Brown v. PAC Housing Group, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

EVA BROWN CIVIL ACTION

VERSUS NO. 24-923

PAC HOUSING GROUP, LLC, et al. SECTION M (4)

ORDER & REASONS

Before the Court is the motion of defendants PAC Housing Group, LLC (“PAC”), MOF-

Preservation of Affordability Corp., MOF-Willows, LLC, Ministry Outreach Foundation

(“MOF”), and Dr. Richard Hamlet (collectively, “Defendants”) to dismiss the third amended

complaint of plaintiff Eva Brown for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6).1 Brown responds in opposition,2 and Defendants reply in further support of their

motion.3 Also before the Court is the motion of defendant Dr. Richard Hamlet to dismiss the

claims asserted against him in the third amended complaint for failure to state a claim under Rule

12(b)(6).4 Brown also opposes Hamlet’s motion.5 Having considered the parties’ memoranda, the

record, and the applicable law, the Court denies both motions.

I. BACKGROUND

This case arises from the alleged shooting death of Brown’s son, S.A.S., on the premises

of the Willows Apartments (“the Willows”), an apartment complex allegedly owned, operated,

and managed by Defendants.6 Brown asserts wrongful death and survival claims under articles

1 R. Doc. 25.

2 R. Doc. 26.

3 R. Doc. 28.

4 R. Doc. 24.

5 R. Doc. 27.

6 R. Doc. 11 at 5, 9.

2315 and 2317 of the Louisiana Civil Code, alleging that Defendants were negligent in failing to

address a pattern of criminal activity at the Willows, directly resulting in S.A.S.’s death.7 Brown

initially filed suit in state court. She amended the complaint twice8 before Defendants removed

the action to this Court based on diversity jurisdiction.9 Defendants then filed their first motion to

dismiss under Rule 12(b)(6).10 Brown responded by filing, without leave of court, a third amended

complaint which named an additional, nondiverse defendant, Candren Lemieux, the property

manager of the Willows.11 As a result of the amended filing, the Court dismissed the Defendants’

first 12(b)(6) motion as moot.12 Defendants next moved to strike the third amended complaint or,

alternatively, only the parts adding Lemieux.13 Brown responded by seeking leave to file the third

amended complaint.14 The Court declined to strike the amended complaint in its entirety and

granted in part Brown’s motion for leave to amend.15 However, after performing a Hensgens

analysis, the Court struck the parts of the amended complaint adding Lemieux, finding (among

other factors) that the additional “allegations relate[d] only to Lemieux’s performance of general

administrative duties and therefore [did] not provide a basis for finding personal liability” as an

individual employee under Koehring, thus “suggesting to the Court that the purpose of the

amendment [was] to defeat diversity jurisdiction.”16 Now, Defendants collectively, and defendant

Richard Hamlet individually, again seek dismissal under Rule 12(b)(6).17

7 Id. at 8, 10-11.

8 R. Docs. 1-2; 1-4.

9 R. Doc. 1.

10 R. Doc. 8.

11 R. Doc. 11.

12 R. Doc. 14.

13 R. Doc. 17.

14 R. Doc. 18.

15 R. Doc. 23.

16 Id. at 9-11 (quotation at 11).

17 R. Docs. 24; 25.

II. PENDING MOTION

In their motion to dismiss, Defendants contend that the third amended complaint asserts

legal conclusions rather than factual allegations.18 In particular, Defendants contend that Brown

has failed to plead specific facts to establish that Defendants owed or assumed a duty to protect

S.A.S. from the criminal actions of third parties.19 Brown, in opposition, contends that she

sufficiently pleaded specific allegations stating a legally cognizable claim that Defendants, as

owners of the premises, owed a duty to S.A.S., an invitee, arising out of their knowledge of the

dangerous conditions at the Willows and assumed the duty to provide security, and that Defendants

breached these duties by failing to mitigate the risks known to them and provide adequate

security.20 In reply, Defendants again contend that the complaint fails to state a claim upon which

relief can be granted because it lacks sufficient specific factual allegations to show that Defendants

owed any duty to S.A.S.21

Hamlet’s motion to dismiss22 relies on the Court’s Hensgens analysis in its order23 striking

Brown’s claims pertaining to Candren Lemieux, the property manager of the Willows, from the

third amended complaint. Hamlet argues that, because the allegations against Hamlet “virtually

mirror the allegations made against Mr. Lemieux [and] the Court found [that Brown] failed to state

a cognizable claim against Mr. Lemieux,” the claims against Hamlet should likewise be

dismissed.24 In opposition, Brown points out that the complaint alleges that Hamlet “personally

18 R. Doc. 25-2.

19 Id.

20 R. Doc. 26.

21 R. Doc. 28.

22 R. Doc. 24-2.

23 R. Doc. 23.

24 R. Doc. 24-2 at 4.

owned the property where the incident occurred and operated it as a real estate business by leasing

it to tenants.”25

III. LAW & ANALYSIS

A. Rule 12(b)(6) Standard

The Federal Rules of Civil Procedure require a complaint to contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule

8 “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The statement of the claim must

“‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’”

Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A pleading does

not comply with Rule 8 if it offers “labels and conclusions,” “a formulaic recitation of the elements

of a cause of action,” or “‘naked assertions’ devoid of ‘further factual enhancement.’” Iqbal, 556

U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557) (alteration omitted).

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a party to move to dismiss

for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “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.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 570). A claim is plausible on the face of the complaint “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Plausibility does not equate

to probability, but rather “it asks for more than a sheer possibility that a defendant has acted

25 R. Doc. 27 at 1.

unlawfully.” Id. (citing Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are

‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and

plausibility of “entitlement to relief.”’” Id. (quoting Twombly, 550 U.S. at 557). Thus, if the facts

pleaded in the complaint “do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged – but it has not ‘shown’ – ‘that the pleader is entitled to

relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (alteration omitted).

In considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court employs

the two-pronged approach utilized in Twombly. The court “can choose to begin by identifying

pleadings that, because they are no more than conclusions [unsupported by factual allegations],

are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. However, “[w]hen there are

well-pleaded factual allegations, a court should assume their veracity and then determine whether

they plausibly give rise to an entitlement to relief.” Id. “[The] task, then, is to determine whether

the plaintiff has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff’s

likelihood of success.” Body by Cook, Inc. v. State Farm Mut. Auto. Ins., 869 F.3d 381, 385 (5th

Cir. 2017) (quoting Doe ex rel. Magee v. Covington Cty. Sch. Dist., 675 F.3d 849, 854 (5th Cir.

2012)). Motions to dismiss are disfavored. Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011)

(citing Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)).

A court’s review of a Rule 12(b)(6) motion to dismiss “is limited to the complaint, any

documents attached to the complaint, and any documents attached to the motion to dismiss that

are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v.

Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing Collins v. Morgan Stanley Dean

Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)). A court may also take judicial notice of certain

matters, including public records and government websites. Dorsey v. Portfolio Equities, Inc., 540

F.3d 333, 338 (5th Cir. 2008); see also Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 (5th

Cir. 2005). Thus, in weighing a Rule 12(b)(6) motion, district courts primarily look to the

allegations found in the complaint, but courts may also consider “documents incorporated into the

complaint by reference or integral to the claim, items subject to judicial notice, matters of public

record, orders, items appearing in the record of the case, and exhibits attached to the complaint

whose authenticity is unquestioned.” Meyers v. Textron, Inc., 540 F. App’x 408, 409 (5th Cir.

2013) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).

B. Analysis

“Whether a claim arises in negligence under La. Civ. Code art. 2315 or in premises liability

under La. Civ. Code art. 2317.1, the traditional duty/risk analysis is the same.” Farrell v. Circle

K Stores, Inc., 359 So. 3d 467, 473 (La. 2023). A plaintiff asserting a negligence claim must prove

five separate elements:

(1) the defendant had a duty to conform his conduct to a specific standard (the duty

element); (2) the defendant’s conduct failed to conform to the appropriate standard

(the breach element); (3) the defendant’s substandard conduct was a cause-in-fact

of the plaintiff’s injuries (the cause-in-fact element); (4) the defendant’s

substandard conduct was a legal cause of the plaintiff’s injuries (the scope of duty

element); and, (5) proof of actual damages (the damages element).

Id. at 473 (citing Malta v. Herbert S. Hiller Corp., 333 So. 3d 384, 395 (La. 2021)). “The threshold

issue in any negligence action is whether the defendant owed the plaintiff a duty, and whether a

duty is owed is a question of law.” Evans v. Abubaker, Inc., 384 So. 3d 853, 858 (La. 2024).

Defendants contend that premises owners owe “no duty to control, or warn against, the criminal

actions of a third person to prevent him from causing physical injury to another, unless some

special relationship exists” and that no such relationship existed between S.A.S. and Defendants.26

Brown responds by noting that the complaint alleges that S.A.S. was an invitee at the time of the

26 R. Doc. 25-2 at 7 (citing Terrell v. Wallace, 758 So. 2d 158 (La. 2000)).

incident and argues that a landlord’s duty to protect or warn invitees from third-party harm can

arise out of a landlord’s voluntary assumption of such a duty, or when the landlord should have

foreseen such criminal activity.27

Brown’s third amended complaint pleads sufficient factual allegations to support a legally

cognizable negligence claim against Defendants. The complaint first alleges that the Willows was

under the control of and “owned, managed, maintained and operated by” Defendants at the time

of the shooting.28 The complaint further alleges that S.A.S. was an invitee of the Willows at the

time of the incident.29 Defendants insist, though, that the “bare conclusion” that S.A.S. was an

invitee “requires this Court to assume for the purposes of adjudicating this Rule 12(b)(6) motion

that S.A.S. either had no reason to be present at the apartment complex at the time of his death, or

that he should not have been present.”30 This contention misstates the applicable standard: on a

motion to dismiss, the Court must accept Brown’s allegation that S.A.S. was an invitee of the

Willows and all other well-pleaded factual allegations as true. See Iqbal, 556 U.S. at 678;

Twombly, 550 U.S. at 570. Regardless, while invitee status may determine the scope of any duty

owed, it is not determinative of whether any duty exists.

The jurisprudence is well established that “the duties of the landowner for the

purpose of determining liability in negligence actions … are no longer defined in

terms of the status of the person entering the land.” … The proper test is “whether

in the management of his property the landowner has acted as a reasonable man in

view of the probability of injury to others, and, although the plaintiff’s status as a

trespasser, licensee, or invitee may in the light of the facts giving rise to such status

have some bearing on the question of liability, the status is not determinative.”

27 R. Doc. 26 at 6.

28 R. Doc. 11 at 9. Brown’s first amended complaint (R. Doc. 1-2) substituted MOF-Willows, LLC and

MOF-Preservation of Affordability Corp. in place of “The Willows Apartment Partnership, Ltd.”

29 R. Doc. 11 at 9.

30 R. Doc. 25-2 at 7.

Johnson v. Evanston Ins. Co., 368 So. 3d 703, 716 (La. App. 2023) (internal citations and

alterations omitted) (first quoting Barcia v. Keil’s Est., 413 So. 2d 241, 243 (La. App. 1982), and

then quoting Cates v. Beauregard Elec. Coop., Inc., 328 So. 2d 367, 370 (La. 1976)).

While Defendants correctly observe that landowners have no general duty to protect others

from third-party criminal acts,31 “the Louisiana Supreme Court has held that business owners ‘do

have a duty to implement reasonable measures to protect their patrons from criminal acts when

those acts are foreseeable.’” Strauss v. Ironshore Specialty Ins. Co., 2020 WL 7770879, at *2, *4

(La. App. Dec. 30, 2020) (emphasis in original) (quoting Posecai v. Wal-Mart Stores, Inc., 752

So. 2d 762, 766 (La. 1999)) (reversing summary judgment in favor of alleged apartment complex

owner in negligence action arising out of shooting at apartment complex because evidence that

“multiple violent crimes … had occurred in the immediate area” in the years prior, and that

defendant “was aware of at least some risk to its residents,” raised a genuine issue of material fact

as to whether defendant “reasonably should have foreseen the occurrence of a violent crime on the

premises”); see also Manning v. RH Windrun LLC, --- So. 3d ---, 2024 WL 1905039 (La. App.

May 1, 2024) (reversing summary judgment in favor of apartment complex owner after finding

the plaintiff’s “statements regarding the prior incidents of crime on the property and the lack of

security measures implemented by [d]efendant [were] sufficient to create an issue of fact for trial

as to whether the shooting of decedent was foreseeable and as to whether [d]efendant had a duty

to provide security to its guests under the circumstances”), writ denied, 2024 WL 4355053 (La.

Oct. 1, 2024); cf. Brown v. England, L.P., --- So. 3d ---, 2024 WL 4297740 (La. App. Sept. 26,

2024) (affirming summary judgment in favor of apartment complex owner after finding that

31 Id. at 9.

shooting of guest at “quiet” apartment complex with no known prior incidents of gun violence was

not reasonably foreseeable).

The complaint alleges that Defendants were made aware of an escalating “pattern of

criminal activities, including homicides, assaults, robberies, and break-ins” at the Willows by

residents’ “ongoing and unheeded requests for protection” and “significant” news coverage of

criminal activity at the Willows.32 These allegations are sufficient to support the reasonable

inference that an incident like the shooting should have been foreseeable to Defendants, which,

under Louisiana law, would give rise to a duty to protect invitees from such foreseeable criminal

acts. The complaint also identifies several specific breaches of this duty by Defendants,33 and

alleges that those breaches “directly caused, proximately caused, and/or were a substantial factor

in causing S.A.S.’s death and Ms. Brown’s resulting injuries and damages.”34 Thus, Brown has

sufficiently pleaded each element of a negligence claim against Defendants.

The complaint also pleads sufficient facts to state a cognizable claim against Hamlet

individually. Hamlet argues that he, like Lemieux, cannot be held liable for alleged actions

undertaken in his capacity as chief executive officer (“CEO”) and president of MOF under

Koehring,35 which requires that four criteria be met showing that the defendant employee

personally, rather than vicariously, breached a duty to the plaintiff in order to hold an employee

liable in their individual capacity for breaches arising “solely because of the employment

relationship.” Ford v. Elsbury, 32 F.3d 931, 936 (5th Cir. 1994). While the complaint does allege

that Hamlet is CEO and president of MOF,36 the allegations against Hamlet do not arise “solely

32 R. Doc. 11 at 5-8 (quotations at 5, 6).

33 Id. at 9-11.

34 Id. at 9-11, 15.

35 R. Doc. 24-2 at 3-4.

36 R. Doc. 11 at 2.

because of [his] employment relationship” with MOF. Id. The complaint alleges that the Willows

is “owned, managed, maintained, and operated by PAC, [MOF-Willows, LLC, MOF-Preservation

of Affordability Corp.], MOF, and/or Dr. Hamlet,” subjecting Hamlet to liability as an alleged

landowner, not just as an employee.37 Lemieux, by contrast, was alleged only to have been an

employee, not an owner, of the Willows.38 The complaint also alleges that Hamlet was quoted by

local news as stating that “he pays for security” at the Willows,39 which, Brown argues, “prov[es]

his voluntary assumption of a duty to provide adequate security measures.”40 Louisiana courts

have found that, while no general duty to protect others from third-party crimes exists, when such

a duty “has been assumed, liability may be created by a negligent breach of that duty.” Harris v.

Pizza Hut of La., Inc., 455 So. 2d 1364, 1371 (La. 1984); cf. Mundy v. Dep’t of Health & Hum.

Res., 620 So. 2d 811 (La. 1993) (holding that plaintiff failed to prove defendant hospital was

negligent in that evidence of a single incident was insufficient to conclude that security measures

taken were unreasonable or inadequate). The complaint alleges specific breaches of the duty to

provide adequate security, which had been assumed by Defendants, including Hamlet,41 and such

breaches are alleged to have “directly caused, proximately caused, and/or were a substantial factor

in causing S.A.S.’s death and Ms. Brown’s resulting injuries and damages.”42 This is enough – at

the pleadings stage anyway – to state a cognizable negligence claim against Hamlet.

IV. CONCLUSION

Accordingly, for the foregoing reasons,

37 Id. at 9 (emphasis added).

38 Id. at 3.

39 Id. at 6-7.

40 R. Doc. 27 at 4.

41 R. Doc. 11 at 10.

42 Id. at 15.

IT IS ORDERED that defendant Dr. Richard Hamlet’s motion to dismiss the third amended

complaint for failure to state a claim (R. Doc. 24) is DENIED.

IT IS FURTHER ORDERED that Defendants’ motion to dismiss the third amended

complaint for failure to state a claim (R. Doc. 25) is also DENIED.

New Orleans, Louisiana, this 9th day of October, 2024.

________________________________

BARRY W. ASHE

UNITED STATES DISTRICT JUDGE