Labranche v. Louisiana Department of Justice

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

JAMIE LABRANCHE CIVIL ACTION NO.

VERSUS 21-146-SDD-EWD

THE LOUISIANA DEPARTMENT

OF JUSTICE

NOTICE AND ORDER

Before the Court is the Petition for Writ of Mandamus Pursuant to Public Records Laws

(“Complaint”)1 and Motion to File Notice of Evidence (“Motion”),2 filed pro se by Jamie

Labranche (“Plaintiff”).3 In the Complaint, Plaintiff seeks a writ of mandamus directing Louisiana

Attorney General Jeff Landry (“Landry”) of the Louisiana Department of Justice (“DOJ”) to

produce certain records requested by Plaintiff pursuant to Louisiana’s Public Records Act

(“PRA”), La. R.S. 44:33, et seq.;4 Article XII, Section 3 of the Louisiana Constitution of 1974;5

unspecified “Federal Accountability (GAO) Law;” and “other applicable law cited herein.”6

Because it is not clear that this Court has federal subject matter jurisdiction over the claims asserted

for the reasons explained more fully below, Plaintiff shall be ordered to filed an amended

complaint in accordance with this Order. Alternatively, Plaintiff may voluntarily dismiss the case.

1 R. Doc. 1.

2 R. Doc. 5.

3 Plaintiff sought to proceed in forma pauperis (“IFP”), but his application was initially denied because his Short Form

Application did not contain sufficient information for the Court to determine whether Plaintiff could pay the filing

fee. Plaintiff was ordered to either submit the Long Form Application or pay the Court’s $402 filing fee. R. Docs. 2-

3. Plaintiff elected to pay the filing fee.

4 The Complaint is written entirely in capital letters but citations to Plaintiff’s quotations will be in normal sentence

case for the sake of readability. La. R.S. 44:33 provides: “A. Providing access to public records is a responsibility

and duty of the appointive or elective office of a custodian and his employees. B. (1) Except as otherwise provided

in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter,

any person of the age of majority may inspect, copy, or reproduce any public record. (2) Except as otherwise provided

in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter,

any person may obtain a copy or reproduction of any public record. (3) The burden of proving that a public record is

not subject to inspection, copying, or reproduction shall rest with the custodian.”

5 “No person shall be denied the right to observe the deliberations of public bodies and examine public documents,

I. Background

Plaintiff seeks production of “public records in state possession, accounting for every dollar

of 67 million plus dollars received from federal government” and “copys [sic] of all transactions

related to this 67 million and any money you may be keeping in escrow. Down to the nearest

dollar.”7 Despite this cryptic description of the records requested, news articles attached to

Plaintiff’s Complaint shed further light on the documents that Plaintiff is requesting. According

to the news articles, in February 9, 2012, the federal government and forty-nine state attorneys

general reached a $25 billion agreement with the nation’s five largest mortgage servicers “to

address mortgage loan servicing and foreclosure abuses” (the “settlement”). Reportedly, “The

agreement provides substantial financial relief to homeowners and establishes significant new

homeowner protections for the future” and “requires [mortgage services] to commit more than $20

billion towards financial relief for consumers.”8 The news article reports that the terms of the

settlement required $20 billion in financial relief for borrowers, and also required the servicers to

pay $5 billion in cash to the federal and state governments, $1.5 billion of which was to be used to

establish a borrower payment fund to provide cash payments to borrowers whose homes were sold

or taken in foreclosure between January 1, 2008 and December 31, 2011.9 Other articles attached

to Plaintiff’s Motion reference that California received $410 million in the settlement, and Texas

received $124 million in the settlement; however, legal and/or legislative action was ultimately

attempted and/or taken against both states for misappropriation of the funds, as it was alleged that

the states failed to disburse the money to homeowners, but rather deposited the money into their

respective state general funds.10 Construing Plaintiff’s claims, and the substance of his PRA

7 R. Doc. 1, pp. 1-2, 5.

8 R. Doc. 1-1, p. 1.

9 R. Doc. 1-1, p. 2.

10 R. Doc. 5-1. Plaintiff filed only the first pages of these articles; however, the entire articles were found by the Court

online.

requests, against this backdrop, it appears that Plaintiff seeks a writ compelling Landry to produce

the documents that reflect an accounting of Louisiana’s portion of the settlement, which Plaintiff

contends amounted to more than $67 million dollars, including an accounting of where the funds

were directed and where they are currently are held. While Plaintiff asserts that the settlement

proceeds were “designed to help people like me,” Plaintiff has not specifically raised a claim to

the funds in his Complaint.11

The record reflects that Plaintiff submitted two PRA requests, one on January 8, 2019 and

another on February 24, 2021. Both times, Plaintiff was advised in response that there were no

documents responsive to his requests.12 In his Complaint, Plaintiff additionally claims that he was

denied these records in 2014 by former Louisiana Attorney General James D. Caldwell.13 Plaintiff

contends that he needs the requested records to “close [his] civil case,” which is a foreclosure case

that Plaintiff has been litigating in the Fortieth Judicial District Court for the last fourteen years.

Plaintiff also makes vague and unclear allegations that suggest that former Attorney General

representatives allegedly colluded and/or used evidence and information obtained from that office

against Plaintiff in order to defeat his claims to the funds and/or against him in his foreclosure

case.14 In support of his PRA request, Plaintiff argues that “the publics (sic) right of access to

public records is a fundamental right guaranteed by the constitution,” citing Louisiana state court

jurisprudence,15 and the failure of Landry to produce the records “will violate [Plaintiff’s] civil

rights life, liberty and * property lost.”16

11 R. Doc. 1, p. 2; R. Doc. 1-1, pp. 7-8. Plaintiff avers that he “did everything Louisiana State AG ask for but yet no

help of the 67 million they received.” R. Doc. 1, p. 2. See also R. Doc. 5, pp. 1-2.

12 R. Doc. 1, p. 3 and R. Doc. 1-1, pp. 7-8.

13 R. Doc. 1, p. 3 and R. Doc. 1-1, p. 6.

14 R. Doc. 1, pp. 2-3. Plaintiff alleges that he met with the Federal Bureau of Investigations regarding these claims.

R. Doc. 1, p. 2 and R. Doc. 1-1, p. 5.

15 R. Doc. 1, p. 4, citing Title Research Corp. v. Rausch, 450 So2d 933, 936 (La. 1984) (“The right of the public to

have access to the public records is a fundamental right, and is guaranteed by the constitution. La. Const. art. 12, §

3.”).

16 R. Doc. 1, pp. 3-5.

Significant for the purpose of the instant Order, Plaintiff argues the following as grounds

for issuance of the writ by this Court: “clearly a writ of mandamus may be directed to a public

officer to compel the performance of a ministerial duty required by law,” specifically relying on

La. C.C.P. art. 3863, which provides that “A writ of mandamus may be directed to a public officer

to compel the performance of a ministerial duty required by law, or to a former officer or his heirs

to compel the delivery of the papers and effects of the office to his successor.”17 Furthermore,

Plaintiff contends, several times, that this Court allegedly has original jurisdiction over this matter

because the underlying funds are comprised of “federal government money with GAO

accountability.”18 Plaintiff also seeks monetary damages, sanctions, and costs for Landry’s

violation of the PRA, and “for F.B.I. to open new case on foul play surrounding the case.”19

II. Law and Analysis

Unlike state district courts, which are courts of general jurisdiction and may therefore hear

all types of claims, federal courts may only entertain those cases over which there is subject matter

jurisdiction. Federal subject matter jurisdiction may generally be established in two ways. This

Court has subject matter jurisdiction over “civil actions arising under the Constitution, laws, or

treatises of the United States,”20 and over civil actions where the amount in controversy exceeds

$75,000.00 exclusive of interest and costs and the parties are completely diverse (i.e., all plaintiffs

are citizens of a different state than all defendants).21 The burden of establishing federal subject

17 R. Doc. 1, pp. 4-5.

18 R. Doc. 1, pp. 2, 4-5.

19 R. Doc. 1, pp. 1, 5.

20 28 U.S.C. § 1331.

21 28 U.S.C. § 1332. Aside from 28 U.S.C. § 1331 and § 1332, which are the most common bases for federal subject

matter jurisdiction, there are also other statutory grants of original jurisdiction that apply to specific types of cases.

matter jurisdiction is on the party asserting it (here, Plaintiff).22 A court may raise on its own at

any time the issue of whether subject matter jurisdiction exists.23

With regard to diversity jurisdiction pursuant to 28 U.S.C. § 1332, Plaintiff has not alleged

his own citizenship,24 or that of the DOJ, or the requisite amount in controversy of $75,000.

However, even if Plaintiff had adequately alleged his own citizenship to be that of Louisiana, he

cannot allege complete diversity against the DOJ, the named defendant, because a state agency is

not a citizen for federal diversity of citizenship purposes.25 Therefore, it does not appear that

Plaintiff has, or can, adequately allege jurisdiction based on diversity of citizenship.

With regard to federal question jurisdiction pursuant to 28 U.S.C. § 1331, Plaintiff must

state a cause of action arising under federal law, which Plaintiff’s Complaint currently fails to do.

Plaintiff’s underlying PRA request is asserted pursuant to Louisiana statutory and constitutional

law, i.e., La. R.S. 44:33 and Article XII, Section 3 of the Louisiana Constitution, and his grounds

for issuance of the writ are likewise premised upon Louisiana law, La. C.C.P. art. 3863. At most,

Plaintiff contends that the settlement money is “federal government money,” but that allegation by

22 Willoughby v. United States ex rel. Dep’t of the Army, 730 F.3d 476, 479 (5th Cir. 2013).

23 McDonal v. Abbott Laboratories, 408 F.3d 177, 182, n. 5 (5th Cir. 2005). See Cephus v. Texas Health & Hum.

Servs. Comm’n, 146 F. Supp. 3d 818, 825 (S.D. Tex. Nov. 19, 2015) (“A court may sua sponte raise a Rule 12(b)(1)

motion to dismiss for lack of subject matter jurisdiction at any time. Westland Oil Development Corp. v. Summit

Transp. Co., 481 F.Supp. 15 (S.D.Tex.1979), aff'd, 614 F.2d 768 (1980). Fed. Rule of Civil Procedure 12(h)(3) states,

“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”. See

Kidd v. Southwest Airlines Co., 891 F.2d 540, 545 (5th Cir.1990)(“[F]ederal courts must address jurisdictional

questions sua sponte when the parties’ briefs do not bring the issue to the court’s attention.”)”).

24 “For diversity purposes, citizenship means domicile; mere residence in the State is not sufficient.” Mas v. Perry,

489 F.2d 1396, 1399 (5th Cir. 1974). Accordingly, to properly plead Plaintiff’s citizenship, Plaintiff must plead

Plaintiff’s domicile.

25 See D & J Invs. of Cenla LLC v. Baker Hughes A GE Co., LLC, No. 1:20-01174, 2020 WL 8225685, at *3 (W.D.

La. Nov. 18, 2020) (“Federal jurisprudence is clear that “a state is not a ‘citizen’ for purposes of diversity jurisdiction.”

Tradigrain, Inc. v. Mississippi State Port Auth., 701 F.2d 1131, 1132 (5th Cir. 1983). It follows that in an action where

a state is a party, § 1332 generally does not provide a basis for subject matter jurisdiction. See Allen v. C & H

Distributors, L.L.C., 813 F.3d 566, 571 (5th Cir. 2015) (“Ordinarily ‘[i]n an action where a state is a party, there can

be no federal jurisdiction on the basis of diversity of citizenship because a state is not a citizen for purposes of diversity

jurisdiction.’ ”). Likewise, an entity that is “merely an alter ego of the state,” such as the DEQ, is not considered

a citizen under § 1332. See Watkins v. Louisiana Dep’t of Transp. & Dev., No. 09-1743, 2010 WL 744911, at *2

(W.D. La. Feb. 26, 2010) (holding that the Louisiana Department of Transportation and Development is “equivalent

to the State of Louisiana for purposes of determining diversity of citizenship.”).”) (emphasis added).

itself does not allege a federal cause of action, and Plaintiff has not provided any legal authority

or argument for why it otherwise would.26

Plaintiff also relies on unspecified “Federal accountability (GAO) laws” and unspecified

civil rights laws in support of jurisdiction, but Plaintiff fails to point to any particularized federal

accountability law or civil rights law that supports jurisdiction in this case. Even construing

Plaintiff’s claims liberally in light of his pro se status, the Court is independently unaware of any

federal accountability law applicable to this case that provides subject matter jurisdiction over the

claims asserted.

Regarding other potentially applicable legal grounds, the Court does not have subject

matter jurisdiction pursuant to 28 U.S.C. §1361, which provides for original jurisdiction “of any

action in the nature of mandamus to compel an officer or employee of the United States or any

agency thereof to perform a duty owed to the plaintiff.” This statute permits issuance of a writ

against an officer or employee of the United States, which clearly does not apply to state actor

Landry or the DOJ.27 The All Writs Act, 28 U.S.C. § 1651, permits the district courts to issue writs

in aid of their jurisdiction and in certain circumstances upon the required showing, but only when

the request for the writ is supported by an independent basis for jurisdiction, which does not appear

to exist for the reasons set forth above.28

26 It is also not entirely clear that the underlying settlement funds allocated to Louisiana are in fact comprised of federal

monies.

27 See Church of Scientology of Georgia, Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328, 1380 (N.D. Ga.

2012) (“Plaintiff’s Complaint also includes a claim for mandamus requesting that the Court order the City to apply

the “church parking standard” to Plaintiff’s property (Count XIII). Federal district courts do not have the authority to

issue writs of mandamus to direct state officials in the performance of their duties. See 28 U.S.C. § 1361; Moye v.

Clerk, DeKalb Superior Court, 474 F.2d 1275, 1276 (5th Cir.1973); Noe v. Metropolitan Atlanta Rapid Transit

Authority, 485 F.Supp. 501, 504 (N.D.Ga. 1980), aff’d 644 F.2d 434 (5th Cir.1981).”)

28 See Brittingham v. U.S. Comm’r, 451 F.2d 315, 317 (5th Cir. 1971) (“Plaintiff brought this action under 28 U.S.C.

§ 1651, which provides, in part, as follows: (a) The Supreme Court and all courts established by Act of Congress may

issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles

of law. It is settled that this section, known as the All Writs Act, by itself, creates no jurisdiction in the district courts.

It empowers them only to issue writs in aid of jurisdiction previously acquired on some other independent ground.

McIntire v. Wood, 7 Cranch 504, 3 L.Ed. 420 (1813); Rosenbaum v. Bauer, 120 U.S. 450, 7 S.Ct. 633, 30 L.Ed. 743

(1887); Covington & C. Bridge Co. v. Hager, 203 U.S. 109, 27 S.Ct. 24, 51 L.Ed. 111 (1906); Hurt v. Cotton States

The articles attached to Plaintiff’s Motion refer to legal actions decided by the state courts

in California and Texas. The legal basis for the California litigation is unclear, but the July 2019

article reports that the litigation has reached finality, as the California Supreme Court is reported

to have declined review of the ruling of the state appellate court holding that the settlement money

must be repaid.29 The November 2015 article regarding the Texas litigation does not indicate the

forum for the litigation, or the specific legal basis for the lawsuit, aside from referring to a “federal

whistleblower complaint” that “accuses the state of Texas of the “illegal diversion” of the state’s

share of the settlement funds.”30 It is also not clear if that litigation was permitted to proceed and

if so, whether it has reached finality. As it stands, Plaintiff has not asserted a cause of action for

any type of federal whistleblower action, including one under the False Claims Act, 31 U.S.C. §§

3729 – 3733, nor has he satisfied the substantive requirements of the FCA.31 Significantly, even

if Plaintiff had, the State is not subject to suit under the FCA, and/or such a claim would be barred

by the State’s Eleventh Amendment sovereign immunity,32 particularly because there has been no

Fertilizer Co., 159 F.2d 52 (5th Cir. 1947), cert. den., 331 U.S. 828, 67 S.Ct. 1351, 91 L.Ed. 1843; Haggard v.

Tennessee, 421 F.2d 1384 (6th Cir. 1970).”)

29 R. Doc. 5-1 and https://www.wfaa.com/article/news/local/investigates/texas-mortgage-settlement-millions-

misspent-critics-say/287-23762448.

30 R. Doc. 5-1 and https://www.latimes.com/california/story/2019-07-19/california-331-million-mortgage-settlement-

state-budget-lawsuit.

31 31 U.S.C. § 3730 provides, in pertinent part: “(b) Actions by private persons.--(1) A person may bring a civil action

for a violation of section 3729 for the person and for the United States Government. The action shall be brought in the

name of the Government. The action may be dismissed only if the court and the Attorney General give written consent

to the dismissal and their reasons for consenting. (2) A copy of the complaint and written disclosure of substantially

all material evidence and information the person possesses shall be served on the Government pursuant to Rule 4(d)(4)

of the Federal Rules of Civil Procedure. The complaint shall be filed in camera, shall remain under seal for at least

60 days, and shall not be served on the defendant until the court so orders. The Government may elect to intervene

and proceed with the action within 60 days after it receives both the complaint and the material evidence and

information.”

32 Ogrey v. Texas, 207 F. App’x 383, 386 (5th Cir. 2006) (“Nonetheless, the district court cannot sanction a party by

exercising jurisdiction where it is lacking. Considering that sovereign immunity is similar to a subject matter

jurisdiction bar, the district court should have considered the sovereign immunity issue and reached a conclusion, even

if technically improperly presented. The court could have considered the issue had it gone entirely unraised. See Perez

v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 333 n. 8 (5th Cir.2002) (“[W]e may consider this [sovereign immunity]

issue sua sponte because it bears on this court's subject matter jurisdiction.”). In either case we can consider it here,

intervention herein by the federal government.33 Finally, Plaintiff’s request for an investigation by

the FBI is improperly raised here.34 Plaintiff must seek relief directly from the FBI or the U.S.

Attorney’s office relating to allegations of criminal conduct. In any case, Plaintiff’s Complaint

does not currently assert a federal civil claim giving rise to federal subject matter jurisdiction under

28 U.S.C. § 1331.

In light of Plaintiff’s pro se status, Plaintiff shall be given the opportunity to amend his

Complaint pursuant to Fed. R. Civ. P. 15 to attempt to assert a basis for subject matter jurisdiction.

Plaintiff shall be given thirty days to file a comprehensive, amended Complaint, that sets forth all

of Plaintiff’s allegations, as revised, supplemented, and/or amended, and that fully complies with

the requirements of the Federal Rules of Civil Procedure and the Local Rules of this Court

regarding the form and content of federal pleadings,35 which adequately alleges a cause of action

arising under federal law. While the current Motion to file evidence shall be granted because the

articles submitted therewith were considered, no further extrinsic evidence shall be filed with or

following the Amended Complaint as the docket is not a repository for evidence at this juncture

of the case.

as “[t]he Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be

raised in the trial court.” Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).”).

33 See United States v. Texas Tech Univ., 171 F.3d 279, 294 (5th Cir. 1999) (“In sum, we hold that when the United

States has not actively intervened in the action, the Eleventh Amendment bars qui tam plaintiffs from instituting suits

against the sovereign states in federal court.”); U.S. ex rel. King v. Univ. of Texas Health Sci. Ctr.-Houston, 544 F.

App’x 490, 498 (5th Cir. 2013) (holding that “[University of Texas Health Science Center–Houston] is an arm of the

state and that Stevens applies. UTHSCH is not a “person” under the FCA, and is not subject to qui tam liability.”); and

Vermont Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 787–88, 120 S. Ct. 1858, 1871, 146 L. Ed. 2d 836

(2000) (“We hold that a private individual has standing to bring suit in federal court on behalf of the United States

under the False Claims Act, 31 U.S.C. §§ 3729–3733, but that the False Claims Act does not subject a State (or state

agency) to liability in such actions.” Id. at 787.

34 Further, a plaintiff does not generally have a private cause of action under a federal criminal statute. Gill v. State

of Texas, 153 Fed.Appx. 261, 262-63 (5th Cir. 2005)(“[D]ecisions whether to prosecute or file criminal charges are

generally within the prosecutor’s discretion, and, as a private citizen, Gill has no standing to institute a federal criminal

prosecution and no power to enforce a criminal statute …. Therefore, the district court did not abuse its discretion

when it dismissed these claims as legally frivolous.”) (citations omitted).

35 See Fed. R. Civ. P. 8, 10-11, which are available online and likely at public libraries, and Local Rules 5, 7, 10, and

11, which may be found on the Court’s website at https://www.lamd.uscourts.gov/court-info/local-rules-and-orders

(“Middle District of Louisiana--Local Rules”).

In lieu of amending, Plaintiff may voluntarily dismiss his Complaint by filing a Notice of

Voluntary Dismissal pursuant to Fed. R. Civ. P. 41(a)(1)(A), which should simply state that

Plaintiff desires to voluntarily dismiss his Complaint, and which would result in the dismissal of

Plaintiff’s Complaint without prejudice.36

Accordingly,

IT IS ORDERED that the Motion to File Notice of Evidence (“Motion”),37 filed by

Plaintiff Jamie Labranche is GRANTED. The Clerk of Court is directed to docket the additional

evidence at R. Doc. 5-1. However, no further extrinsic evidence shall be filed with or following

the Amended Complaint described below.

IT IS FURTHER ORDERED that in light of Plaintiff’s pro se status, Plaintiff shall be

given the opportunity to amend his Complaint pursuant to Fed. R. Civ. P. 15 to attempt to assert

a basis for federal subject matter jurisdiction. Plaintiff is given thirty days, or until May 3, 2021,

to file a comprehensive, amended Complaint, that sets forth all of Plaintiff’s allegations, as revised,

supplemented, and/or amended, and that fully complies with the requirements of the Federal Rules

of Civil Procedure and the Local Rules of this Court regarding the form and content of federal

pleadings, which adequately alleges a cause of action arising under federal law. Alternatively,

Plaintiff may voluntarily dismiss his Complaint by filing a Notice of Voluntary Dismissal pursuant

to Fed. R. Civ. P. 41(a)(1)(A), as explained above.

IT IS FURTHER ORDERED that the Clerk of Court shall serve this Ruling and Order

on Plaintiff Jamie LaBranche, via regular and certified mail, return receipt requested at the address

listed on PACER.

36 A dismissal without prejudice may permit Plaintiff to pursue his claims in another venue, including the Louisiana

state courts of general jurisdiction, although no opinion is given as to the legitimacy or viability of Plaintiff’s claims

in such other courts.

37 R. Doc. 5.

Failure to respond as ordered may result in a recommendation of dismissal of

Plaintiff’s claims in this matter without further notice.

Signed in Baton Rouge, Louisiana, on March 31, 2021.

ERIN WILDER-DOOMES

UNITED STATES MAGISTRATE JUDGE

10