The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
J. CORY CORDOVA CASE NO. 6:19-CV-1027
VERSUS JUDGE JAMES D. CAIN, JR.
LSU AGRICULTURAL & MAGISTRATE JUDGE HANNA
MECHANICAL COLLEGE BOARD
OF SUPERVISORS, ET AL.
MEMORANDUM RULING
Before the court is a Motion to Dismiss [docs. 7, 22] filed by defendants Louisiana
State University Agricultural and Mechanical College Board of Supervisors (“LSU Board
of Supervisors”), Dr. Karen Curry, Dr. Nicholas Sells, and Kristi Anderson under Federal
Rules of Civil Procedure 12(b)(4), 12(b)(5), and 12(b)(6).
I.
BACKGROUND
This suit arises from the termination of plaintiff Dr. J. Cory Cordova from his
Internal Medicine residency/“house officer” program at the University Hospital and Clinics
(“UHC”) at Lafayette General Hospital in Lafayette, Louisiana. The house officer program
at UHC is operated under contract with Louisiana State University Agricultural and
Mechanical College (“LSU”). See doc. 1, att. 2, pp. 2–16 (original complaint); id. at 183–
97 (amended complaint). Cordova filed suit in the 15th Judicial District Court, Lafayette
Parish, Louisiana, on March 29, 2019, against the LSU Board of Supervisors1, UHC
Internal Medicine program director Dr. Karen Curry, UHC Medicine Department
Head/Section Chief Dr. Nicholas Sells, and LSU Director of Graduate Medical Education
Kristi Anderson (collectively, “LSU defendants”); as well as attorney Christopher C.
Johnston and the Gachassin Law Firm (“Gachassin defendants”).2 Id. He alleges, in
relevant part, that the LSU defendants denied him his right to due process under the state
and federal constitutions and committed a breach of contract under state law by dismissing
him from the house officer program. Id. at 192–93. In his prayer for relief he asks for “all
costs, [and] expenses of these proceedings, and attorney’s fees . . . .” Id. at 197.
The LSU defendants removed the case to this court under 28 U.S.C. §§ 1331 &
1343. Doc. 1. They now move to dismiss the claims against them, alleging that (1) LSU
Health Sciences Center (the entity named in the original complaint) is not the proper
defendant; (2) Cordova has not identified the basis of his claim for costs and attorney fees;
and (3) Curry, Sells, and Anderson cannot be held liable on the breach of contract claim
because Cordova did not have a contract with them. Doc. 22, pp. 1–3. They also assert that
Cordova has failed to properly effect service on any of the LSU defendants. Cordova
opposes the motion in all respects. Doc. 25.
1 The LSU Board of Supervisors was named as the “Louisiana State University Health Science Center” in the original
complaint. Doc. 1, att. 2, p. 2. The name was corrected in the amended complaint, filed in the state district court on
July 22, 2019. Id. at 183.
2 Johnston allegedly represented Cordova during disciplinary proceedings without disclosing that he had a conflict of
interest because he and his employer, the Gachassin Law Firm, also represented Lafayette General Medical Center,
Dr. Sells, and academic dean Dr. James Falterman. Doc. 1, att. 2, pp. 194–95.
II.
LAW & APPLICATION
A. Rule 12(b)(6) Motion
1. Law
Rule 12(b)(6) allows for dismissal of a claim when a plaintiff “fail[s] to state a claim
upon which relief can be granted.” When reviewing such a motion, the court should focus
on the complaint and its attachments. Wilson v. Birnberg, 667 F.3d 591, 595 (5th Cir.
2012). The court can also consider matters of which it may take judicial notice, including
matters of public record. Hall v. Hodgkins, 305 Fed. App’x 224, 227 (5th Cir. 2008)
(unpublished) (citing Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017–18 (5th Cir.
1996) and Norris v. Hearst Trust, 500 F.3d 454, 461 n. 9 (5th Cir. 2007)).
Such motions are also reviewed with the court “accepting all well-pleaded facts as
true and viewing those facts in the light most favorable to the plaintiff.” Bustos v. Martini
Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010). However, “the plaintiff must plead enough
facts ‘to state a claim to relief that is plausible on its face.’” In re Katrina Canal Breaches
Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Accordingly, the court’s task is not to evaluate the plaintiff’s likelihood
of success, but instead to determine whether the claim is both legally cognizable and
plausible. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th
Cir. 2010).
2. Application
a. Improper entity
Defendants first assert that claims against “LSU Health Sciences Center,” as the
LSU entity was described in the original complaint, must be dismissed because it is not the
proper defendant and/or lacks the capacity to be sued under Louisiana law. Doc. 22, pp. 1–
2. As they note, the Board of Supervisors of Louisiana State University Agricultural and
Mechanical College (“LSU Board of Supervisors”) is the proper defendant. See Mire v. Bd.
of Supervisors of La. State Univ., 2016 WL 4761561 (E.D. La. Sep. 13, 2016). Cordova
named this entity as the defendant in his first amended complaint, however, and does not
maintain any claims against “LSU Health Sciences Center.” Note 1, supra; see doc. 1, att.
2, p. 183. Accordingly, this claim provides no basis for dismissal.
b. Attorney fees claim
The LSU defendants next move for dismissal of Cordova’s prayer for attorney fees
and costs. Under Louisiana law attorney fees may generally only be recovered in a civil
action under a statutory or contractual provision. E.g., F.D.I.C. v. Barton, 233 F.3d 859,
865 (5th Cir. 2000). In a suit filed under 42 U.S.C. § 1983, however, the court has discretion
to award costs and attorney fees to the prevailing party. See 42 U.S.C. § 1988(b). 42 U.S.C.
§ 1983 provides a damages remedy for a constitutional violation committed by a person
acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Due process
violations like the kind alleged by Cordova are cognizable under § 1983. See, e.g.,
McMullen v. Starkville Oktibbeha Consol. Sch. Dist., 200 F.Supp.3d 649 (N.D. Miss.
2016). The LSU defendants fail to show that they are not state actors or acting under color
of state law for the purposes of this claim. Accordingly, there is no basis for dismissing the
prayer for attorney fees against them.
c. Lack of contract with individual defendants
Finally, the LSU defendants maintain that the breach of contract claims must be
dismissed as to the individual defendants because Cordova did not contract with them. The
House Officer Agreement is referenced in the complaint and attached to the LSU
defendants’ motion. See doc. 7, att. 2. It provides that it is an agreement between Cordova
and the LSU Board of Supervisors, as represented by department head Sells and program
director Curry. Id. at 1. It also provides that the agreement is not valid until executed by
the house officer, the program director, the department head, and the associate dean for
academic affairs. Id. at 7.
Under Louisiana law a mandatary (agent) who contracts in the name of a principal
and within the limits of his authority is shielded from personal liability. La. C.C. art. 3016;
see, e.g., Iberia Credit Bur., Inc. v. Cingular Wireless, LLC, 2002 WL 35636338 (W.D.
La. Jun. 28, 2002). The mandatary is only personally liable to a third party with whom he
contracts if he exceeds his authority under the mandate. La. C. C. art. 3019. Here there is
no allegation that Sells or Curry has exceeded his/her authority. Furthermore, Anderson is
not mentioned at all within the terms of the agreement. The motion to dismiss should be
granted as to the breach of contract claims against these defendants, without prejudice to
the claims against Sells and Curry being reinstated if Cordova can amend and show a basis
for their personal liability under Civil Code article 3019.
B. Rule 12(b)(4) & (5) Motion
The LSU defendants next seek dismissal under Rules 12(b)(4) and 12(b)(5),
asserting that Cordova failed to properly effect service on LSU. Under Rule 12(b)(4), a
party may seek dismissal on the grounds that the process is inadequate. Under Rule
12(b)(5), a defendant may assert insufficient service of that process as a defense to a claim
for relief. The plaintiff bears the burden of showing valid process or sufficient service.
Coleman v. Bank of New York Mellon, 969 F.Supp.2d 736, 744 (N.D. Tex. 2013); Holly v.
Metro. Transit Auth., 213 F. App’x 343 (5th Cir. 2007). Removal to federal court does not
prevent a defendant from challenging the sufficiency of service. See, e.g., In re Katrina
Breaches Litig., 309 F. App’x 833, 835–36 (5th Cir. 2009) (affirming Rule 12(b)(5)
dismissal in removed action).
1. As to individual defendants
The LSU defendants seek dismissal of the claims against the individual defendants
based on allegations that Cordova failed to serve them “by personal delivery, domiciliary
drop-off, or agent delivery” as required under Federal Rule of Civil Procedure 4(e) and
Louisiana Code of Civil Procedure article 1231. Doc. 22, p. 6. The record shows that
personal service was requested on each of these defendants, and that returns were filed by
the Lafayette Parish Sheriff indicating that same was accomplished on April 10, 2019. Doc.
1, att. 2, pp. 111–13.
Defendants maintain that the citations were not personally served. Doc. 22, p. 8. To
this end they present an affidavit from April Citizen, secretary to the dean of academic
affairs at University Hospital and Clinics. Doc. 22, att. 1. Citizen states that she is not an
authorized agent for service, but nonetheless accepted a package from a law enforcement
officer on April 4, 2019, containing the three citations in this matter and addressed to Karen
Curry, Nicholas Sells, and Kristi Anderson. Doc. 7, att. 1, pp. 1–2. She further states that
she delivered the citations and petitions to the defendants and obtained their signatures,
and that the law enforcement officer returned to collect the returns of service when the
defendants were not present. Id. at 2–3.
Under Federal Rule of Civil Procedure 4(e), service on an individual may be made
by “following state law for serving a summons . . . in the state where the district court is
located or where service is made.” Louisiana Code of Civil Procedure article 1232 provides
that “[p]ersonal service is made when a proper officer tenders the citation or other process
to the person to be served.” Service on a secretary or receptionist of the person to be served
does not qualify as personal service under Louisiana law. Roper v. Dailey, 393 So.2d 85
(La. 1980). Accordingly, Ms. Citizen’s acceptance of service and procurement of the
individual defendants’ signatures was insufficient. As Cordova shows, however, the record
also reflects that Anderson, Curry, and Sells were personally served with copies of the
amended complaint. See doc. 1, att. 2, pp. 284–86. Ms. Citizen does not indicate that she
acted as intermediary for service of this petition, and the defendants allege no further
deficiencies in its service.3 Accordingly, the motion to dismiss is denied as to the individual
defendants.
3 The LSU defendants have not challenged service through the amended petition as untimely. To the extent that they
would, however, this court is inclined to cure any defect by retroactively extending the service deadline, plaintiff’s
good cause to believe that service of the original complaint had been valid. E.g., Bradley v. Amer. Elec. Power, 2019
WL 4166521 (E.D. Tex. Sep. 3, 2019) (describing court’s power to cure untimely service under Rule 4(m)).
2. As to LSU Board of Supervisors
The LSU Board of Supervisors also moves for dismissal, asserting that it was not
properly served and that the process was insufficient. Specifically, they argue that the
process for the original petition named the wrong entity and that the petitions were not
served on all parties required under Louisiana law. As noted above, plaintiff named a non-
juridical entity in the original petition but corrected his error through the amended petition.
Accordingly, any defect in the process was cured through the amendment and there is no
basis for granting the 12(b)(4) motion.
Under Rule 4, a state or state-created governmental organization must be served
through its chief executive officer or by serving the summons and the complaint in the
manner prescribed by state law. Fed. R. Civ. P. 4(j)(2). Louisiana law provides that, when
the state or a state agency is named as a defendant, process must be served on the head of
the department concerned as well as the Office of Risk Management and the Attorney
General, as well as any others required under Louisiana Revised Statute § 13:5107. La.
Rev. Stat. § 39:1538(D); see, e.g., Norbert v. La. Med. Ctr., 2006 WL 8434948, at *1 (W.D.
La. 2006).
The plaintiff first named the LSU Board of Supervisors as a defendant in his
amended petition and requested service on that entity through (1) the Office of Risk
Management, (2) the Attorney General, and (3) the “Heads of the Department for the Board
of Supervisors, President F. King Alexander . . . and Chancellor of LSU Health Sciences
Center and Dean of LSU School of Medicine, Dr. Larry Hollier.” Doc. 1, att. 2, p. 198. The
LSU defendants assert that Louisiana law calls for service on the chairman of the Board of
Supervisors, as opposed to the president of the university and the relevant
deans/department heads. Doc. 22, p. 6 n. 9. As plaintiff notes, however, the above-cited
statutes make no such specification. The Board’s bylaws show that the president of the
university also serves as secretary to the Board of Supervisors and that all communications
to the board must be filed in writing with the president and transmitted by the president to
the board.* See LSU BOARD OF SUPERVISORS, BYLAWS, arts. I, VI (Oct. 4, 2018), available
at https://www.lsu.edu/bos/docs/bylaws-adopted-2018-10-04.pdf (last visited October 18,
2019). Accordingly, there is no apparent error in plaintiff's service on the LSU Board of
Supervisors and the motion should likewise be denied as to this defendant.
III.
CONCLUSION
For the reasons stated above, the Motion to Dismiss under Rule 12(b)(6) will be
granted in part and denied in part as described above, Meanwhile, the Motion to Dismiss
under Rules 12(b)(4) and 12(b)(5) will be denied.
THUS DONE AND SIGNED in Chambers on this 24" day of October, 2019.
JAMES D. CAIN, JR.
UNITED STATES DISTRICT JUDGE
“Tn their reply the LSU defendants rely on a footnote in which a Louisiana court of appeal asserted that the chairman
of the LSU Board of Supervisors was the proper “agent for service of process for [LSU Health Sciences Center] . . .
.” Hunter v. LSU Agr. & Mech. Coll., 77 So.3d 264, 268 n. 2 (La. Ct. App. 4th Cir. 2011). This is insufficient to show
that service on the board’s president was improper as to the board itself.
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