# Avery v. Louisiana Leadership Fund, LLC

> District Court, E.D. Louisiana · June 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10190923

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** June 13, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DAWN MICHELE AVERY CIVIL ACTION

VERSUS NO: 23-5476

LOUISIANA LEADERSHIP FUND, SECTION: “J”(5)
LLC, ET AL.

ORDER & REASONS
Before the Court is a Motion to Dismiss Pursuant to Rule 12(b)(1), or
Alternatively, Rule 12(b)(6) (Rec. Doc. 21), filed by Defendants Louisiana Leadership
Fund, LLC, 360 Touch, LLC, and Lutisha Merrill. Plaintiff Dawn Michelle Avery has
opposed the motion (Rec. Docs. 26, 30), and Defendants have filed a reply (Rec. Doc.
33). Defendant Steve Fairbanks has also filed a Motion to Dismiss for Lack of Personal
Jurisdiction Pursuant to Fed. R. Civ. P. Rule 12(b)(2) (Rec. Doc. 22). Plaintiff has
opposed this motion (Rec. Doc. 27) and Mr. Fairbanks has filed a reply (Rec. Doc. 32).
Having considered the motions and legal memoranda, the record, and the applicable
law, the Court finds that Defendants’ Motion to Dismiss (Rec. Doc. 21) should be
GRANTED, and Steve Fairbank’s motion should be DENIED as moot.
FACTS AND PROCEDURAL BACKGROUND
This case arises out of a television advertisement that aired during then-
candidate Jeff Landry’s campaign for governor. This advertisement alleged that then-
Attorney General Landry declined to prosecute a child pornographer in exchange for
a campaign contribution. Plaintiff Dawn Michelle Avery, a Louisiana voter, filed a
Petition for Injunctive Relief in the 22nd Judicial District Court for the Parish of St.
Tammany, alleging that this ad contained false information. In response to the
Temporary Restraining Order issued on September 11, 2023, Defendant Louisiana

Leadership Fund (“LLF”) modified the advertisement and continued to air it. Plaintiff
alleged that this modified advertisement still contained false information in violation
of La. R.S. 18:1463(C) and filed a Supplemental and Amending Petition for Injunctive
Relief and a separate Motion for Contempt. In this Supplemental and Amending
Petition, Plaintiff added Defendants Lutisha Merrill and 360 Touch, LLC (“360
Touch”). Merrill is the sole member and manager of 360 Touch and works as a media

buyer to place advertisements for her clients. Plaintiff alleges that Merrill and 360
Touch acted in concert with LLF to distribute the advertisement in violation of the
Temporary Restraining Ordered issued by the state court. Before a hearing could be
held on these motions, Defendants removed the matter to this Court.
Plaintiff then filed a Supplemental and Amended Complaint naming Steve
Fairbanks, the sole member of LLF, as a Defendant. Fairbanks has now filed a motion
to dismiss the claims against him for lack of personal jurisdiction while LLF, 360

Touch, and Merrill have filed a motion to dismiss for lack of subject matter
jurisdiction and alternatively for failure to state a claim upon which relief can be
granted. Defendants also argue that La. R.S. § 18:1463(C)(2)(c) is an unconstitutional
prior restraint on free speech. The Attorney General of the State of Louisiana has
also submitted an Amicus Curiae brief, asserting that the claims at issue in this case
are moot and that this Court should therefore avoid considering the constitutionality
of the statute at issue.
LEGAL STANDARD

In deciding a motion to dismiss for lack of subject matter jurisdiction under
Federal Rule of Civil Procedure 12(b)(1), “the district court is ‘free to weigh the
evidence and resolve factual disputes in order to satisfy itself that it has the power to
hear the case.’” Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005). The
party asserting jurisdiction must carry the burden of proof for a Rule 12(b)(1) motion
to dismiss. Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762 (5th Cir.

2011). The standard of review for a motion to dismiss under Rule 12(b)(1) is the same
as that for a motion to dismiss pursuant to Rule 12(b)(6). United States v. City of New
Orleans, No. 02-3618, 2003 WL 22208578, at *1 (E.D. La. Sept. 19, 2003). If a court
lacks subject matter jurisdiction, it should dismiss without prejudice. In re Great
Lakes Dredge & Dock Co., 624 F.3d 201, 209 (5th Cir. 2010). When “a Rule 12(b)(1)
motion is filed in conjunction with other Rule 12 motions, the court should consider
the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits.”

Id. (internal quotation marks and citation omitted).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead sufficient
facts to “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A claim is facially plausible when the plaintiff pleads facts that allow the court to
“draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. The factual allegations in the complaint “must be enough to raise a right
to relief above the speculative level.” Twombly, 550 U.S. at 555. “[D]etailed factual
allegations” are not required, but the pleading must present “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678.
The court must accept all well-pleaded facts as true and must draw all reasonable
inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232
(5th Cir. 2009). However, “‘conclusory allegations or legal conclusions masquerading
as factual conclusions will not suffice to prevent a motion to dismiss.’” Beavers v.
Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (citation omitted).

Rule 12(b)(2) of the Federal Rules of Civil Procedure permits dismissal of a suit
for lack of personal jurisdiction. Where a defendant challenges personal jurisdiction,
the party seeking to invoke the power of the court bears the burden of proving that
jurisdiction exists. Luv N’ Care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 469 (5th Cir.
2006). The plaintiff need not, however, establish jurisdiction by a preponderance of
the evidence; a prima facie showing suffices. Id. The court must accept the plaintiff’s
uncontroverted allegations, and resolve all conflicts between the facts contained in

the parties’ affidavits and other documentation in favor of jurisdiction. Id.
A federal court sitting in diversity must satisfy two requirements to exercise
personal jurisdiction over a nonresident defendant. Pervasive Software Inc. v.
Lexware GmbH & Co. Kg, 688 F.3d 214, 220 (5th Cir. 2012). First, the forum state’s
long-arm statute must confer personal jurisdiction. Second, the exercise of
jurisdiction must not exceed the boundaries of the Due Process Clause of the
Fourteenth Amendment. Id. (citing Mink v. AAAA Dev. LLC, 190 F.3d 333, 335 (5th
Cir. 1999)). The limits of the Louisiana long-arm statute are coextensive with
constitutional due process limits. Jackson v. Tanfoglio Giuseppe, SRL, 615 F.3d 579,

584 (5th Cir. 2010) (citing Walk Haydel & Assocs. v. Coastal Power Prod. Co., 517
F.3d 235, 242-43 (5th Cir. 2008)). Therefore, the inquiry is whether jurisdiction
comports with federal constitutional guarantees. Id.
The Due Process Clause of the Fourteenth Amendment guarantees that no
federal court may assume jurisdiction in personam of a non-resident defendant unless
the defendant has certain “minimum contacts” with the forum state such that the

maintenance of the suit does not offend traditional notions of fair play and substantial
justice. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Sufficient minimum
contacts will give rise to either specific, “case-linked” jurisdiction or general, “all-
purpose” jurisdiction. Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct.
2846, 2851 (2011).
Specific jurisdiction is confined to adjudication of “issues deriving from, or
connected with, the very controversy that establishes jurisdiction.” Id. In order to

establish specific jurisdiction, a plaintiff must show that “(1) there are sufficient (i.e.,
not ‘random fortuitous or attenuated’) pre-litigation connections between the non-
resident defendant and the forum; (2) the connection has been purposefully
established by the defendant; and (3) the plaintiff’s cause of action arises out of or is
related to the defendant's forum contacts.” Pervasive Software, 688 F.3d at 221;
accord Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76 (1985). The defendant
can then defeat the exercise of specific jurisdiction by showing that it would be
unreasonable. Burger King, 471 U.S. at 476-77; Pervasive Software, 688 F.3d at 221-
22.

General jurisdiction, on the other hand, does not require a showing of contacts
out of which the cause of action arose. Goodyear, 131 S. Ct. at 2851. A court may
assert general jurisdiction over foreign defendants “to hear any and all claims against
them.” Id. The proper consideration when determining general jurisdiction is
whether the defendant’s “affiliations with the State are so ‘continuous and systematic’
as to render [it] essentially at home in the forum State.” Daimler AG v. Bauman, 134

S. Ct. 746, 761 (2014) (alteration in original) (quoting Goodyear, 131 S. Ct. at 2851).
Only a limited set of affiliations with a forum will render a defendant amenable to
general jurisdiction there. Id. at 760. “For an individual, the paradigm forum for the
exercise of general jurisdiction is the individual’s domicile; for a corporation, it is an
equivalent place, one in which the corporation is fairly regarded as at home.” Id.
(quoting Goodyear, 131 S. Ct. at 2853-54). With respect to a corporation, “the place of
incorporation and principal place of business” are paradigm bases for general

jurisdiction. Id. General jurisdiction does not exist simply because of “the magnitude
of the defendant’s in-state contacts.” Id. at 762 n.20. Rather, a court must appraise
the defendant’s activities “in their entirety, nationwide and worldwide.” Id. See Long
v. Patton Hosp. Mgmt., LLC, No. 15-2213, 2016 WL 760780 (E.D. La. Feb. 26, 2016).
DISCUSSION
Defendants have filed a 12(b)(1) motion in conjunction with other Rule 12 motions.
Therefore, the Court will consider this jurisdictional challenge before considering any

other attack on the merits.
I. SUBJECT MATTER JURISDICTION
Defendants argue that this matter should be dismissed for lack of subject matter
jurisdiction because “there exists no actual controversy and Plaintiff’s claims are
moot.” (Rec. Doc. 21, at 4). Plaintiff’s claims rest on Louisiana Revised Statute §
18:1463(D) which provides that “An affected candidate or voter shall be entitled to an

injunction to restrain future violations” of the use of knowingly false or reckless
speech. Defendants assert that Governor Landry, the subject of the challenged
advertisements, won the election October 14, 2023 and that the ad at issue is likewise
no longer appearing on television. Therefore, Defendants assert that there is no
longer a case or controversy for this Court to consider.
“A controversy becomes moot where, as a result of intervening circumstances,
there are no longer adverse parties with sufficient interests to maintain the

litigation.” Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1153 (5th Cir.
1993). Mootness my arise either “when the issues presented are no longer ‘live’” or
when “the parties lack a legally cognizable interest in the outcome.” Powell v.
McCormack, 395 U.S. 486, 496 (1969). However, “[a] case is not moot so long as any
claim for relief remains viable, whether that claim was the primary or secondary
relief originally sought.” Commonwealth Oil & Refining Co. v. E.P.A. (In re
Commonwealth Oil Refining Co.), 805 F.2d 1175, 1181 (5th Cir. 1986).
In support of their argument for mootness, Defendants cite Kocher v. Truth in

Politics, Inc., 307 So.3d 182 (La. 2020). In Kocher, the Louisiana Supreme Court
considered a claim under § 18:1463 based on an allegedly false advertisement that
ran during the 2019 gubernatorial election. The court held that because an injunction
was already issued against the ad during the pendency of the suit, the matter was
moot. Id. at 183. Additionally, the court addressed plaintiff’s argument that the
governor could run again in the future and be subjected to the same false ads, stating

that “it is well settled that courts should not decide abstract, hypothetical or moot
controversies, or render advisory opinions with respect to such controversies.” Id. at
184 (internal quotation omitted). The court found that “because the injunctive relief
sought has been rendered moot and the only remaining remedy under the statute
(attorneys fees) is conditioned upon the success of a now unavailable remedy
(permanent injunction), the lower courts erred in denying the exception of no cause
of action.” Id.

Plaintiff attempts to distinguish this case, arguing Kocher is inapplicable.
Plaintiff reasons that the defendants in Kocher complied with the TRO issued while
the Defendants in this matter allegedly “continued violating La. R.S. 18:1463 even
after notice of the Temporary Restraining Order.” (Rec. Doc. 26, at 4). This, Plaintiff
suggests, demonstrates that the conduct at issue, namely the running of a false ad,
is likely to recur given that Governor Landry will likely run for public office again
and that “the [TRO], standing alone, was not sufficient to deter Defendant’s conduct.”
Id.
Plaintiff also argues that this continued violation gave rise to a separate claim

for attorney’s fees, costs, and damages under La. Code Civ. P. art. 3611 and La. R.S.
§ 13:4611, neither of which were at issue in Kocher. Plaintiff asserts that these
statues are substantive rather than procedural and should govern in this case. (Rec.
Doc. 26, at 4). Plaintiff reasons that “if . . . [a] civil contempt proceeding is
compensatory in nature, the termination of the underlying action out of which the
contempt hearing arose does not moot the contempt proceeding.” Petroleos Mexicanos

v. Crawford Enterprises, Inc., 826 F.2d 392, 400 (5th Cir. 1987). Therefore, Plaintiff
argues that even if her request for a preliminary injunction was moot, her claims for
attorney’s fees, costs, and damages would not be.
Plaintiff does not attempt cite any support for her assertion that. art. 3611 and
§ 13:4611 are substantive rather than procedural statutes. “Contempt orders are
designed to vindicate the authority and dignity of a court. Accordingly, it would be an
unwise policy for one court to determine whether a litigant violated another court’s

order.” In re Wright, No. 06-356, 2006 WL 508050 *3 (E.D. La. Feb. 22, 2006). This
rings especially true for courts in different judicial systems like the Eastern District
of Louisiana and the 22nd Judicial District Court for the Parish of St. Tammany. “To
permit otherwise would implicate federalism and comity issues and impinge on the
dignity afforded state court judicial systems.” Id. (citing Judice v. Vail, 430 U.S. 327,
335 (1977). Beyond these compelling policy reasons, Plaintiff also does not address
how her claims for contempt might satisfy the amount in controversy requirement
when § 13:4611 caps the fine for contempt based on a violation of a restraining order
at $1000. § 13:4611(1)(b). Nor does she attempt to explain how she might be entitled
to attorney’s fees and costs when the statute from which her claim arises only allows
a Plaintiff to recover these once granted a permanent injunction. See § 18:1463(D)(2).
Plaintiff does not have a live claim for an injunction under § 18:1463, nor can
this Court hear a claim for contempt for any alleged violation of the TRO issued by
the state court. Because this matter has been resolved on Defendants’ 12(b)(1)
argument, this Court has no need to evaluate the 12(b)(6) or 12(b)(2) arguments
before it. Accordingly, it is hereby ordered that the above-captioned matter is
DISMISSED for lack of subject matter jurisdiction.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss
(Rec. Doc. 21) is GRANTED, and Fairbanks’s Motion to Dismiss (Rec. Doc. 22) is
DENIED as moot.

New Orleans, Louisiana, this 13th day of June, 2024.
ly KY
SAKA
CARL J. BAR ing VY
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10190923. Public record. Not legal advice.