of material fact with respect to the state action element of plaintiffs' § 1983 claims against Robinson, Ourso, or Jones Walker to be tried.
Rec. Doc. No. 21, exhibit 2, deposition of Deputy Thomassie, pp. 11-14.
Rec. Doc. No. 22, p. 3. The testimony establishes that Deputy Thomassie's conversations with Bergeron and Robinson amounted to perfunctory safety precautions and information gathering with respect to executing the discovery order. See id., pp. 11-14, 48.
Id. at p. 50-51. Thomassie testified as follows:
Q. When you met Bergeron and Robinson and Steen at the boat launch that next morning or when you spoke to Bergeron the next morning on the telephone, did you have any questions of them as to what you were supposed to do?
A. As far as the order itself and what we were there for, no.
Q. Did you need their agreement as to anything in order to go ahead and execute the order?
A. No. They didn't have any input as to what I was going to do.Id.
B. Plaintiffs' State Law Claims
After dismissing all claims over which a court has original jurisdiction, a district court may decline to exercise supplemental jurisdiction. See 28 U.S.C. § 1367(c); Priester, 354 F.3d at 425 (stating "[i]n cases where all of the federal claims are dismissed before trial, the general rule is that a district court may decline to exercise supplemental jurisdiction"). This Court has dismissed the § 1983 claims against defendants which are the only claims over which this Court had original jurisdiction.
The Court previously denied NovelAire's motion to dismiss plaintiffs' state law claims. The Court determined that at that early stage in the proceedings, the Court could not say that it appeared beyond doubt that the plaintiffs could prove no set of facts in support of their state law claims which would entitle them to relief. NovelAire, now joined by Jones Walker, Ourso, and Robinson, moves for summary judgment with respect to plaintiffs' trespass, invasion of privacy, and abuse of right claims.
As the Supreme Court stated in United Mine Workers v. Gibbs:
[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of the applicable law . . . Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). This Court has not addressed the merits of plaintiffs' state law claims and there has been no commitment of judicial resources to the state law claims that would weigh in favor of exercising supplemental jurisdiction. Furthermore, any discovery that has been done can be used in state court. Accordingly, the Court finds that the rule which counsels against the exercise of supplemental jurisdiction applies in this situation.
For the above and foregoing reasons,
IT IS ORDERED that plaintiffs' § 1983 claims against Jones Walker, Robinson, and Ourso are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that plaintiffs' state law claims against all defendants are DISMISSED WITHOUT PREJUDICE.