Landry v. Department of Children and Family Services State of Louisiana

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

COURTNEY LANDRY, ET AL CIVIL ACTION

VERSUS NO. 21-794

DEPARTMENT OF CHILD AND FAMILY SERVICES SECTION “B”(4)

STATE OF LOUISIANA, ET AL

ORDER AND REASONS

Before the Court are plaintiffs’ motion to remand (Rec. Doc.

11) and defendants’ opposition (Rec. Doc. 15). For the following

reasons,

IT IS ORDERED that the motion (Rec. Doc. 11) is DENIED.

FACTS OF THE CASE AND PROCEDURAL HISTORY

This suit is related to a previous case filed by plaintiffs

Courtney Landry and Johnny Jacob Landry, individually and on behalf

of their minor children (collectively “plaintiffs”), in this Court

against defendants Louisiana Department of Children and Family

Services (“DCFS”); Marketa Garner Walters both in her official

capacity as Secretary of DCFS and in her individual capacity

(“Walters”); and Troy Thomas in her individual capacity (“Thomas”)

(collectively “defendants”). Rec. Doc. 11-1 at 2; see Landry, et

al v. Department of Child and Family Services State of Louisiana,

et al, CA 20-2630, ECF No. 1 (“First Landry Lawsuit”).

On September 29, 2020, plaintiffs filed the First Landry

Lawsuit in this Court pursuant to Louisiana tort law and 28 U.S.C.

§ 1983, alleging that defendants conspired to remove plaintiffs’

22-month-old foster child from their home and that DCFS retaliated

against plaintiffs for sharing their story with the media. Rec.

Doc. 11-1 at 2. On November 10, 2020, defendants filed a motion to

dismiss, requesting that Walters be dismissed for lack of subject

matter jurisdiction because she is entitled to Eleventh Amendment

immunity and that Thomas be dismissed for failure to state a claim.

Landry, CA 20-2630, ECF No. 15 at 1. Rather than responding to

defendants’ motion to dismiss, plaintiffs moved to file an amended

complaint wherein plaintiffs removed their official capacity

claims against Walters. Id., ECF No. 19.

On December 3, 2020, this Court granted plaintiffs leave to

file an amended complaint and dismissed as moot defendants’ motion

to dismiss. Id., ECF No. 20. Despite plaintiffs’ attempt in their

amended complaint to rectify the Eleventh Amendment issues,

defendants subsequently moved to dismiss the amended complaint on

December 9, 2020. Id., ECF. No. 23. Defendants once again argued

that Walters is entitled to Eleventh Amendment immunity and that

all individual claims against Walters and Thomas should be

dismissed for failure to state a claim. Id.

After admitting that “their attempt to have this matter

adjudicated in Federal Court was futile,” plaintiffs decided that

state court would be the more agreeable forum for both parties to

proceed with litigation. Rec. Doc. 11-1 at 2. Thus, without ever

filing an opposition to defendants’ second motion to dismiss,

plaintiffs filed a voluntary motion to dismiss without prejudice

with defendants’ consent. Id., ECF No. 26.

On January 21, 2021, plaintiffs refiled their state complaint

against defendants in the Civil District Court for the Parish of

Orleans, State of Louisiana (“Second Landry Lawsuit”). Rec. Doc.

11-1 at 2; Rec. Doc. 1-2. On April 19, 2021, defendants removed

the matter to this Court, arguing that plaintiffs’ First Amendment

and Section 1983 claims satisfy federal question jurisdiction

pursuant to 28 U.S.C. §§ 1331, 1441, and 1446. Rec. Doc. 1 at 2.

On April 27, 2021, plaintiffs filed the instant motion to

remand on the grounds that the doctrine of judicial estoppel should

bar defendants from proceeding in this Court. Rec. Doc. 11-1 at 4.

On May 3, 2021, defendants timely opposed the motion, arguing

that judicial estoppel is inapplicable because their removal is

not inconsistent with Walters’s prior invocation of the sovereign

immunity defense and that this Court never formally “accepted”

this defense before plaintiffs voluntarily dismissed the action.

Rec. Doc. 15 at 7.

LAW AND ANALYSIS

A. Remand Standard

Federal courts are “courts of limited jurisdiction, having

only the authority endowed by the Constitution and that conferred

by Congress.” Epps v. Bexar-Medina-Atascosa Counties Water

Improvement Dist. No. 1, 665 F.2d 594, 595 (5th Cir. 1982). A

defendant may remove a civil action pending in state court only

where a federal court has original jurisdiction over the action.

28 U.S.C. § 1441(a). Once removal jurisdiction is challenged, the

removing defendant has the burden of establishing facts that would

show federal jurisdiction. Allen v. R & H Oil & Gas Co., 63 F.3d

1326, 1335 (5th Cir. 1995); Howery v. Allstate Ins. Co., 243 F.3d

912, 916 (5th Cir. 2001). Any ambiguities should be construed

against removal and in favor of remand. Manguno v. Prudential Prop.

And Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

B. Judicial Estoppel

Judicial estoppel is a common law doctrine that prevents a

party from assuming inconsistent positions in litigation. In re

Superior Crewboats, Inc., 374 F.3d 330, 334 (5th Cir. 2004). The

judicial estoppel doctrine is intended “to protect the integrity

of the judicial process by preventing parties from playing fast

and loose with the courts to suit the exigencies of self interest.”

Brandon v. Interfirst Corp., 858 F.2d 266, 268 (5th Cir. 1988).

The court may invoke the judicial estoppel doctrine at its

discretion if (1) the party’s current position is “clearly

inconsistent with its previous one” and (2) “that party must have

convinced the court to accept that previous position.” Gabarick v.

Laurin Maritime (America) Inc., 753 F.3d 550, 553 (5th Cir.

2014)(quoting New Hampshire v. Maine, 532 U.S. 742, 743 (2001)).1

1. Inconsistent Positions

Judicial estoppel requires a showing of an inconsistent

position, which “often turns on whether the positions relate to

the same issue or thing.” NGM Insurance Company v. Bexar County,

Texas, 211 F.Supp.3d 923, 932 (W.D.Tex. 2016). “Where two positions

take opposite sides on the same issue, many cases find an

inconsistency of positions.” Id. (citing RSR Corp. v. Int’l Ins.

Co., 612 F.3d 851, 860 (5th Cir. 2010)).

In Guerry v. Frakes, the court originally agreed with the

defendants that plaintiff’s state claims were barred by sovereign

immunity and dismissed the action without prejudice to reassert in

state court. 251 F.Supp.3d 1278, 1281 (D.Neb. 2017). The court

later exercised its discretion to estop the defendants from

removing plaintiff’s state action in view of defendants’ clearly

inconsistent jurisdictional argument. Id.

In relying on Guerry, plaintiffs argue that estoppel is the

appropriate means to prevent defendants from removing the same

claims they originally moved to dismiss under the Eleventh

Amendment. Rec. Doc. 11-1 at 8. Contrarily, defendants maintain

1 Although the Supreme Court in New Hampshire v. Maine identified three elements

to consider before applying the judicial estoppel doctrine, the Fifth Circuit

has repeatedly held that only the two above requirements must be met. Gabarick,

753 F.3d at 553.

that they consistently sought Walters’ dismissal based on

sovereign immunity but never challenged that this Court had

original jurisdiction over plaintiffs’ federal cause of action.

Rec. Doc. 15 at 7.

The record is clear that defendants’ prior sovereign immunity

argument, which served as the basis of their motions to dismiss,

has now been effectively waived through their voluntary removal.

See Lapides v. Bd. Of Regents, 535 U.S. 613, 624 (2002); see also

Rec. Doc. 4-1 at 9. While plaintiffs raise valid arguments

concerning defendants’ seemingly inconsistent Eleventh Amendment

position, this Court nevertheless finds Guerry unpersuasive

because we never formally accepted defendants’ position, as

discussed further below.

2. Judicial Acceptance

Before the court can apply judicial estoppel, the movant must

also show that “the first court has adopted the position urged by

the party to be estopped.” In re Coastal Plains, Inc., 179 F.3d

197, 206 (5th Cir. 1999). Requiring judicial acceptance of the

previous position “minimizes the danger of a party contradicting

the court’s determination based on a party’s prior position, and

thus mitigates the corresponding threat to judicial integrity.”

Id.

It is important to note that the Fifth Circuit’s standard

governing this element is “slightly unsettled.” NGM, 211 F.Supp.3d

at 933; see Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 399

(5th Cir. 2003)(holding that the judicial acceptance requirement

could be met if a party makes an argument “with an explicit intent

to induce the district court’s reliance. . .regardless of whether

that party prevails”); but see Hopkins v. Cornerstone Am., 545

F.3d 338, 348 (5th Cir. 2008)(“While we need not rule on the

validity of [Hall] here, we note its potential inconsistency with

our general approach and with the Supreme Court’s analysis in New

Hampshire.”). The Fifth Circuit has since strayed from the Hall

approach and generally requires actual acceptance “either as a

preliminary matter or as part of a final disposition.” Superior

Crewboats, 374 F.3d at 335.

In Prideaux, the plaintiff argued that the lower court

accepted the defendant’s prior position on plaintiff’s underlying

culpability by dismissing the action upon notice of the parties’

settlement agreement. Prideaux v. Tyson Foods, Inc., 387 F.App’x

474, 478 (5th Cir. 2010). The Fifth Circuit disagreed and held

that judicial estoppel is inapplicable to later proceedings where

a settlement effectively dismissed the original action because

“settlements in ordinary civil cases do not require the judicial

acceptance of either party’s position.” Id. Of significance, the

court noted that defendant never successfully asserted its prior

position, given that settlement was reached at the initial pleading

stage before the court could ever reach the merits. Id.; cf. NGM,

211 F.Supp.3d at 935 (judicially estopping plaintiff from arguing

an inconsistent position from the one accepted by the magistrate

judge in his report and recommendation on a dispositive motion).

Here, defendants argue that this Court never accepted its

Eleventh Amendment argument because their motions to dismiss were

ultimately mooted by plaintiffs’ litigation decisions. Rec. Doc.

15 at 7. Although plaintiffs acknowledge that this Court did not

have an opportunity to formally accept defendants’ position, they

contend that their decision to dismiss the action and refile in

state court was guided by defendants’ repeated representations of

their Eleventh Amendment immunity defense. Rec. Doc. 11-1 at 6.

Like the parties’ settlement in Prideaux, plaintiffs’

decision to voluntarily dismiss the action prevented this Court

from considering defendants’ motion to dismiss, much less from

adopting their position that Walters was entitled to Eleventh

Amendment immunity. Plaintiffs’ reliance on defendants’

representations does not persuade this Court to grant them relief

because the Fifth Circuit has made clear that judicial estoppel

solely concerns the court’s reliance and subsequent adoption of

the party’s position. Coastal Plains, 179 F.3d at 205 (because

judicial estoppel protects the judicial system, rather than the

litigants, “detrimental reliance by the opponent of the party

against whom the doctrine is applied is not necessary”). Because

plaintiffs have failed to show judicial acceptance of defendants’

prior inconsistent position, the extraordinary remedy of judicial

estoppel should not be granted.

3. Public Policy

Plaintiffs also raise public policy concerns that they

suggest warrant remand. Rec. Doc. 11-1 at 8. “The policies

underlying the doctrine include preventing internal inconsistency,

precluding litigants from playing fast and loose with the courts,

and prohibiting parties from deliberately changing positions

according to the exigencies of the moment.” Coastal Plains, 179

F.3d at 206.

Plaintiffs argue that defendants’ request to proceed in a

court they previously sought dismissal from reflects improper

forum shopping. Rec. Doc. 11-1 at 8. Defendants refute the

allegation that they acted in bad faith and indicate that they

were merely exercising their statutory right to remove plaintiffs’

federal cause of action. Rec. Doc. 15 at 8-9.

In Ute Indian Tribe of Uintah and Ouray Reservation v.

Lawrence, the plaintiff filed a breach of contract claim in federal

court against the defendant tribe, who successfully argued that

the court lacked subject matter jurisdiction. 289 F.Supp.3d 1242,

1254 (D.Utah 2018). The court invoked the judicial estoppel

doctrine, in part, because defendants’ bad faith removal on the

eve of trial was clearly intended to avoid an unfavorable judgment

in state court. Id. The court considered the policy implications

and stated that the defendants’ “flip-flopping of positions and

the unfair advantage it would give [them] supports the court

declining to exercise supplemental jurisdiction.” Id.

Removing the Second Landry Lawsuit shortly after its

commencement does not demonstrate the same kind of “fast and loose”

conduct exhibited by the defendants in Ute Indian Tribe. Thus,

plaintiffs’ assertion that defendants’ Eleventh Amendment position

induced them to voluntarily dismiss this dispute and “jump through

hoops” to commence state litigation is unavailing. Therefore, this

Court finds that public policy does not justify estopping

defendants’ proper removal of this case.

New Orleans, Louisiana this 10th day of June, 2021

___________________________________

SENIOR UNITED STATES DISTRICT JUDGE