Hairston v. Sun Belt Conference Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

PATRICK HAIRSTON CIVIL ACTION

VERSUS NO. 21-2088

SUN BELT CONFERENCE INC. SECTION: “G”

ORDER AND REASONS

Before the Court is Defendant Sunbelt Conference, Inc.’s (“Defendant”) “Rule 12(b)(6)

Motion for Partial Dismissal.”1 Defendant seeks dismissal of Plaintiff Patrick Hairston’s

(“Plaintiff”) Louisiana Unfair Trade Practices Act (“LUTPA”) claim. Plaintiff opposes the

motion.2 For the reasons discussed in detail below and accepting Plaintiff’s allegations as true,

Defendant was not engaged in trade or commerce when Plaintiff’s employment was terminated.

Therefore, Plaintiff has not stated a claim against Defendant under LUTPA. Accordingly, having

considered the motion, the memoranda in support and opposition, the record, and the applicable

law, the Court grants the motion.

I. Background

On October 8, 2021, Plaintiff filed a Complaint against Defendant in the Civil District

Court for the Parish of Orleans.3 In the Complaint, Plaintiff contends that he is a 50-year-old

1 Rec. Doc. 3.

2 Rec. Doc. 21.

3 Rec. Doc. 1–1.

African American and was employed by Defendant until he was fired on April 30, 2020.4 Plaintiff

contends that he was told his position was “shut down” due to budget cuts related to Covid-19, but

had a “sneaking suspicion” that he was actually fired due to the “culmination of a toxic workplace

that discriminated against him because of his race.”5 Plaintiff contends that his position was not

shut down, but was filled by a non-minority candidate immediately after he was fired.6 Plaintiff

avers that four other minority employees were also later terminated by Defendant.7

Plaintiff alleges that he received exemplary performance reviews from former

Commissioner Karl Benson (“Benson”).8 Plaintiff avers that at the end of Benson’s tenure, Keith

Gill (“Gill”) took over as Commissioner, and Kathy Keene (“Keene”) remained the Deputy

Commissioner.9 Plaintiff avers that Keene did not support hiring Plaintiff, and opposed hiring

other minority employees.10 Instead, Plaintiff avers that Keene recommended hiring white

employees.11 Plaintiff alleges that upon Benson’s retirement, Keene terminated the minority

employees that Benson hired, and “favored white employees she had previously recommended for

hire.”12

4 Id. at 2.

5 Id.

6 Id.

7 Id.

8 Id.

9 Id.

10 Id.

11 Id.

12 Id.

Plaintiff contends that when Gill and Keene took over, there was an “immediate change”

in the office, and that one minority employee quit because of the “developing toxic work

conditions.”13 Plaintiff avers that Keene would leave him out of meetings that directly related to

his job responsibilities.14 Plaintiff alleges that information that was pertinent to his department was

being “passed over him and provided to Keene.”15 Plaintiff further alleges that Keene began taking

over Plaintiff’s job responsibilities.16 When Plaintiff confronted Keene about why she was doing

this, Keene informed him that Gill was not pleased with his work.17 However, Plaintiff alleges that

Keene did not offer any direction as to how to fix the problem.18 Additionally, Plaintiff asserts that

he was retaliated against when he voiced his concerns and that Keene increasingly scrutinized his

work.19

Plaintiff alleges that he was terminated over the phone on April 30, 2020.20 Plaintiff avers

that Gill “would not call the termination a termination, he could not specify what work product

was unsatisfactory, he would not say what the future of the position would look like, nor did he

say he would put the reason for termination in writing.”21 Plaintiff contends that Gill did not have

13 Id.

14 Id. at 3.

15 Id.

16 Id.

17 Id.

18 Id.

19 Id.

20 Id.

21 Id.

a significant say in Plaintiff’s termination, but rather that Gill was used “as a shield” because he

was the “lone remaining minority employee at the Sun Belt.”22

Plaintiff brings claims for breach of contract (Count One),23 race discrimination (Count

Two),24 violations of LUTPA (Count Three),25 and failure to pay vacation time (Count Four).26

Under Count Two, Plaintiff requests punitive damages.27 The Complaint also states that Plaintiff

“filed a charge of age and racial discrimination with the EEOC in New Orleans, Louisiana on

October 16, 2020,” and received “a dismissal and notice of rights on July 13, 2021.”28 The

Complaint attaches as exhibits both the EEOC Charge and the Dismissal and Notice of Rights.29

On November 11, 2021, Defendant removed the case to this Court, asserting both federal

question and diversity jurisdiction.30 On November 12, 2021, Defendant filed the instant partial

motion to dismiss.31 On November 23, 2021, Plaintiff filed a motion to remand.32 On December

16, 2021, this Court denied Plaintiff’s motion to remand because the complaint raised a federal

question by attaching and incorporating an EEOC charge that stated a claim under Title VII.33

22 Id. at 4.

23 Id.

24 Id. at 5.

25 Id. at 6.

26 Id. at 7.

27 Id. at 6.

28 Id. at 1.

29 Id. at 8, 12.

30 Rec. Doc. 1.

31 Rec. Doc. 3.

32 Rec. Doc. 6.

33 Rec. Doc. 21.

Subsequent to that ruling, Plaintiff amended the Complaint to remove the EEOC charge and his

request for punitive damages.34

On January 28, 2022, Plaintiff filed a second motion to remand, asserting that the case

should be remanded because any federal claim was dismissed and the Court does not have diversity

jurisdiction over the state law claims.35 On February 15, 2022, Defendant filed its opposition to

the second motion to remand.36 On May 11, 2022, the Court denied the second motion to remand,

finding that it has diversity jurisdiction over this case and the forum defendant rule did not bar

removal.37

As noted above, the instant partial motion to dismiss was filed on November 12, 2021.38

Plaintiff filed an opposition on January 18, 2022.39 Defendant filed a reply brief with leave of

Court on March 7, 2022.40

II. Parties’ Arguments

A. Defendant’s Arguments in Support of the Partial Motion to Dismiss

Defendant argues that Plaintiff’s LUTPA claim should be dismissed.41 Defendant asserts

that Plaintiff’s LUTPA claim fails for two reasons.42 First, Defendant argues that it was not

34 Rec. Doc. 33.

35 Rec. Doc. 34.

36 Rec. Doc. 43.

37 Rec. Doc. 43.

38 Rec. Doc. 3.

39 Rec. Doc. 27.

40 Rec. Doc. 45.

41 Rec. Doc. 3 at 1.

42 Rec. Doc. 3-1 at 4.

engaged in trade or commerce when it terminated Plaintiff’s employment.43 Although Plaintiff has

alleged discrimination and breach of contract, Defendant asserts that these allegations are not

sufficient to rise to the level of fraud, misrepresentation, deception, or other unethical conduct that

is prohibited by LUTPA.44

Second, Defendant contends that Plaintiff has not alleged facts sufficient to support a

LUTPA claim.45 Defendant asserts that Plaintiff makes only conclusory allegations that are

insufficient to state a claim.46 Defendant argues that Plaintiff cannot pursue a LUTPA claim as an

alternative remedy to breach of contract or race discrimination.47 Because Plaintiff’s LUTPA claim

is nothing more than a rephrasing of his other claims, for which there is already a legal remedy,

Defendant asserts that the Court should dismiss the LUTPA claim.48

Alternatively, if the Court allows the LUTPA claim to proceed, Defendant argues that the

request for treble damages should be dismissed. Defendant asserts that LUTPA only allows parties

to recover treble damages for wrongful acts that occur after being put on notice by the Attorney

General.49 Defendant contends that there is no allegation that Defendant was provided such notice

here.50

B. Plaintiff’s Arguments in Opposition to the Motion

43 Id.

44 Id. at 6.

45 Id.

46 Id.

47 Id. at 7.

48 Id. at 8.

49 Id.

50 Id.

In opposition, Plaintiff asserts that he has adequately stated a claim under LUTPA.51

Plaintiff contends that the Louisiana Supreme Court has held that recovery under LUTPA is

available to anyone who has suffered due to an unfair or deceptive method, act, or practice, not

just consumers or business competitors.52 Additionally, Plaintiff asserts that the substantive

prohibition of LUTPA is broad, as it was intended by the legislature to account for a variety of

possible unfair and deceptive practices.53 Plaintiff argues that he has stated a claim under LUTPA

as he has pled that his losses resulted from Defendant’s actions while unfairly discriminating

against him, ignoring handbook procedures, and misrepresenting the reasons for his employment,

all of which he argues fall under the use of unfair methods or deceptive acts or practices in the

conduct of any trade or commerce.54 Plaintiff asserts that Defendant’s argument regarding treble

damages is premature because “[s]uch damages may not be assessed until the Court makes an

appropriate finding and enters a judgment in Defendant’s favor, and the proof of notice to the

Louisiana Attorney General that is required to recover treble damages is not a prerequisite for

stating a claim under the statute.”55

C. Defendant’s Arguments in Further Support of the Motion

51 Rec. Doc. 27 at 2.

52 Id. (citing Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 2009-1633 (La. 4/23/10); 35 So. 3d

1053, 1057–58).

53 Id. at 2–3 (citing Roustabouts, Inc. v. Hamer, 447 So. 2d 543, 548 (La. Ct. App. 1 Cir. 1984)).

54 Id. at 3.

55 Id. at 4 (quoting Melito v. Hopkins, No. 20-240, 2020 WL 2197916, at *4 (E.D. La. May 6, 2020)).

In reply, Defendant asserts that Plaintiff ignored each of the arguments raised in the

motion.56 Defendant contends that Plaintiff has not sufficiently alleged that it was engaged in

“trade or commerce” when terminating his employment.57 Defendant notes that Plaintiff relies on

a 1984 case decided by the Louisiana First Circuit Court of Appeal to support the assertion that

LUTPA covers a wide range of conduct.58 However, Defendant points out that the Louisiana

Supreme Court later stated that “the range of prohibited practices under LUTPA is extremely

narrow.”59 Defendant reiterates that it was not engaged in trade or commerce when Plaintiff’s

employment was terminated.60

III. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed for

“failure to state a claim upon which relief can be granted.”61 A motion to dismiss for failure to

state a claim is “viewed with disfavor and is rarely granted.”62 “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’”63 “Factual allegations must be enough to raise a right to relief above the

speculative level.”64 A claim is facially plausible when the plaintiff has pleaded facts that allow

56 Rec. Doc. 45 at 1.

57 Id.

58 Id. at 2 (citing Hamer, 447 So. 2d at 548).

59 Id. (quoting Cheramie, 35 So. 3d at 1060).

60 Id.

61 Fed. R. Civ. P. 12(b)(6).

62 Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).

63 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)).

64 Twombly, 550 U.S. at 555.

the court to “draw the reasonable inference that the defendant is liable for the misconduct

alleged.”65

On a motion to dismiss, asserted claims are liberally construed in favor of the claimant,

and all facts pleaded are taken as true.66 However, although required to accept all “well-pleaded

facts” as true, a court is not required to accept legal conclusions as true.67 “While legal conclusions

can provide the framework of a complaint, they must be supported by factual allegations.”68

Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements” will not suffice.69 The complaint need not contain detailed factual allegations, but it

must offer more than mere labels, legal conclusions, or formulaic recitations of the elements of a

cause of action.70 That is, the complaint must offer more than an “unadorned, the-defendant-

unlawfully-harmed-me accusation.”71 From the face of the complaint, there must be enough

factual matter to raise a reasonable expectation that discovery will reveal evidence as to each

element of the asserted claims.72 If factual allegations are insufficient to raise a right to relief above

the speculative level, or if it is apparent from the face of the complaint that there is an “insuperable”

bar to relief, the claim must be dismissed.73

65 Iqbal, 556 U.S. at 663 (citing Twombly, 550 U.S. at 556).

66 Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 164 (1993); see also

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007).

67 Iqbal, 556 U.S. at 678–79.

68 Id. at 679.

69 Id. at 678.

70 Id.

71 Id.

72 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).

73 Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007); Moore v. Metro. Hum. Serv. Dist., No. 09-6470,

IV. Analysis

Defendant seeks dismissal of Plaintiff’s LUTPA claim, arguing that the claim fails for two

reasons.74 First, Defendant argues that it was not engaged in trade or commerce when it terminated

Plaintiff’s employment.75 Second, Defendant contends that Plaintiff has not alleged facts sufficient

to support a LUTPA claim.76 Defendant asserts that Plaintiff makes only conclusory allegations

that are insufficient to state a claim.77 In opposition, Plaintiff asserts that he has stated a claim

under LUTPA as he has pled that his losses resulted from Defendant’s actions, while unfairly

discriminating against him, ignoring handbook procedures, and misrepresenting the reasons for

his employment, all of which he argues fall under the use of unfair methods or deceptive acts or

practices in the conduct of any trade or commerce.78

The Louisiana Unfair Trade Practices Act (“LUTPA”) declares unlawful “[u]nfair methods

of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”79

Louisiana Revised Statute § 51:1409 provides, in pertinent part, that “[a]ny person who suffers

any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the

2010 WL 1462224, at * 2 (E.D. La. Apr. 8, 2010) (Vance, J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).

74 Rec. Doc. 3-1 at 4.

75 Id.

76 Id. at 6.

77 Id.

78 Rec. Doc. 27 at 3.

79 La. Rev. Stat. § 51:1405(A).

use or employment by another person of an unfair or deceptive method, act, or practice . . . may

bring an action individually . . . to recover actual damages.”80 The Louisiana Supreme Court has

stated that the goals of LUTPA include “halting unfair business practices and sanctioning the

businesses which commit them, preserving and promoting effective and fair competition, and

curbing business practices that lead to a monopoly and unfair restraint of trade within a certain

industry.”81

Courts determine what constitutes “unfair” and “deceptive” conduct on a case-by-case

basis.82 Louisiana courts have stated that a practice is unfair “when the practice is unethical,

oppressive, unscrupulous, or substantially injurious.”83 Likewise, Louisiana courts have described

a trade practice as deceptive when it amounts to “fraud, deceit or misrepresentation.”84 Ultimately,

however, “the range of prohibited practices under LUTPA is extremely narrow.”85

LUTPA also requires that unfair methods of competition and unfair or deceptive acts occur

in the course of “trade” or “commerce.”86 Trade or commerce is defined as “the advertising,

offering for sale, sale, or distribution of any services and any property, corporeal or incorporeal,

80 La. Rev. Stat. § 51:1409(A).

81 Quality Env’t Processes, Inc. v. I.P. Petroleum Co., 2013-1582 (La. 5/7/14); 144 So. 3d 1011, 1025.

82 Id.

83 See Pinero v. Jackson Hewitt Tax Serv. Inc., 594 F. Supp. 2d 710, 720–21 (E.D. La. 2009) (Vance, J.)

(quoting Jefferson v. Chevron U.S.A. Inc., 713 So. 2d 785, 792 (La. App. 4 Cir. 1998)).

84 Id. at 721 (quoting Jefferson, 713 So. 2d at 793) (emphasis added); see also Computer Mgmt. Assistance

Co. v. Robert F. DeCastro, Inc., 220 F.3d 396, 404 (5th Cir. 2000) (“To recover under LUTPA, a plaintiff must prove

fraud, misrepresentation, or other unethical conduct.”).

85 Quality Envtl. Processes, Inc., 144 So. 3d at 1025.

86 Tchefuncte Harbour Townhome Ass’n, Inc. v. Costanza, 2015-0524 (La. App. 1 Cir. 11/6/15), 2015 WL

6842117 at *3; La. Rev. Stat. § 51:1405(A).

immovable or movable, and any other article, commodity, or thing of value wherever situated, and

includes any trade or commerce directly or indirectly affecting the people of the state.”87

With regard to his LUTPA claim, Plaintiff alleges:

During his employment with [Defendant, Plaintiff] opposed unlawful trade

practices . . . specifically by targeting and terminating African American

employees, misrepresenting why the termination occurred, deceptively ignoring

employee handbook procedures for terminating an employee, misrepresenting to

[Plaintiff] that the position was being closed for Covid-19 budget reasons when the

position was filled by a non-minority shortly thereafter.

In response to, and as a direct result of raising concerns about [Plaintiff’s]

performance and how he could do better, [Plaintiff] was retaliated against by

[Defendant], which adversely affected the conditions of [Plaintiff’s] employment.

[Defendant’s] fraudulent, deceitful, and unethical actions are in violation of

LUTPA.88

In Stevens v. St. Tammany Parish Government, the plaintiffs brought a LUTPA claim

against the St. Tammany Parish Government, alleging that the Parish authorized a public works

project that increased the drainage burden on the plaintiffs’ properties.89 The Parish argued that

the plaintiffs failed to state a cause of action under LUTPA because they failed to identify: (1)

what “trade or commerce” the Parish was engaged in; (2) that the plaintiffs were “consumers” of

the Parish’s alleged commercial activities; or (3) that the Parish’s alleged commercial activities

were fraudulent, misrepresentative, deceptive, or otherwise unethical.90 The Louisiana First

Circuit Court of Appeal affirmed the district court’s order dismissing the LUTPA claim because

87 La. Rev. Stat. § 51:1402(10).

88 Rec. Doc. 1-1 at 6.

89 Stevens v. St. Tammany Par. Gov't, 2019-1555 (La. App. 1 Cir. 4/8/21); 322 So. 3d 1268, 1274, writ denied,

2021-00800 (La. 11/3/21), 326 So. 3d 898.

90 Id. at 1279.

the plaintiffs failed to allege that the Parish was engaged in trade or commerce.91 Although the

plaintiffs attempted to assert that the Parish was acting in a “corporate capacity,” the appellate

court held that “these allegations do not state that [the Parish] was distributing services or property

to plaintiffs so as to come within the definition of ‘trade or commerce.’”92

Similarly, here, Plaintiff does not allege that Defendant was engaged in trade or commerce

when it terminated Plaintiff’s employment. As discussed above, trade or commerce is defined as

“the advertising, offering for sale, sale, or distribution of any services and any property, corporeal

or incorporeal, immovable or movable, and any other article, commodity, or thing of value

wherever situated, and includes any trade or commerce directly or indirectly affecting the people

of the state.”93 Plaintiff alleges that Defendant terminated his employment based on his race,

ignored handbook procedures, and misrepresented the reasons for the termination. None of these

allegations show how Defendant was advertising, offering for sale, selling, or distributing any

services or any property. Accordingly, accepting Plaintiff’s allegations as true as the Court must

on a Rule 12(b)(6) motion, Plaintiff has not stated a LUTPA claim against Defendant. Thus, the

Court will grant Defendant’s motion for partial dismissal as to Plaintiff’s LUTPA claims.

Plaintiff’s additional claims for breach of contract, race discrimination, and failure to pay vacation

time remain pending.

91 Id.

92 Id.

93 La. Rev. Stat. § 51:1402(10).

VY. Conclusion

For the reasons discussed above, Defendant was not engaged in trade or commerce when

Plaintiff's employment was terminated. Therefore, accepting Plaintiffs allegations as true, he has

not stated a claim against Defendant under LUTPA. Accordingly,

IT IS HEREBY ORDERED that Defendant’s “Rule 12(b)(6) Motion for Partial

Dismissal”** is GRANTED. Plaintiff's LUTPA claims are hereby DISMISSED WITH

PREJUDICE.

_ 20th

NEW ORLEANS, LOUISIANA, this day of July, 2022.

Deeg J pel BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

* Rec. Doc. 3.

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