Blanchard v. Tillman

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SADIE MICHELE BLANCHARD CIVIL ACTION

AND COMMITTEE TO ELECT

S. MICHELE BLANCHARD, LLC

VERSUS NO. 20-2400

JEFFREY SCOTT TILLMAN

AND U.S. TERM LIMITS SECTION “B”(5)

ORDER AND REASONS

Before the Court are defendants Jeffrey Tillman and U.S. Term

Limits’ special motion to strike under Louisiana Code of Civil

Procedure Article 971 or in the alternative motion to dismiss under

Rule 12(b)(6) (Rec. Doc. 11), plaintiffs Sadie Michele Blanchard

and Committee to Elect S. Michele Blanchard, LLC’s response in

opposition (Rec. Doc. 12), and defendant’s reply (Rec. Doc. 17).

For the reasons discussed below,

IT IS ORDERED that the special motion to strike (Rec. Doc.

11) is GRANTED, DISMISSING WITH PREJUDICE plaintiffs’ claims

against all defendants;

IT IS FURTHER ORDERED that the Court shall retain jurisdiction

to decide defendants’ motion for attorney’s fees provided that the

motion and supporting materials are filed within fourteen (14)

days of this order and in accordance with Local Rules of the EDLA.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This suit arises out of the October 2019 election. Rec. Doc.

13 at 2. In October 2019, plaintiff Sadie Michele Blanchard was a

candidate for the Louisiana House of Representatives District 76

race. Rec. Doc. 1-1 at 2. During her candidacy, Defendant Jeffrey

Tillman was an employee of U.S. Term Limits as its Deputy Filed

Director. Rec. Doc. 9-1 at 2. During the election, Tillman

allegedly solicited information through a private email account

from Blanchard, seeking information regarding her thoughts on

congressional term limits. Id. Plaintiffs’ complaint indicates

that Tillman emailed Blanchard three times. Rec. Doc. 1-1 at 4-6.

Blanchard states that she responded to Tillman’s email on August

20, 2019. Id. Blanchard responded that she had “no objection to

term limits for Congress or any other elected office, except the

adverse effect of empowering bureaucrats who have no

responsibility to answer to the people and who fail to understand

the practical impact and implications that the regulations they

administrate have on people.” Id. at 4. Tillman emailed Blanchard

twice thereafter sharing information on congressional term limits.

Id. at 5-6. Blanchard responded to his second email by saying that

she “does not pledge the people’s vote in advance on this or any

issue. I believe it is best to remain open minded on all issues

until the moment of voting, however, I have no issue with giving

my present or indication of how I would vote.” Id. She responded

to his third email saying that her “answer remains the same.” Id.

at 7.

According to plaintiffs, defendants used Blanchard’s email

answers to launch a negative social media campaign two weeks prior

to the election. Rec. Doc. 13 at 2. Defendants “caused four attack

mailers to be mailed that contained many false statements.” 1 Id.

The four mailers contained slogans that stated that Blanchard was

against congressional term limits. Rec. Doc. 1-1 at 9-10. The first

mailer stated that Blanchard should “stop opposing term limits!”

Id. at 9. The second mailer urged people to call Blanchard and ask

her why she opposes term limits. Id. at 10. The third mailer

included statements that Blanchard does not care about

congressional term limits. Id. at 13. The fourth mailer also

included phrases that stated that Blanchard was against

congressional term limits. Id. at 15.

As a result, plaintiffs filed a Petition for Damages and Fines

pursuant to La. R.S. 18:1463 and La. Civ. Code art. 2998 in the

22nd Judicial State Court for the Parish of St. Tammany, State of

Louisiana. Rec. Doc. 9-1 at 2. The petition contains three claims,

including (1) election law violations with a request for penalties;

(2) defamation with request for damages; and (3) enrichment without

cause under La. Civ. Code Ann. Art. 2298. Rec. Doc. 13 at 2. On

September 1, 2020, defendants removed the state action to federal

1 There is conflicting evidence on whether Tillman was involved in creating

and distributing the mailers. Tillman states that he was not involved in

creating and sending the mailers. Rec. Doc. 11-1 at 3. He states that his

only role was emailing Blanchard. Id. Blanchard contends that Tillman was

involved in creating and sending the mailers. Rec. Doc. 1-1 at 2.

court on the grounds of complete diversity and damages exceeding

$75,000. Rec. Doc. 1 at 2.

On October 9, 2020, defendants filed a motion to dismiss for

failure to state a claim and motion to strike pursuant to Louisiana

Code of Civil Procedure Article 971. Rec. Doc. 11. Defendants seek

to protect their right to free speech. Rec. Doc. 11-1 at 1.

Defendants also contend that plaintiffs have not alleged any

cognizable damages and therefore their claims should be dismissed

for failure to state a claim. Id.

On October 19, 2020, plaintiffs filed a response stating that

they could show the probability of success on their claim because

the mailers were published with actual malice. Rec. Doc. 12 at 1.

On October 26, 2020, defendants filed a reply arguing the

absence of actual malice evidence. Rec. Doc. 17 at 4.

II. LAW AND ANALYSIS

a. Motion to Strike

Louisiana Code of Civil Procedure Article 971 “is Louisiana’s

anti-SLAPP statute, which was enacted to protect the

constitutional right of free speech and encourage continued

participation in matters of public significance.” Hoffman v.

Bailey, 996 F. Supp. 2d 477, 487 (E.D.La.2014). The article states:

A cause of action against a person arising from any act of

that person in furtherance of the person's right of petition

or free speech under the United States or Louisiana

Constitution in connection with a public issue shall be

subject to a special motion to strike, unless the court

determines that the plaintiff has established a probability

of success on the claim.

La. Code Civ. Pro. art. 971(A)(1). This article explains that an

“act in furtherance” consists of “[a]ny written or oral statement

or writing made in connection with an issue under consideration or

review by a legislative, executive, or judicial body, or any other

official body authorized by law,” or “[a]ny written or oral

statement or writing made in a place open to the public or a public

forum in connection with an issue of public interest.” La. Code

Civ. Pro. art. 971(F)(1)(b)(c).

“The defendant must establish that a cause of action against

him arises from an act by him in furtherance of the exercise of

his right of petition or free speech under the United States or

Louisiana Constitution in connection with a public issue.”

Hoffman, 996 F. Supp. 2d at 488. “If the defendant makes this

showing, the burden then shifts to the plaintiff to demonstrate a

probability of success on his claim.” Id.

The United States Supreme Court stated that “[t]he First

Amendment has its fullest and most urgent application to speech

uttered during a campaign for political office.” Schittone v.

Stoma, 17-1732, p.5 (La. App. 1st Cir. 5/2/18), 2018 WL 2078822,

at *4 (citing Eu v. San Francisco County Democratic Central Comm.,

489 U.S. 214, 223 (1989)). Additionally, the Louisiana Supreme

Court explained that speech concerning the public “relat[es] to

any matter of political, social, or other concern to the

community.” Shelton v. Pavon, 17–0482, p.12 (La. 10/18/17), 236

So. 3d 1233, 1241 (holding that private disputes involving private

parties is not a matter of public concern)(citing Connick v. Myers,

461 U.S. 138, 146 (1983)).

The Louisiana First Circuit relied on jurisprudence from the

United States Supreme Court, which “stated that whether speech

addresses a matter of public concern must be determined by the

content, form and context of a given statement, as revealed by the

whole record.” Schittone, 2018 WL 2078822 at *4 (citing Connick,

461 U.S. at 147-48). The First Circuit concluded that distributing

campaign literature is an act in furtherance of the First Amendment

right of free speech. Lamz v. Wells, 05-1497, p.6 (La. App. 1st

Cir. 6/9/06), 938 So. 2d 792, 797; Schittone, 2018 WL 2078822 at

*4 (holding that the defendant’s radio and television

advertisement about judicial candidate was in furtherance of their

right to free speech).

Defendants argue that campaign mailers were made in

furtherance of their right to free speech and pertained to a matter

of public concern and interest, namely elections and a candidate’s

position on term limits. Rec. Doc. 11-1 at 10. By contrast,

plaintiffs argue that congressional terms have little relevance in

the State of Louisiana and are not an issue of public concern.

Rec. Doc. 12 at 10.

Plaintiffs’ argument is unavailing because the context of the

speech relates to a public issue and was made during a campaign

for political office. Id. The United States Supreme Court has

expressly held that such speech is protected by the First

Amendment. Eu, 489 U.S. at 223. Additionally, the campaign mailers

fall under the protection of Article 971 because congressional

term limits raise issues that are matters of political concern

to the community; and, the campaign mailers were written

statements that were distributed to the public. Therefore, the

speech in question is related to a public issue and was in

furtherance of defendants right to free speech.

Because defendants met their burden in showing the speech was

related to a public issue, the burden is shifted to plaintiffs, who

must demonstrate a probability of success on their claim. See

Schittone, 2018 WL 2078822 at *2. “The burden of proof on public

official plaintiffs in defamation cases concerning their official

conduct is indeed a very difficult one.” Davis v. Borskey,

94-2399, p. 13 (La. 9/5/95), 660 So. 2d 17, 24. “If the

plaintiff fails to demonstrate a probability of success, the

trial court dismisses the claim.” Henry v. Lake Charles Am.

Press, L.L.C., 566 F.3d 164, 171 (5th Cir. 2009).

“A cause of action for defamation arises out of La. C.C. art.

2315. Defamation involves the invasion of a person's interest in

his or her reputation and good name.” Starr v. Boudreaux, 2007-

0652, p. 5 (La. App. 1st Cir. 12/21/07), 978 So. 2d 384, 389

(citing Costello v. Hardy, 03–1146, p. 12 (La. 1/21/04), 864 So.

2d 129, 139). To prevail in a defamation action, “a plaintiff must

necessarily prove four elements: (1) a false and defamatory

statement concerning another; (2) an unprivileged publication to

a third party; (3) a fault (negligence or greater) on the part of

the publisher; and (4) resulting injury.” Fitzgerald v. Tucker,

98–2313, p. 10 (La. 6/29/99), 737 So.2d 706, 715. “If any one of

these required elements is lacking, plaintiff's cause of action

fails.” Id. (citing Costello, 864 So.2d at 140). “A non-movant’s

burden in opposing an Article 971 motion to strike is the same as

that of a non-movant opposing summary judgment under Rule 56.”

Block v. Tanenhaus, 867 F.3d 585, 590 (5th Cir. 2017). Therefore,

plaintiffs must show a genuine issue of material fact as to

defamatory, falsity, fault and injury. Id.

First, plaintiffs must show that the mailers were defamatory.

Cangelosi v. Schwegmann Bros. Giant Super Markets, 390 So. 2d 196,

198 (La. 1980). There are two categories of defamatory statements.

Markovich v. Villere, 2017-1739, p. 12 (La. App. 1st Cir. 2/28/19),

273 So. 3d 333, 343, writ denied, 2019-0500 (La. 5/20/19), 271 So.

3d 201. Statements can be defamatory per se if the statements

“expressly or implicitly accuse another of criminal conduct, or

which by their very nature tend to injure one's personal or

professional reputation.” Id. “When a plaintiff proves publication

of words that are defamatory per se, falsity and malice (or fault)

are presumed, but may be rebutted by the defendant.” Id.

Statements can also be defamatory “if the words, taken in

context, tend to injure the person’s reputation, to expose the

person to public ridicule, to deter others from associating or

dealing with the person, or to deprive the person of public

confidence in his or her occupation.” Davis, 660 So. 2d at 22.

“The question for the court in determining whether words have a

defamatory meaning is whether a third person hearing the

communication, taken in context, as intended in a defamatory

sense.” Id. In this case, “a plaintiff must prove, in addition to

defamatory meaning and publication, the elements of falsity,

malice (or fault) and injury.” Markovich, 273 So. 3d at 343. “In

cases involving statements made about a public figure, where

constitutional limitations are implicated, a plaintiff must prove

actual malice, i.e., that the defendant either knew the statement

was false or acted with reckless disregard for the truth.”

Costello, 864 So. 2d at 140–41 (citing Romero v. Thomson Newspapers

Wisconsin, Inc., 94–1105, p. 5 (La. 1/17/95), 648 So. 2d 866,

869)).

The Louisiana Second Circuit has held that the word “thug”

used when “referring to the opposing political campaign workers”

was not defamatory per se. William E. Crawford, 12 La. Civ. L.

Treatise, Tort Law 17:6 (2nd ed. 2020)(citing Garrett v. Kneass,

482 So. 2d 876 (La. Ct. App. 2d Cir. 1986)(concluding that the

word thug “does not impute any particular crime to the plaintiff”).

In contrast, the Louisiana Fifth Circuit held that a statement

made about a cadet in the police academy using steroids was

defamatory per se because “the friends of the cadet got the

impression that the cadet was using steroids.” Id. (citing Fourcade

v. City of Gretna, 598 So.2d 415 (La. Ct App. 5th Cir. 1992)).

In Costello, the Louisiana Supreme Court held that statements

made against an attorney were defamatory but not defamatory per

se. Costello, 864 So. 2d at 141. The statement made was that the

attorney’s representation “fell below the standard of care of

competent practitioners in his same field.” Id. The court found

that these statements allege negligence which “call into question”

the defendant’s “skill as an attorney” and therefore injure his

professional reputation. Id. The court explained that this

statement would not injure his professional reputation unless one

considers the extrinsic facts. Id. Therefore, the statement is

defamatory but not defamatory per se. Id. at 141-42. Plaintiffs

argue that statements contained in the mailers ruined

Blanchard’s reputation and “deters others from

associating with her and/or voting for her.” Rec. Doc. 12 at 14-

15. However, plaintiffs do not provide evidence that those who

received the mailers stopped associating with her or otherwise

interpreted the statements in a defamatory sense. See Rec. Doc. 1-

1 and 12. All statements contained therein pertained to Blanchard’s

opposition to term limits and at no point alleged criminal conduct.

See id. at 10-16.

Instead, plaintiffs offer evidence demonstrating a 3% drop in

Blanchard’s polling numbers after the mailers were distributed.

Rec. Doc. 12 at 17. Although this evidence may suggest a connection

between the mailers and Blanchard’s electability, it does not prove

that the mailers “ruined her reputation as a politician.” The

mailers did not allege that she was negligent nor do they allege

that she performed poorly at her job; rather the mailers simply

allege that Blanchard is against congressional term limits. See

Rec. Doc. 1-1. Therefore, it is unlikely that the statements were

defamatory per se or defamatory.

However, assuming arguendo that the statements are

defamatory, plaintiffs must prove falsity, fault and injury.

Cangelosi, 390 So. 2d at 198. Plaintiffs must prove that the

statements were false and may not recover if a defendant is able

to prove that the statements made were true. Costello, 864 So.2d

at 141. The Louisiana Supreme Court stated that “truth is a

defense, and it is sufficient if an allegedly libelous article is

substantially true: unimportant details need not be accurate.”

Romero, 648 So. 2d at 870.

In Brown v. Times-Picayune, LLC, the First Circuit held that

statements made by the defendant that the defense attorney “deserts

client midtrial” were false. 14-0160, p. 8 (La. App. 1st Cir.

11/3/14) 167 So.3d 665, 667-70. The court reasoned that this

headline wrongfully implied that the attorney abandoned his client

mid-trial and that “extreme negative connotations” resulted from

using the word “desert.” Id. at 669. The attorney’s withdrawal

from the case was to ensure the client received adequate

representation because he had never performed as lead counsel nor

had he handled juvenile sexual assault cases. Id. Therefore, the

court concluded that the statement that the plaintiff “deserted”

his client was inaccurate and false. Id.

In contrast, the Louisiana Supreme Court held that statements

made about a doctor were substantially true. Romero, 648 So. 2d at

871. The statement made was that the hospital’s high rate of

Caesarean surgeries was attributed to a certain physician that “is

nearing retirement and only attends longtime patients who have had

previous children—the category of women most likely to have a

Caesarean.” Id. at 869. The reporter who wrote the statement stated

that he interviewed an administrator at the hospital who said the

physician had a “limited, semi-retired practice.” Id. at 871. The

court stated that while the reporter’s comment was not precise, it

had “a reasonable basis” because of the administrator’s statement

made to the reporter. Id.

Plaintiffs allege that the mailers contain many false

statements. Rec. Doc. 1-1 at 7-15. The first mailer contained three

statements, including (1) Blanchard “refused to sign the pledge to

support congressional term limits;” (2) Blanchard “does not care

about term limits for Congress;” and (3) urging voters to tell

Blanchard to stop opposing term limits. Id. at 7-8. The second

mailer also included similar statements, such as urging voters to

call Blanchard “and ask her why she opposes President Trump’s

effort on term limits.” Id. at 10. It also included a statement

that stated that it is “outrageous that [Blanchard] refuses to

support term limits on Congress.” Rec. Doc. 1-1 at 11. The third

mailer also consisted of three statements, including Blanchard

“does not care about term limits;” Blanchard refused to sign the

U.S. Term Limits Pledge; and “stop opposing congressional term

limits.” Rec. Doc. 1-1 at 13. The fourth mailer included a similar

statement which said Blanchard does not support term limits for

Congress. Id. at 15.

Defendants maintain that the mailers’ statements are true as

they are based on emails exchanged between Blanchard and Tillman

where she expressly declined to support defendants’ stance on term

limits. Rec. Doc. 11-1 at 8; Rec. Doc. 11-1 at 2.

Defendants’ mailers collectively state that Blanchard is

against term limits. See Rec. Doc. 1-1 at 7-15. While some of the

statements in the mailers were exaggerated, there was truth behind

the statements. Unlike the statement in Brown, which

mischaracterized the defense attorney’s decision to withdraw

representation, the statements made in the mailers were based off

statements made by Blanchard. Although she expressed that she had

no objection to term limits, Blanchard choose not to support

defendants’ efforts. Blanchard’s declination of support after

numerous attempts by Tillman caused defendants to reasonably

believe that she was against congressional term limits. Therefore,

like Romero, defendants published statements from material

collected by them that they reasonably believed to be true.

However, even if this Court finds that the statements were

false, plaintiffs must prove that defendants published the mailers

with actual malice. Cangelosi, 390 So. 2d at 198. “In order to

recover damages for defamation under the New York Times Standard,

a plaintiff who is a public official must establish by clear and

convincing evidence that the defamatory statement was made with

actual malice.” Davis, 660 So. 2d at 23 (citing New York Times,

376 U.S. at 279-80). Actual malice is defined as knowledge that

the statement was false or published the statement with “reckless

disregard of whether it was false or not.” Id. at 10. (citing New

York Times, 376 U.S. at 279-80). “The public official must prove

that the defendant published the false statements with a high

degree of awareness of its probable falsity,” id. (citing Garrison

v. Louisiana, 379 U.S. 64, 74 (1964)), or that “the defendant in

fact entertained serious doubts as to the truth of the

publication.” Id. (citing St. Amant v. Thompson, 390 U.S. 727, 731

(1968)). “[R]eckless conduct is not measured by whether a

reasonably prudent man would have published, or would have

investigated before publishing.” Young v. Meyer, 527 So. 2d 391,

392 (La. App. 4th Cir. 1988) (citing St. Amant, 390 U.S. at 731).

The Louisiana Fourth Circuit upheld a trial court’s finding

of actual malice. Bruno v. Medley, 20-0515, p. 17 (La. App. 4th

Cir. 11/2/20), 2020 WL 6435795 at *8. The parties in this case

were running for judicial election wherein the plaintiff created

a television commercial that called the defendant a “deadbeat dad”

who failed to pay child support for 13 years. Id. The plaintiff

based her commercial off court records from the defendant’s

divorce. Id. at *7. The court records did not establish that the

defendant failed to pay child support for 13 years. Id.

Additionally, the plaintiff testified that the defendant did pay

for the child’s tuition and health care expenses which are

considered child support. Id. From this, the district court

concluded that the plaintiff acted with actual malice because she

knew health care and tuition were child support payments and she

had no evidence of a judgment that he failed to pay child support

payments. Id. at *8.

Additionally, in Lamz, the First Circuit held that the

plaintiff could not prove the elements of a defamation claim,

including actual malice. Lamz, 938 So. 2d at 798. The defendant

stated in an affidavit that he “did not act with knowledge of or

a reckless disregard of the truth.” Id. at 797. The First Circuit

stated that the evidence did not show that the plaintiff could

support actual malice without further explanation. Id. at 798.

Plaintiffs argue that Lamz does not apply in this case because

defendants knew that Blanchard did not oppose term limits based

off the email exchange between Blanchard and Tillman. Rec. Doc. 12

at 15. Plaintiffs argue that the affidavit submitted by Nick

Tomboulides, who is the Executive Director of U.S. Term Limits

show that defendants had such knowledge. Id. Tomboulides’s

affidavit confirms that the mailers were based off the email

exchange between Tillman and Blanchard. Rec. Doc. 11-2 at 2.

However, it neither shows nor suggests that defendants acted with

reckless disregard to the truth. See id.

Based on the same email conversation, defendants believed

that Blanchard does not support term limits because she failed to

sign their pledge. Rec. Doc. 11-1 at 8. The facts do not indicate

that defendants doubted the truth of these statements nor do they

indicate that defendants were aware that these statements were

false. In each email exchange with Tillman, Blanchard failed to

give her support for congressional term limits. Rec. Doc. 11-2 at

2. This failure caused defendants to create and distribute mailers

that conveyed what they earnestly believed to be Blanchard’s lack

of support. Because plaintiffs do not allege any other facts to

establish malice, their defamation claim fails.

However, assuming arguendo that the statements were made with

actual malice, plaintiffs must prove injury. Cangelosi, 390 So. 2d

at 198. “The injury resulting from a defamatory statement may

include nonpecuniary or general damages such as injury to

reputation, personal humiliation, embarrassment and mental anguish

even when no special damage such as loss of income is claimed.”

Costello, 864 So. 2d at 141 (citing Kosmitis v. Bailey, 28,585, p.

4 (La. App. 2nd Cir. 12/20/96), 685 So. 2d 1177, 1180). “Plaintiff

must present competent evidence of the injuries suffered” and “that

the defamatory statements were a substantial factor in causing the

harm.” Id. (citing Taylor v. Town of Arcadia, 519 So. 2d 303, 306

(La. App. 2d Cir.), writ denied, 522 So.2d 1097 (La. 1988)).

However, “there is no need to establish the actual pecuniary value

of the injury suffered.” Arnaud v. Dies, 2016-642, p. 12 (La. App.

3rd Cir. 12/7/16), 208 So. 3d 1017, 1026.

Here, plaintiffs claim that they suffered the injury of losing

the election. Rec. Doc. 12 at 17. Plaintiffs argue that these

mailers caused injury to Blanchard because they diminished her

reputation. Id. Plaintiffs state that Blanchard won early voting

by 51% and dropped to 48% in the polls after the mailers were

distributed, suggesting that the mailers were a substantial factor

in causing her harm. Id. Plaintiffs do not provide any other

evidence to prove injury to Blanchard’s reputation or to show how

Blanchard and her committee suffered financially. See Rec. Doc. 12

at 16-17. Plaintiffs failed to provide sufficient corroborating

evidence to show injury besides the fact that Blanchard dropped 3%

in the polls after the mailers were distributed. Id.

For the reasons stated above, defendants’ motion to strike

is granted and reasonable attorney’s fees are available

pursuant to Louisiana Civil Procedure Article 971.2 As such,

plaintiffs’ claims should be dismissed with prejudice.

b. Motion to Dismiss pursuant to Rule 12(b)(6)

Upon dismissing the central defamation claim, it is

unlikely that damages arising from plaintiffs’ remaining

claims will sustain diversity jurisdiction for failure to exceed

the jurisdictional minimum. 28 U.S.C. § 1332. Plaintiffs’

remaining claims are state election law violations and enrichment

without cause. Rec. Doc. 1-1 at 11-20.

2 Article 971(B) states that the prevailing party “shall be awarded reasonable

attorney’s fees and costs.” La. Code Civ. Pro. art. 971(B).

Plaintiffs argue that defendants violated La. R.S.

18:1463(A), La. R.S. 18:1463(C)(1), and La. R.S. 18:1463(C)(2)(c).

Rec. Doc. 1-1 at 17-18. La. R.S. 18:1463(F) states that “[w]hoever

violates any provision of this Section shall be fined not more

than two thousand dollars or be imprisoned, with or without hard

labor, for not more than two years, or both.” La. R.S. 18:1463(F)

This means that plaintiffs’ damages for violations of election law

may not exceed $2,000 in damages. Id. Additionally, defendants

state that only the district attorney can seek criminal penalties

and imprisonment. Rec. Doc. 11-1 at 16. Therefore, it is unlikely

that this claim has any monetary damages because the $2,000 fine

is a criminal penalty. See La. R.S. 18:1463.

Plaintiffs also seek reasonable attorney fees in connection

with their election law claim. However, a plaintiff may only

collect attorney fees under La. R.S. 18:1463 if a permanent

injunction is granted. See La. Stat. Ann. § 18:1463(D)(2).

Plaintiffs state in their reply that they are not asking for

injunctive relief because the election has already concluded. Rec.

Doc. 12 at 19. Therefore, plaintiffs would not be entitled to

attorney fees.

Last, plaintiffs claim damages for enrichment without cause.

La. Civ. Code Art. 2298 states the amount of damages that a

plaintiff may recover for enrichment without cause. It states that

“[t]he amount of compensation due is measured by the extent to

which one has been enriched or the other has been impoverished,

whichever is less. The extent of the enrichment or impoverishment

is measured as of the time the suit is brought or, according to

the circumstances, as of the time the judgment is rendered.” La.

Civ. Code Art. 2298. “The root principle of unjust enrichment is

that the plaintiff suffers an economic detriment for which he

should not be responsible, while the defendant receives an economic

benefit for which he has not paid.” Quaternary Res. Investigations,

LLC v. Phillips, 2018-1543, p. 11 (La. App. 1st Cir.

11/19/20)(citing State By & Through Caldwell v. Fournier Industrie

et Sante, 2017-1552 (La. App. 1st Cir. 8/3/18), 256 So.3d 295,

303, writ denied, 2018-2065 (La. 4/8/19), 267 So. 3d 607). It is

difficult to ascertain an amount of damages from the facts listed

in plaintiffs’ petition. Plaintiffs do not provide facts on how

defendants received an economic benefit. See Rec. Doc. 1-1 and 12.

It appears that this claim is generally unsuccessful because

it “cannot stand when a plaintiff has another remedy available to

it, particularly a contractual remedy.” Ferrara Fire Apparatus,

Inc. v. JLG Indus., Inc., 581 F. App'x 440, 442 (5th Cir. 2014).

Defendants argue that plaintiffs have another remedy available

which is a copyright claim, but plaintiffs did not bring this cause

of action against defendants. Rec. Doc. 1-1. Therefore,

plaintiffs’ unjust enrichment claim would not stand.

New Orleans, Louisiana this 31st day of March, 2021

____________________________________

SENIOR UNITED STATES DISTRICT JUDGE