Ducote v. Judiciary Commission of Louisiana

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

RICHARD DUCOTE ET AL CIVIL ACTION

VERSUS NO: 19-13624

JUDICIARY COMMISSION SECTION “H”

OF LOUISIANA

ORDER AND REASONS

Before the Court is Defendant The Judiciary Commission of Louisiana’s

Motion to Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) (Doc. 9) and Motion

for Leave to File Amended and Supplemental Complaint (Doc. 19). For the

following reasons, the Motion to Dismiss is GRANTED and the Motion for

Leave is DENIED.

BACKGROUND

Plaintiffs, Richard Ducote and Austin Leiser, bring this action pursuant

to 42 U.S.C. § 1983 and the First and Fourteenth Amendments. The Complaint

alleges that on October 21, 2019, Leiser filed a judicial conduct complaint with

Defendant, The Judiciary Commission of Louisiana (“the Commission”). The

Complaint also alleges that Ducote filed a judicial conduct complaint with the

Commission on November 4, 2019. In response to their complaints, each

Plaintiff received a letter from the Commission. The letters explained that,

under Louisiana Supreme Court Rule XXIII, Section 23, Plaintiffs were

prohibited from disclosing the fact of filing of the complaints and any action

taken by the Commission on the complaints.

Plaintiffs aver that Louisiana Supreme Court Rule XXIII, Section 23

(“the Rule”) prevents complainants, respondents, and witnesses from

disclosing or discussing the fact that a complaint was filed or any information

related to the Commission’s proceedings in violation of the First and

Fourteenth Amendments. Plaintiffs seek declaratory and injunctive relief.

In the instant Motion, Defendant seeks dismissal of Plaintiffs’ Complaint

under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject

matter jurisdiction and failure to state a claim, respectively. Defendant argues

that this Court lacks subject matter jurisdiction over the action because the

Commission is immune under the Eleventh Amendment, the Plaintiffs lack

standing, and their claims are not ripe. Defendant also argues that dismissal

for failure to state a claim is appropriate because the Commission lacks the

capacity to be sued and the claims for injunctive relief are contrary to the plain

text of § 1983. Because this Court finds that it lacks subject matter jurisdiction

over the claims at issue, it need not address the arguments for dismissal under

Rule 12(b)(6).

LEGAL STANDARD

I. Motion to Dismiss

A Rule 12(b)(1) motion challenges the subject matter jurisdiction of a

federal district court. “A case is properly dismissed for lack of subject matter

jurisdiction when the court lacks the statutory or constitutional power to

adjudicate the case.”1 In ruling on a Rule 12(b)(1) motion to dismiss, the court

may rely on (1) the complaint alone, presuming the allegations to be true, (2)

the complaint supplemented by undisputed facts, or (3) the complaint

supplemented by undisputed facts and by the court’s resolution of disputed

1 Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998).

facts.2 The proponents of federal court jurisdiction—in this case, the

Plaintiffs—bear the burden of establishing subject matter jurisdiction.3

II. Motion for Leave to Amend

Federal Rule of Civil Procedure 15(a) governs the amendment of

pleadings before trial. Rule 15(a) allows a party to amend its pleadings “only

with the other party’s written consent or the court’s leave.”4 Moreover, Rule

15(a) urges that the Court “should freely give leave when justice so requires.”5

In taking this liberal approach, Rule 15(a) “reject[s] the approach that pleading

is a game of skill in which one misstep by counsel may be decisive to the

outcome and accept the principle that the purpose of pleading is to facilitate a

proper decision on the merits.”6

“Rule 15(a) requires a trial court ‘to grant leave to amend freely,’ and the

language of this rule ‘evinces a bias in favor of granting leave to amend.’”7

When denying a motion to amend, the court must have a “substantial reason”

considering such factors as “‘undue delay, bad faith or dilatory motive on the

part of the movant, repeated failures to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party . . . and futility of

the amendment.’”8 An amendment is deemed to be futile if it would be

dismissed under a Rule 12(b)(6) motion.9

2 Den Norske Stats Oljesels kap As v. Heere MacVof, 241 F.3d 420, 424 (5th Cir. 2001).

3 See Physicians Hosps. of Am. v. Sebelius, 691 F.3d 649, 652 (5th Cir. 2012).

4 FED. R. CIV. P. 15(a)(2).

5 Id.

6 Conley v. Gibson, 355 U.S. 41, 48 (1957).

7 Jones v. Robinson Prop. Grp., 427 F.3d 987, 994 (5th Cir. 2005) (internal quotations marks

omitted) (quoting Lyn-Lea Travel Corp. v. Am. Airlines, 283 F.3d 282, 286 (5th Cir. 2002)).

8 Marucci Sports, LLC v. Nat’l Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014)

(quoting Jones, 427 F.3d at 994)

9 Id. (citing Briggs v. Miss., 331 F.3d 499, 508 (5th Cir. 2003)).

LAW AND ANALYSIS

Defendant first argues that this Court lacks subject matter jurisdiction

because it is immune from suit under the Eleventh Amendment. In most cases,

the Eleventh Amendment confers sovereign immunity upon states and

prohibits private suits against states in federal court.10 Eleventh Amendment

sovereign immunity may be waived by the state or expressly abrogated by

Congress.11 Here, the State has not waived its sovereign immunity as it relates

to this suit,12 and Congress has not expressly abrogated the states’ sovereign

immunity as it relates to § 1983 actions.13

Plaintiffs do not argue that the Judiciary Commission of Louisiana is not

an arm of the state qualifying for Eleventh Amendment immunity; rather,

Plaintiffs argue that Eleventh Amendment immunity is inapplicable here

because it only applies to monetary claims and not claims for declaratory or

injunctive relief. This is inaccurate. “[T]he Eleventh Amendment by its terms

clearly applies to a suit seeking an injunction, a remedy available only from

equity. To adopt the suggested rule, limiting the strictures of the Eleventh

Amendment to a suit for a money judgment, would ignore the explicit language

and contradict the very words of the Amendment itself.”14

10 City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019) (citing Va. Office for Prot. &

Advocacy v. Stewart, 563 U.S. 247, 253 (2011)).

11 Raj v. La. State Univ., 714 F.3d 322, 328 (5th Cir. 2013).

12 See Cozzo v. Tangipahoa Par. Council-President Gov’t, 279 F.3d 273, 281 (5th Cir. 2002)

(“By statute, Louisiana has refused any such waiver of its Eleventh Amendment sovereign

immunity regarding suits in federal courts.” (citing LA. REV. STAT. § 13:5106(A))).

13 Quern v. Jordan, 440 U.S. 332, 345 (1979) (“[Section] 1983 does not explicitly and by clear

language indicate on its face an intent to sweep away the immunity of the States; nor does

it have a history which focuses directly on the question of state liability and which shows

that Congress considered and firmly decided to abrogate the Eleventh Amendment

immunity of the States.”).

14 Cory v. White, 457 U.S. 85, 91 (1982).

There is an exception to this grant of immunity, however: the Ex parte

Young exception. The Young exception allows private parties to bring suits for

injunctive or declaratory relief against individual state officials acting in

violation of federal law.15 There are three basic elements of an Ex parte Young

lawsuit. “The suit must: (1) be brought against state officers who are acting in

their official capacities; (2) seek prospective relief to redress ongoing conduct;

and (3) allege a violation of federal, not state, law.”16

Here, Plaintiffs’ Complaint fails to satisfy the first requirement on its

face because it does not name any individual state officials as defendants in

their official capacities. Accordingly, the Judiciary Commission of Louisiana is

entitled to Eleventh Amendment immunity. Plaintiffs have, however, filed a

Motion for Leave to File an Amended and Supplemental Complaint, seeking

leave to add individual defendants—three members of the Commission—in

their official capacities.17 This would indeed satisfy the first requirement.

Defendant argues, however, that even if Plaintiffs are given leave to amend

their Complaint in order to name individual defendants in their official

capacities, the Complaint would still fail under Ex parte Young because the

Commission and its members lack enforcement authority relative to violations

of the Rule. This argument addresses the second requirement for Ex parte

Young relief—the redressability of ongoing conduct through prospective relief.

For the Ex parte Young exception to apply, “the state official, by virtue

of his office, must have some connection with the enforcement of the challenged

act, or else the suit is merely making him a party as a representative of the

15 Paxton, 943 F.3d at 997 (citing Raj, 714 F.3d at 328).

16 Williams v. Reeves, 954 F.3d 729, 746 (5th Cir. 2020) (citing NiGen Biotech, L.L.C. v.

Paxton, 804 F.3d 389, 394 (5th Cir. 2015)).

17 Doc. 19.

state, and thereby attempting to make the state a party.”18 “The text of the

challenged law need not actually state the official’s duty to enforce it, although

such a statement may make that duty clearer.”19

Here, Plaintiffs aver that the Commission’s enforcement authority over

the Rule is derived from Louisiana Supreme Court Rule XXIII, Section 20,

which provides:

If any person shall fail to obey any notice, citation, subpoena, or

process issued by the Commission or this Court, or if any other

occasion shall arise for proceeding against any person for being in

contempt of the authority of the Court or of the Commission, the

Commission shall certify the fact to this Court, and thereupon the

Court shall proceed to determine whether the party whose conduct

is complained of is in contempt of the authority of the Court or the

Commission and, if so, to punish the offending party for contempt

of court.

Plaintiffs argue that this provision empowers the Commission to place

offending parties in contempt of court for violating the Commission’s Rule.

Defendant argues that the “Commission’s potential role with respect to

contempt proceedings is limited to ‘certify[ing] the fact’ that an occasion has

arisen for contempt proceedings to the Louisiana Supreme Court for the Court

to determine whether the facts actually constitute contempt.”20 Defendant

further argues that the Commission’s certification role falls short of the type

of enforcement power required to proceed under Ex parte Young. This Court

agrees with Defendant.

18 Paxton, 943 F.3d at 997 (citing Ex parte Young, 209 U.S. 123, 157 (1908) (internal brackets

and quotations omitted)).

19 Paxton, 943 F.3d at 997–98 (citing Ex parte Young, 209 U.S. at 157). Fifth Circuit

jurisprudence is unclear as to what constitutes a sufficient connection to enforcement. Id.

at 999 (noting that panels in the Fifth Circuit are split as to whether the official must have

“the particular duty to enforce the statute in question and a demonstrated willingness to

exercise that duty” or, rather, whether the state officer only must have some connection

with the enforcement of the statute).

20 Doc. 9-2 at 5 (brackets in original).

First, Louisiana Supreme Court Rule XXIII, Section 20, empowers only

“the [Louisiana Supreme] Court . . . to determine whether the party . . . is in

contempt . . . and, if so, to punish the offending party for contempt of court.”

The Commission’s connection to enforcement is limited to certifying facts to

the Louisiana Supreme Court, which then has the authority to act upon those

certified facts.

Second, the cases cited by Plaintiffs do not support the finding that the

Commission or its members possess enforcement authority. For example, in

Fund for Louisiana’s Future v. Louisiana Board of Ethics, the court found that

the Louisiana Board of Ethics had the requisite connection to enforcement

where it was tasked by statute to “function as the supervisory committee to

administer and enforce the provisions of this Chapter.”21 Here, the Louisiana

Supreme Court is tasked with enforcement by statute; not the Commission or

its members.

Plaintiffs also point to Boudreaux v. Louisiana State Bar Association for

the proposition that the Eleventh Amendment did not shield the Louisiana

State Bar Association (“LSBA”) or the Louisiana Supreme Court from federal

jurisdiction in a suit for declaratory and injunctive relief.22 The Boudreaux

court, however, found that

[t]he Justices of the Louisiana Supreme Court . . . take an “active

role” in enforcing the LSBA membership requirement. The LSBA

certifies to the Supreme Court those members who are in bad

standing and ineligible to practice law for failing to timely register.

The Louisiana Supreme Court is responsible for initiating

disciplinary proceedings and sanctioning members who fail to

comply with the registration requirement and may disbar such

members. Relatedly, the Louisiana Supreme Court’s authority to

21 No. CIV.A. 14-0368, 2014 WL 1514234, at *6 (E.D. La. Apr. 16, 2014) (emphasis added).

22 No. 19-11962, 2020 WL 137276 (E.D. La. Jan. 13, 2020).

sanction members who fail to register establishes that the Justices

have the particular duty to enforce the registration requirement.23

Contrary to Plaintiffs’ assertions, the Boudreaux court did not hold that the

LSBA had a sufficient connection to enforcement. Rather, its holding was

limited to the Justices of the Louisiana Supreme Court. It held that, “because

the Justices enforce the laws that Boudreaux challenges as unconstitutional,

they are subject to suit for injunctive relief pursuant to the [Ex parte] Young

exception.”24 Indeed, the LSBA’s role parallels the Commission’s role as

“certifier” to the Louisiana Supreme Court. Notably, the Boudreaux court did

not make a finding of enforcement authority as to the LSBA.

Plaintiffs fail to cite to any case law in which a defendant sued in his

official capacity was found to have the requisite enforcement authority under

Ex parte Young for simply certifying or noticing facts to a separate, superior

body with actual enforcement authority. Accordingly, even if Plaintiffs amend

their Complaint to name individual defendants in their official capacities as

members of the Commission, the Ex parte Young exception would nevertheless

be inapplicable, and amendment would be futile.

Having found that the Commission and its members are immune from

suit under the Eleventh Amendment, the Court need not address Defendant’s

arguments as to standing, ripeness, and capacity.

CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss (Doc. 9) is

GRANTED, and Plaintiffs’ Motion for Leave to Amend (Doc. 19) is DENIED.

Accordingly, Plaintiffs’ Complaint is DISMISSED.

23 Id. at *20 (internal citations omitted).

24 Id. at *21.

New Orleans, Louisiana this 11th day of June, 2020.

gy TRICHE MILAZZO

UNITED STATES DISTRICT JUDGE