No. Civ.A. 04-1651
United States District Court, E.D. Louisiana
December 09, 2004
Glen Ray Galbraith, Seale & Ross, PLC, Hammond, LA, for Plaintiffs.
Daniel Lund, Jason Ross Anders, Montgomery, Barnett, Brown, Read, Hammond & Mintz Energy Centre, New Orleans, LA, for Defendants.
ORDER AND REASONS
*1 Before the Court is the motion of defendant, NovelAire Technologies, L.L.C., to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, defendant's motion to dismiss is GRANTED IN PART and DENIED IN PART.
On June 9, 2004, defendant, NovelAire Technologies, L.L.C. (“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, Waechter, Poitevent, Carrere & Denegre, L.L.P. (“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 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.
NovelAire filed this motion to dismiss based on the fact that plaintiffs do not allege that NovelAire employees were ever on Essential's premises or that such employees were ever in contact with either the state court or any representative from the sheriff's office. NovelAire contends that plaintiffs' § 1983 claims fail because plaintiffs have not established that NovelAire deprived them of any federal right and that plaintiffs have presented nothing more than mere conclusory allegations that any of the defendants were involved in a conspiracy with a public official to commit an illegal act.
With respect to plaintiffs' state law causes of action, NovelAire asserts that plaintiffs fail to state a valid cause of action for trespass, invasion of privacy, and abuse of rights.
The other defendants, Jones Walker, Justin Ourso, and Antonio Robinson, have not filed a motion to dismiss.
*2 In evaluating a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court will not look beyond the factual allegations in the pleadings to determine whether relief should be granted. See
Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir.1999); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.1996). In assessing the complaint, a court must accept all well-pleaded facts in the complaint as true and liberally construe all factual allegations in the light most favorable to the plaintiff. Spivey, 197 F.3d at 774; Lowry v. Texas A & M University System, 117 F.3d 242, 247 (5th Cir.1997). A complaint may not be dismissed pursuant to Rule 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, 102, 2 L.Ed.2d 80 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir.1995).
A. Plaintiffs' § 1983 Claim
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.”
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, 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).
*3 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
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.
B. Plaintiffs' State Law Claims
NovelAire does not dispute that its counsel's employees entered onto plaintiffs' property. Liability for an agent's trespass may be extended to principals. Crowley v. New Orleans Brewing Co., 180 So. 232, 234 (La.App.Orleans 1938). The relationship between an attorney and a client is one of principal and agent. Sondes v. Sears, Roebuck and Co., 501 So.2d 829, 831-32 (La.App. 4th Cir.1986).
Plaintiffs contend that the entry onto land by NovelAire's agents was an unlawful trespass. Plaintiffs have satisfied the minimal requirements for pleading a trespass claim by alleging that NovelAire's agents had unlawfully, physically invaded upon plaintiffs' property. See
Boudreaux v. Jefferson Island Storage & Hub, L.L.C., 255 F.3d 271, 274 (5th Cir.2001). At this stage in the proceedings, the Court cannot say that it appears beyond doubt that the plaintiffs can prove no set of facts in support of their trespass claim against NovelAire which would entitle them to relief.
*4 Similarly, plaintiffs allege that NovelAire's agents intruded upon plaintiffs' solitude and private affairs. An invasion of privacy “occurs when the defendant unreasonably intrudes upon the plaintiff's physical solitude or seclusion.” Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386, 1388 (La.1979). Taking plaintiffs' allegations as true, plaintiffs have alleged sufficient facts to state a cause of action for invasion of privacy.
Plaintiffs also contend, in the alternative, that NovelAire's ex parte
discovery order constituted an abuse of rights because it violated “moral rules, good faith, or elementary fairness.”
The abuse of rights doctrine applies only when one of the following four conditions are met: (1) the predominant motive for exercise of the right is to cause harm; (2) there is no serious or legitimate motive for exercise of the right; (3) the exercise of the right violates moral rules, good faith, or elementary fairness; or (4) the exercise of the right is for a purpose other than that for which it was granted. Pennington,
830 So.2d at 1043; see
Sharp v. Noble Drilling Corp., 685 So.2d 608, 611 (La.App. 3d Cir.1996). Louisiana courts are loath to invoke the abuse of rights doctrine because its “application renders unenforceable one's otherwise judicially protected rights.” Lee v. Pennington, 830 So.2d 1037, 1043 (La.App. 4th Cir.2002); see
Massachusetts Mut. Life Ins. Co. v. Nails, 549 So.2d 826, 828 (La.1989).
Plaintiffs allege that NovelAire's ex parte
acquisition of the discovery device was done in bad faith and violated elementary fairness because Harrison was represented by counsel. Although the Court has serious questions with respect to the plaintiffs' ability to prevail on such a claim, at this early stage in the proceedings, plaintiffs have alleged sufficient facts to support a claim for abuse of rights and the complaint withstands dismissal with respect to their abuse of rights claim.
For the above and foregoing reasons,
IT IS ORDERED that the motion of defendant, NovelAire, to dismiss for failure to state a claim is hereby GRANTED with respect to plaintiffs' § 1983 claim against NovelAire.
IT IS FURTHER ORDERED that the motion to dismiss is DENIED with respect to plaintiffs' state law claims against NovelAire.
Rec. Doc. No. 1, exhibit A.
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.
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.
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.
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.
End of Document.