Woodward Harbor LLC v. City of Mandeville

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

WOODWARD HARBOR L.L.C., ET AL. CIVIL ACTION

VERSUS NO. 23-5824

CITY OF MANDEVILLE, ET AL. SECTION “O”

ORDER AND REASONS

Before the Court in this regulatory-takings case is the Federal Rule of Civil

Procedure 12(b)(6) motion1 of Defendant Jason Zuckerman to dismiss the claims that

Plaintiffs Woodward Harbor L.L.C. and LSU Health Foundation New Orleans assert

against him. After the five-member Mandeville City Council unanimously voted

against a mixed-use development slated for the shores of Lake Pontchartrain, the

developer (Woodward Harbor) and the landowner (LSU Health) sued the City of

Mandeville and Mandeville City Councilman Jason Zuckerman under 42 U.S.C. §

1983 and Louisiana law. Their claims against Zuckerman arise from his alleged

conduct as a councilmember evaluating and voting on a proposed ordinance.

Zuckerman moves the Court to dismiss those claims based on assorted immunities,

but the Court need only address one—qualified immunity. Woodward and LSU

Health have not met their burden to plead facts sufficient to overcome Zuckerman’s

qualified-immunity defenses under federal and Louisiana law. So they fail to state

any claims against him. Accordingly, for that reason and those that follow,

Zuckerman’s motion to dismiss is GRANTED.

1 ECF No. 15.

I. BACKGROUND

This regulatory-takings case arises from the Mandeville City Council’s 5–0

vote against an ordinance that would have approved the Sucette Harbor Project—“a

planned development along the shores of Lake Pontchartrain” that envisioned an 82-

room hotel, 201 age-restricted apartments, a restaurant, and a 103-boat marina.2

Plaintiff LSU Health Foundation owns the lakefront land slated to serve as the

site for the Sucette Harbor Project.3 Plaintiff Woodward Harbor leases that land from

LSU Health Foundation.4 The Court refers to the Plaintiffs collectively as “Sucette.”

On behalf of LSU Health Foundation, Woodward Harbor proposed the Sucette

Harbor Project in an application for a planned district and conditional-use approval

permit submitted to the City of Mandeville Planning and Zoning Commission.5

The Commission recommended approving the application (with certain

conditions) and reported its recommendation to the Mandeville City Council.6

For the City Council’s consideration, Sucette prepared a proposed ordinance,

Ordinance 23-16.7 If passed, Ordinance 23-16 would have conditionally approved the

site plan for the Sucette Harbor Project; required the property to be re-zoned from

2 ECF No. 1 at ¶ 19.

3 ECF No. 1-5 at 1, 3.

4 ECF No. 1

5 ECF No. 1-5 at 1; ECF No. 1 at ¶ 49.

6 ECF No. 1 at ¶¶ 51–53.

7 ECF No. 1 at ¶ 53; ECF No. 15-2 at 1. The Court may consider Ordinance 23-16 in its Rule

12(b)(6) review because Ordinance 23-16 is attached to Zuckerman’s motion to dismiss, referenced in

Sucette’s complaint, and central to Sucette’s claims. See generally Villareal v. Wells Fargo Bank, N.A.,

814 F.3d 763, 766–67 (5th Cir. 2016) (quotation and citation omitted).

Planned Residential District to Planned Combined Use District; and granted a

conditional use permit for the development of the entire site.8

The Mandeville City Council held nine public hearings on whether to approve

Ordinance 23-16 and thus the Sucette Harbor Project.9 Sucette alleges that those

hearings featured “uncontrollable, irrational debate,” with councilmembers

expressing “personal opinions regarding the underlying land use regulations”;10 that

councilmembers “could not even agree on the proper interpretation of procedural

rules, including Robert’s Rules of Order”;11 and that one particular public hearing

“was utter chaos and a complete violation of Louisiana’s laws on open meetings.”12

Sucette paints one member of the Mandeville City Council—Defendant Jason

Zuckerman—as the Sucette Harbor Project’s chief antagonist.13 Sucette alleges

Zuckerman “t[ook] the lead in unrestrained opposition” to Ordinance 23-16 and “set

out to kill the project on the basis of [his] personal belief” that it should not include a

hotel or apartments.14 Among other complaints about Zuckerman’s conduct in the

course of his consideration of Ordinance 23-16, Sucette alleges that Zuckerman—

• “overtly sought input” from lawyers other than the Mandeville

City Attorney;15

8 ECF No. 15-2 at 1.

9 ECF No. 1 at ¶ 53.

10 Id. at ¶¶ 58–58 (quotation omitted).

11 Id. at ¶ 60.

12 Id.

13 Id. at ¶ 54.

14 Id.

15 Id. at ¶ 59.

• “solicited input” from an architect “to glean rhetorical

ammunition in opposition to the project . . . with the intent to

undermine the City Council’s understanding of Sucette Harbor”;16

• “improper[ly] use[d]” Robert’s Rules of Order to deny Sucette “a

fair and impartial consideration of their development”;17

• engaged in “intentional antics” that “denied” other

councilmembers “the ability to modify” Ordinance 23-16;18

• “ignored objective standards on density”19 and “substituted [his]

own opinions concerning traffic or density for those of professional

engineers, planners, and architects”;20

• “fabricated a method of calculating the density for residential

units for the proposed project that disregarded a majority of the

land area involved”;21 and

• “substituted his personal preferences and bias to kill the

project[.]”22

Ultimately, the five-member Mandeville City Council unanimously voted

against Ordinance 23-16—“kill[ing]” the Sucette Harbor Project.23

Sucette sued a month later. Its eight-count complaint asserts assorted claims

against the City and Zuckerman under federal and Louisiana law.

Count One—Declaratory Relief.24 Sucette seeks a declaratory judgment (a)

declaring its application for a conditional-use permit approved; (b) allowing it to

16 Id.

17 Id. at ¶ 62.

18 Id. at ¶ 63.

19 Id. at ¶ 66.

20 Id. at ¶ 65.

21 Id. at ¶ 68.

22 Id. at ¶ 69.

23 Id. at ¶ 72.

24 Id. at ¶¶ 92–98.

“proceed forward with developing Sucette Harbor”; and (c) declaring that its

development plans “are appropriate and allowable under Mandeville’s laws[.]”25

Count Two—Alternative Declaratory Relief.26 If Sucette is not entitled to

the declaratory relief requested in count one, Sucette asks the Court for a declaratory

judgment that (a) the City violated Louisiana Open Meeting Laws; (b) “the review

process” violated Sucette’s procedural-due-process rights under the Fourteenth

Amendment to the U.S. Constitution; (c) Zuckerman “improperly calculated density

for the . . . project”; and (d) the City’s Comprehensive Land Use Regulations

Ordinance (“CLURO”) “is unconstitutionally overbroad, vague, and ambiguous[.]”27

Count Three—Federal Regulatory-Takings Claim.28 Sucette asserts that

the City and Zuckerman violated Sucette’s rights under the Takings Clause of the

Fifth Amendment to the U.S. Constitution, as incorporated by the Fourteenth

Amendment, by “over-regulat[ing] the subject property” and thus “tak[ing] [the]

property out of commerce.”29 In support, Sucette alleges that “no future developer

could possibly satisfy the whims of [the City and Zuckerman] on property zoned

Planned District,” and that the City and Zuckerman “lack the institutional knowledge

and control over the public in their forums to conduct hearings on land zoned Planned

District.”30 Sucette further alleges that the City and Zuckerman denied its

development plans for the project “based on Zuckerman’s illegal density calculation,”

25 Id. at ¶¶ 97–98.

26 Id. at ¶¶ 99–100.

27 Id. at ¶ 100.

28 Id. at ¶¶ 101–110.

29 Id. at ¶ 103.

30 Id. at ¶ 104.

“inappropriate consideration” of a particular zoning district, “personal aesthetic

considerations,” “erroneous concerns over potential traffic,” “inaccurate presumptions

about the noise on the . . . property,” “an incorrect interpretation of Robert’s Rules of

Order,” and “unadvertised (and inaccurate) comments from the public.”31

Count Four—Louisiana-Law Regulatory-Takings Claim.32 Sucette

alleges that the “rejection” of its “development plan” amounts to a regulatory taking

without just compensation that violates Sucette’s rights under Sections 1 and 4 of

Article I of the Louisiana Constitution.33 Without elaboration, Sucette concludes that

the rejection of the Sucette Harbor Project “has deprived the site of all economically

beneficial use.”34 In similarly conclusion fashion, Sucette alleges that Zuckerman and

the City “rejected the development . . . based on illegal motives and arguments”; that

the City Council’s “basis for decision-making is not grounded on any legitimate or

legally cognizable restrictions imposed by the reasonable exercise of the City’s policy

power”; and that the Council’s refusal to approve the project “is a de facto taking[.]”35

Count Five—Substantive-Due-Process Claim.36 Sucette alleges that

Zuckerman and the City violated Sucette’s right to substantive due process under the

Fourteenth Amendment to the U.S. Constitution by “denying the Sucette Harbor

development plan” in a way that “exceeds the scope of their decision-making

31 Id. at ¶ 105.

32 Id. at ¶¶ 111–115.

33 Id. at ¶ 113.

34 Id. at ¶ 114.

35 Id.

36 Id. at ¶¶ 116–123.

capacity[.]”37 Without elaboration or supporting facts, Sucette concludes that the

“reasons for denying the Sucette Harbor development project were arbitrary and

capricious”;38 that the rejection of the development plan “was outside [Zuckerman’s

and the City’s] scope of authority under the CLURO and [Section 33:101 of the

Louisiana Revised Statutes]”;39 that the rejection of the development plan “bears no

relationship to any legitimate governmental purpose”;40 that Sucette’s “practical

economic uses of the site have been eliminated”;41 and that Zuckerman and the City

“have substantially interfered with [Sucette’s] investment-backed expectations.”42

Count Six—Procedural-Due-Process Claim.43 Sucette alleges that

Zuckerman and the City violated Sucette’s procedural-due-process rights under the

Fourteenth Amendment to the U.S. Constitution by denying Sucette “notice and a

fair and impartial review of their proposed project.”44 Sucette complains that the City

Council violated the Louisiana Open Meetings Law in unspecified ways and held

“chaotic” and “disorganized” meetings on the project.45 Sucette further alleges that

Zuckerman and the City “had no intention of approving” a planned development on

the property, and Sucette thus reasons that it was “denied a fair and unbiased forum

within which to present [its] plan for the Sucette Harbor development[.]”46

37 Id. at ¶ 119.

38 Id. at ¶ 120.

39 Id. at ¶ 121.

40 Id. at ¶ 122.

41 Id.

42 Id.

43 Id. at ¶¶ 124–130.

44 Id. at ¶127.

45 Id. at ¶¶ 126–27.

46 Id. at ¶ 129.

Count Seven—Equal-Protection Claim.47 Sucette alleges that Zuckerman

and the City violated Sucette’s rights under the Equal Protection Clause of the

Fourteenth Amendment to the U.S. Constitution by “purposely and intentionally

treat[ing] [Sucette’s] proposed marina completely differently than other marinas in

the city limits.”48 Sucette alleges that “marina owners on the east side of Mandeville

have been allowed to leave sunken vessels in waterways and to not repair their

properties.”49 According to Sucette, the City and Zuckerman “inserted onerous

provisions surrounding the proposed marina that would prevent any financing of the

project,” including a “draconian penalty” for sunken vessels not timely removed that

“does not exist for any other marina in Mandeville.”50

Count Eight—Section 1983 Claim.51 Sucette alleges that the City and

Zuckerman are liable under Section 1983.52 In support, Sucette alleges that

“Defendants constantly met with members of the public solely for developing

strategies to impede, confuse, and incorrectly analyze CLURO provisions to prevent

commercial development.”53 Among other complaints about Zuckerman’s conduct

while considering Ordinance 23-16, Sucette alleges that Zuckerman (a) “coordinated

with a local architect . . . for purposes of incorrectly calculating density”;54 (b) “acted

on his own personal opinions and his personal aesthetic preferences”;55 (c) “did not

47 Id. at ¶¶ 131–137.

48 Id. at ¶ 133.

49 Id.

50 Id. at ¶ 134.

51 Id. at ¶¶ 138–144.

52 Id. at ¶ 140.

53 Id. at ¶ 139.

54 Id. at ¶ 140.

55 Id.

fairly and impartially review the site plans”;56 (d) “just tr[ied] to secure future votes”

“nearly every time [he] spoke” at Council meetings;57 (e) “conducted inappropriate

public meetings”;58 (f) “highjacked meetings, grandstanded for [his] constituents,

[and] rudely questioned and insulted the City Attorney and Planning Director”;59 and

(g) “substituted his own personal agenda or narrative at the Council’s meetings.”60

Based on these allegations and others, Sucette seeks the declaratory relief

mentioned above, compensatory damages for the alleged taking and for the cost of

Sucette’s application efforts, and attorney’s fees under 42 U.S.C. § 1988.61

Three motions to dismiss followed.62 In the one now before the Court,

Zuckerman moves the Court to dismiss all of the claims Sucette asserts against him

for failure to state a claim under Rule 12(b)(6), contending that he enjoys absolute

legislative immunity as well as qualified immunity.63 Sucette opposes.64

II. LEGAL STANDARD

Rule 8(a)(2) requires “a short and plain statement of the claim showing that

the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). A complaint that does not

satisfy Rule 8(a)(2)’s pleading standard fails to state a claim upon which relief can be

granted. See generally FED. R. CIV. P. 12(b)(6). “[T]he pleading standard Rule 8

announces does not require ‘detailed factual allegations,’ but it demands more than

56 Id. at ¶ 141.

57 Id.

58 Id. at ¶ 142.

59 Id. at ¶ 143.

60 Id.

61 Id. at 37–38 (prayer).

62 ECF No. 15; ECF No. 16; ECF No. 17.

63 ECF No. 15.

64 ECF No. 30.

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)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitations of

the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555).

“Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further

factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

“To survive a motion to dismiss” under Rule 12(b)(6), “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 has facial plausibility 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). “Although ‘[courts] accept all well-pled

facts as true, construing all reasonable inferences in the complaint in the light most

favorable to the plaintiff, conclusory allegations unwarranted factual inferences, or

legal conclusions are not accepted as true.’” Hodge v. Engleman, 90 F.4th 840, 843

(5th Cir. 2024) (quoting Allen v. Hays, 65 F.4th 736, 743 (5th Cir. 2023)).

III. ANALYSIS

Zuckerman contends that Sucette fails to state any claims against him because

he enjoys absolute legislative immunity and qualified immunity. The Court dismisses

Sucette’s claims against Zuckerman because Sucette fails to carry its burden to plead

facts—not mere legal conclusions—sufficient to overcome Zuckerman’s properly

raised qualified-immunity defense. Because the Court resolves Zuckerman’s motion

based on qualified immunity under federal and Louisiana law, the Court does not

reach Zuckerman’s arguments for dismissal based on absolute legislative immunity.

A. Qualified Immunity from Sucette’s Federal Claims

Sucette fails to state any Section 1983 claims against Zuckerman because

Zuckerman enjoys qualified immunity under federal law. “Qualified immunity

protects ‘all but the plainly incompetent or those who knowingly violate the law.’”

Hughes v. Garcia, 100 F.4th 611, 618 (5th Cir. 2024) (quoting Malley v. Briggs, 475

U.S. 335, 341 (1986)). Zuckerman properly raises a qualified-immunity defense at the

pleadings stage, so Sucette has the burden to plead facts sufficient to overcome both

prongs of the defense. See Guerra v. Castillo, 82 F.4th 278, 285 (5th Cir. 2023). To do

that, Sucette must plead facts allowing a reasonable inference that (1) Zuckerman

violated a statutory or constitutional right of Sucette’s; and (2) the right was clearly

established at the time of Zuckerman’s alleged conduct. See Edmiston v. Borrego, 75

F.4th 551, 558 (5th Cir. 2023). The Court “can analyze the prongs in either order or

resolve the case on a single prong.” Cunningham v. Castloo, 983 F.3d 185, 191 (5th

Cir. 2020) (quotation omitted). Because the Court “deems [it] most expeditious” to

resolve Zuckerman’s motion on the “clearly established” prong, Ramirez v.

Guadarrama, 3 F.4th 129, 133 (5th Cir. 2021) (per curiam) (citation omitted), the

Court does not consider the first prong. Accord, e.g., Cunningham, 983 F.3d at 194.

Sucette fails to plead facts sufficient to overcome the “clearly established”

prong of Zuckerman’s qualified-immunity defense. “The ‘clearly established’ prong is

difficult to satisfy.” Id. at 191 (citing Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir.

2019)). “A right is ‘clearly established’ only if it ‘is sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.’”

Id. (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)). “A case ‘directly on

point’ is not required, but ‘existing precedent must have placed the statutory or

constitutional question beyond debate.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S.

731, 741 (2011)). “Ultimately, ‘the dispositive question is whether the violative nature

of the particular conduct is clearly established.’” Id. (quoting Mullenix, 577 U.S. at

12). The Court “undertake[s] that inquiry ‘in [the] light of the specific context of the

case, not as a broad general proposition.’” Id. (quoting Mullenix, 577 U.S. at 12).

The Court starts the “clearly established” analysis by identifying Zuckerman’s

“particular conduct,” Mullenix, 577 U.S. at 12, based on the well-pleaded—i.e., non-

conclusory—allegations of Sucette’s complaint. Accord, e.g., Cunningham, 983 F.3d

at 193 (beginning the “clearly established” analysis by “describing the particular

conduct for which [the plaintiff] seeks to hold [the defendant] liable”). Here,

Zuckerman’s “particular conduct,” Mullenix, 577 U.S. at 12, includes these alleged

acts in connection with Zuckerman’s evaluation of, and voting on, Ordinance 23-16—

• “overtly s[eeking] input” from lawyers other than the Mandeville

City Attorney;65

• “solicit[ing] input” from an architect “to glean rhetorical

ammunition in opposition to the project . . . with the intent to

undermine the City Council’s understanding of Sucette Harbor”;66

• “improper[ly] us[ing]” Robert’s Rules of Order;67

65 ECF No. 1 at ¶ 59.

66 Id.

67 Id. at ¶ 62.

• “ignor[ing] objective standards on density”68 and “substitut[ing]

[his] own opinions concerning traffic or density for those of

professional engineers, planners, and architects”;69

• “coordinat[ing] with a local architect . . . for purposes of

incorrectly calculating density”;70

• “act[ing] on his own personal opinions and his personal aesthetic

preferences”;71

• “not fairly and impartially review[ing] the site plans”;72

• “just tr[ying] to secure future votes” “nearly every time [he]

spoke” at Council meetings;73

• “conduct[ing] inappropriate public meetings”;74

• “highjack[ing] meetings, grandstand[ing] for [his] constituents,

[and] rudely question[ing] and insult[ing] the City Attorney and

Planning Director”;75 and

• “substitut[ing] his own personal agenda or narrative at the

Council’s meetings.”76

Considering that “particular conduct,” Mullenix, 577 U.S. at 12, the Court

concludes that Zuckerman enjoys qualified immunity because Sucette fails to carry

its burden to point to any clearly established law that gave Zuckerman “fair warning”

that his alleged actions were unlawful. Salazar v. Molina, 37 F.4th 278, 285 (5th Cir.

2022) (quotation and citation omitted). Sucette “fails to cite any case that governs the

facts here and holds that sufficiently similar conduct violates the Constitution.”

68 Id. at ¶ 66.

69 Id. at ¶ 65.

70 Id. at ¶ 140.

71 Id.

72 Id. at ¶ 141.

73 Id.

74 Id. at ¶ 142.

75 Id. at ¶ 143.

76 Id.

Bakutis v. Dean, 129 F.4th 299, 305 (5th Cir. 2025). More specifically, Sucette cites

no published77 Fifth Circuit case,78 or any Supreme Court opinion, holding that a

councilmember violated a property owner’s or property developer’s statutory or

constitutional rights in the course of considering, and voting on, a proposed

commercial development through conduct that remotely resembles Zuckerman’s

alleged conduct here. That ends the prong-two inquiry.

Sucette’s counterarguments fail. First, Sucette contends that Zuckerman is not

entitled to qualified immunity because “an ordinary person should have known that

Zuckerman was violating [the] CLURO.”79 This argument fails because Sucette cites

nothing to support it. In all events, a violation of the CLURO does not equal a

violation of the U.S. Constitution; Sucette has not shown that Zuckerman’s alleged

violation of the CLURO is itself a violation of clearly established federal law.

Sucette next invokes “[t]hree fundamental Louisiana Supreme Court zoning

decisions” that Sucette says clearly establish the law.80 But none does. First and most

fundamentally, Sucette cites no authority that empowers the Court to rely on state

77 “Because nonprecedential opinions do not establish any binding law for the circuit, they

cannot be the source of clearly established law for qualified immunity analysis.” Marks v. Hudson, 933

F.3d 481, 486 (5th Cir. 2019) (quotation omitted).

78 The Supreme Court “has never held” that circuit precedent can clearly establish the law.

Nerio v. Evans, 974 F.3d 571, 576 n.2 (5th Cir. 2020) (citation and quotation omitted). But the Supreme

Court and the Fifth Circuit have “assum[ed]” that circuit precedent can do so. See, e.g., Rivas-Villegas

v. Cortesluna, 595 U.S. 1, 5 (2021) (per curiam); Salazar, 37 F.4th at 286 (citing Rivas-Villegas, 595

U.S. at 5). The Court makes that same “assumption” here. Salazar, 37 F.4th at 286 (citation omitted).

79 ECF No. 30 at 17.

80 Id. at 19 (first citing Morton v. Jefferson Par. Council, 419 So. 2d 431 (La. 1982); then citing

Gaudet v. Econ Super Mkt., Inc., 112 So. 2d 720 (La. 1959); and then citing McCauley v. Albert E.

Briede & Son, 90 So. 2d 78 (La. 1956)).

cases to discern clearly established federal law for purposes of evaluating

Zuckerman’s qualified-immunity defense to Sucette’s Section 1983 claims.

But even if Sucette’s state cases could clearly establish federal law in theory,

they do not do so in fact. None of them provides fair warning that Zuckerman’s alleged

conduct violated the U.S. Constitution because none of them involves conduct

remotely resembling Zuckerman’s alleged conduct here. Sucette’s state cases involve

constitutional challenges to zoning ordinances; none considers the individual-

capacity liability of one member of a multi-member legislative or quasi-legislative

body for constitutional violations the member allegedly committed through his

evaluation of, and vote against, an ordinance for a proposed commercial

development.81 So Sucette’s state cases necessarily “do not reflect clearly established

law under the facts presented in this case.” Cunningham, 983 F.3d at 192.

Sucette’s two Fifth Circuit cases are equally off-point.82 The first of the pair,

Piotrowski, held that a city was not liable under Section 1983 for alleged

constitutional violations arising from its failure to prevent the plaintiff’s former

boyfriend from trying to kill her. See 237 F.3d at 572, 585. The facts presented there

are nothing like the facts alleged here. Sucette’s second case—Modica—is as far afield

as its first. Modica considered claims for First Amendment retaliation and violations

81 See Morton, 419 So. 2d at 433 (suit against a parish council challenging the constitutionality

of a zoning ordinance); Gaudet, 112 So. 2d at 720–21 (suit against a private-business beneficiary of a

special-use permit challenging the constitutionality of the city council ordinance granting the permit);

McCauley, 90 So. 2d at 79 (suit against a city and the private-business beneficiary of a special-use

permit challenging the constitutionality of the ordinance granting the permit).

82 ECF No. 30 at 21 (citing Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001));

id. at 22–23 (citing Modica v. Taylor, 465 F.3d 174, 179–80 (5th Cir. 2006)).

of the Family Medical Leave Act that a former inspector of the Texas Cosmetology

Commission brought against the Commission’s Executive Director. See 465 F.3d at

178–79. To describe Modica is to distinguish it from this regulatory-takings case.

Sucette has the “burden to produce binding caselaw establishing” that

Zuckerman’s particular alleged conduct violated the U.S. Constitution. Bakutis, 129

F.4th at 306. Sucette fails to do so. Because Sucette “fail[s] to cite adequate authority

at a sufficiently high level of specificity to put [Zuckerman] on notice that his conduct

is definitively unlawful,” Cunningham, 983 F.3d at 194 (quotation and citation

omitted), Zuckerman enjoys qualified immunity. The Court therefore grants

Zuckerman’s motion to dismiss the Section 1983 claims Sucette asserts against him.

B. Qualified Immunity from Sucette’s Louisiana-Law Claim

Sucette fails to state any claim against Zuckerman under the Louisiana

Constitution because Zuckerman enjoys qualified immunity under Louisiana law.

“Louisiana applies qualified immunity principles to state constitutional law claims

based on ‘[t]he same factors that compelled the United States Supreme Court to

recognize a qualified good faith immunity for state officers under § 1983.’” Roberts v.

City of Shreveport, 397 F.3d 287, 296 (5th Cir. 2005) (quoting Moresi v. Dep’t of

Wildlife & Fisheries, 567 So. 2d 1081, 1093 (La. 1990)). So “federal qualified immunity

principles may be applied to claims under the Louisiana [C]onstitution ‘[i]nasmuch

as [they] parallel entirely the § 1983 allegations.’” Magnolia Island Plantation, L.L.C.

v. Whittington, 29 F.4th 246, 251 (5th Cir. 2022) (quoting Roberts, 397 F.3d at 296).

Sucette’s state constitutional claim against Zuckerman “parallel[s] entirely”

Sucette’s federal constitutional claims against Zuckerman. Id. (quotation omitted).

Both sets of claims rest on the same alleged conduct.83 And Sucette does not dispute

that the qualified-immunity analysis is the same for both sets of claims.84

Accordingly, because the alleged facts underlying both sets of claims are the

same, and because it is undisputed that the qualified-immunity defenses under state

and federal law are the same for all relevant purposes here, Zuckerman enjoys

qualified immunity from Sucette’s claims under the Louisiana Constitution for

essentially85 the same reasons he enjoys qualified immunity from Sucette’s Section

1983 claims. Accord, e.g., Roberts, 397 F.3d at 296 (holding that police chief enjoyed

qualified immunity from claims asserted against him under the Louisiana

Constitution “inasmuch as the plaintiffs’ claims under state constitutional law

parallel entirely the § 1983 allegations”); Magnolia Island Planation, 29 F.4th at 251

(holding that sheriff enjoyed qualified immunity from claims asserted against him

under the Louisiana Constitution for the same reasons he enjoyed qualified immunity

83 Compare ECF No. 1 at ¶¶ 111–115 (takings claim under the Louisiana Constitution) with

id. at ¶¶ 101–110 & 116–144 (claims for violations of the U.S. Constitution).

84 See ECF No. 30 at 24–25 (Sucette asserting that Zuckerman is not entitled to qualified

immunity from Sucette’s state-law claims for the same reasons he is not entitled to qualified immunity

from Sucette’s Section 1983 claims).

85 There is one potential analytical distinction, but it makes no difference here. As explained

in Section III(A), the Louisiana cases Sucette cites cannot, as a matter of law, clearly establish federal

constitutional law for purposes of Zuckerman’s federal qualified-immunity defense. When it comes to

Zuckerman’s Louisiana-law qualified-immunity defense, however, the Court assumes arguendo that

Sucette’s Louisiana cases can, in theory, clearly establish Louisiana constitutional law. Even so, none

of Sucette’s Louisiana cases satisfies the clearly established law requirement for purposes of

overcoming Zuckerman’s Louisiana-law qualified-immunity defense because, as explained in Section

III(A), none of those Louisiana cases involves conduct similar enough to Zuckerman’s alleged conduct

to provide Zuckerman fair warning that his alleged actions were unlawful.

from claims asserted against him under the U.S. Constitution). So the Court grants

Zuckerman’s motion to dismiss the Louisiana-law claim asserted against him.86

C. Leave to Amend

The Court dismisses all of Sucette’s claims against Zuckerman with prejudice

and without leave to amend. That is for two independent reasons.

First, Sucette has not properly moved for leave to amend. Sucette relegates its

request to a one-sentence footnote asking for “an opportunity to amend the

[c]omplaint to cure any shortfall in pleading any cause of action[.]”87 But “a bare

request in an opposition to a motion to dismiss—without any indication of the

particular grounds on which amendment is sought—does not constitute a motion

within the contemplation of Rule 15(a).” Smith v. CommonSpirit Health, 37 F.4th

1160, 1170 (5th Cir. 2022) (quotation omitted); cf. Porretto v. City of Galveston Park

Bd. of Trs., 113 F.4th 469, 491 (5th Cir. 2024) (affirming denial of “bare bones” request

in motion-to-dismiss opposition for “an opportunity to amend the [c]omplaint if the

Court deems additional factual allegations are necessary” (quotation omitted)).

Second, even if Sucette’s bare, footnoted request were a proper motion for

leave, the Court would still deny Sucette leave to amend because Sucette gives no

indication that it could plead facts sufficient to overcome Zuckerman’s qualified-

86 The failure of Sucette’s substantive claims dooms its claims for declaratory relief. That is

because claims for declaratory relief “are not freestanding; they must be supported by some underlying

cause of action.” Reyes v. N. Tex. Tollway Auth., (NTTA), 861 F.3d 558, 565 n.9 (5th Cir. 2017)

(quotation and citation omitted); accord Starrett v. City of Richardson, 766 F. App’x 108, 112 (5th Cir.

2019) (per curiam) (affirming Rule 12(b)(6) dismissal of declaratory-relief request and reasoning that

the request necessarily failed because the plaintiff failed to state any substantive claims).

87 ECF No. 30 at 25 n.85.

immunity defenses. Sucette failed to cite any precedent of any court that clearly

establishes the unlawfulness of Zuckerman’s particular alleged conduct. Indeed,

Sucette could not point the Court to any opinion of any court holding a member of a

legislative or quasi-legislative body liable for constitutional violations in

circumstances remotely resembling those alleged here. “The rule is that ‘a defendant’s

entitlement to qualified immunity should be determined at the earliest possible stage

of the litigation’—full stop.” Carswell v. Camp, 54 F.4th 307, 312 (5th Cir. 2022)

(quoting Ramirez, 3 F.4th at 133). Given “the importance of resolving immunity

questions at the earliest possible stage in litigation,” Pearson, 555 U.S. at 231–32,

and Sucette’s failure to give any indication that it could plead facts sufficient to

overcome Zuckerman’s qualified-immunity defenses, the Court would deny Sucette

leave to amend even if its one-sentence, footnoted request amounted to a proper

motion for leave to amend. For this second independent reason, the Court’s dismissal

of the claims against Zuckerman is with prejudice and without leave to amend.

IV. CONCLUSION

Accordingly,

IT IS ORDERED that Zuckerman’s Rule 12(b)(6) motion®® to dismiss is

GRANTED. Sucette’s claims against Zuckerman are DISMISSED WITH

PREJUDICE for failure to state a claim because Zuckerman is immune.

New Orleans, Louisiana, this 27th day of March, 2025.

BRANDON S. LONG

UNITED STATES DISTRICT JUDGE

88 ECF No. 15.

20