Opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CMP, LLC CIVIL ACTION

VERSUS NO. 24-2298

BOARD OF COMMISSIONERS FOR THE SECTION: D (1)

LAFITTE AREA INDEPENDENT

LEVEE DISTRICT

ORDER AND REASONS

Before the Court is a Motion to Dismiss for Lack of Subject Matter Jurisdiction

filed by Defendant Board of Commissioners for the Lafitte Area Independent Levee

District (“LAILD”).1 Plaintiff has filed a Response in Opposition2, and Defendant has

filed a Reply.3 After a careful review of the parties’ memoranda, the record, and the

applicable law, the Court DENIES Defendant’s Motion to Dismiss.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case concerns an alleged taking of real property within the bounds of the

Lafitte Area Independent Levee District in Jefferson Parish. Plaintiff CMP, LLC

(“CMP”) owns property within the boundaries of the LAILD in Jefferson Parish. As

part of a larger project, the Rosethorne Basin Lafitte Tidal Protection Levee, LAILD

raised the height of an existing levee on CMP’s property.4 Plaintiff alleges that

LAILD trespassed on its land without permission, without providing any

compensation to CMP, and before any appropriating resolution was passed by the

1 R. Doc. 57. The Motion also contains an alternative Motion for Summary Judgment. In this Order

and Reasons, the Court solely addresses the Motion to Dismiss. The Motion for Summary Judgment

will be addressed in a subsequent Order and Reasons.

2 R. Doc. 76.

3 R. Doc. 83.

4 R. Doc. 57-3 at ¶6; see R. Doc. 76-1.

LAILD.5 On August 22, 2022, LAILD passed a resolution that provided for an

appropriation of the portion of Plaintiff’s land containing the levee.6

On September 20, 2024, CMP filed the instant suit against LAILD for a failure

to pay just compensation for a taking under the Fifth and Fourteenth Amendments,

as well as 42 U.S.C. §1983.7 CMP seeks damages and a declaratory judgment that

LAILD deprived it of its rights to the levee and that the LAILD has no right of

appropriation to the land.8

In the instant Motion, the LAILD argues that it is entitled to Eleventh

Amendment immunity from suit in federal court.9 Defendant responds that the levee

board is not an arm of the state and that the Fifth Circuit has found that levee boards

do not constitute such. LAILD replies that Plaintiff’s response does not include an

individualized assessment of the LAILD under the six-factor immunity analysis

required by the Fifth Circuit and that, in applying this analysis to this particular

entity, LAILD is entitled to immunity under the Eleventh Amendment.10

II. LEGAL STANDARD

A motion to dismiss filed pursuant to Rule 12(b)(1) of the Federal Rules of Civil

Procedure allows a party to challenge the subject matter jurisdiction of the district

court to hear a case.11 A case is properly dismissed pursuant to Rule 12(b)(1) “for lack

of subject-matter jurisdiction when the court lacks the statutory or constitutional

5 R. Doc. 1; Because this fact is taken from Plaintiff’s complaint, it is not afforded the benefit of truth.

6 R. Doc. 57-18, Resolution 495.

7 R. Doc. 1.

8 Id. at p. 9.

9 R. Doc. 57-1 at pp. 7-12.

10 R. Doc. 83 at pp. 1-3.

11 Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

power to adjudicate the case.”12 In considering a challenge to subject matter

jurisdiction under Rule 12(b)(1), “the district court is ‘free to weigh the evidence and

resolve factual disputes in order to satisfy itself that it has the power to hear the

case.’”13 Thus, a motion to dismiss for lack of jurisdiction may be decided by the Court

based on: (1) the complaint alone; (2) the complaint and the undisputed facts in the

record; or (3) the complaint, the undisputed facts in the record, and the court’s own

resolution of disputed facts.14 The party asserting jurisdiction carries the burden of

proof when facing a Rule 12(b)(1) motion to dismiss.15 A motion to dismiss under

12(b)(1) should only be granted “if it appears certain that the plaintiff cannot prove

any set of facts in support of his claim that would entitle plaintiff to relief.”16

III. ANALYSIS

Defendant argues that this case should be dismissed because it is entitled to

sovereign immunity under the Eleventh Amendment. Defendant contends that

because the Lafitte Area Independent Levee District (“LAILD”) derives the vast

majority of its funding from the state of Louisiana and because of the nature of the

project at issue, a suit against the LAILD is essentially a suit against the state

itself.17 Plaintiff replies that, based on Fifth Circuit case law, levee boards are not

“arms of the state,” such that they would be entitled to immunity and that no court

12 Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005) (citing Home Builders Ass'n of Miss.,

Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)).

13 Krim, 402 F.3d at 494 (quoting Home Builders Ass'n of Miss., Inc., 143 F.3d at 1010).

14 Flores v. Pompeo, 936 F.3d 273, 276 (5th Cir. 2019) (quoting Robinson v. TCI/US W. Commc’ns Inc.,

117 F.3d 900, 904 (5th Cir. 1997)) (internal quotation marks omitted).

15 Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 762 (5th Cir. 2011) (citing Ramming, 281

F.3d at 161).

16 Ramming, 281 F.3d at 161 (citing Home Builders Ass'n of Miss., Inc., 143 F.3d at 1010).

17 R. Doc. 57-1 at pp. 8-9.

has ever found that a levee board enjoys Eleventh Amendment immunity.18 In its

Reply, Defendant emphasizes that the state exerted a great degree of control over the

project at issue in this case, further showing how much the state was involved with

the work of the LAILD.19

LAILD argues that it enjoys sovereign immunity under the Eleventh

Amendment to the U.S. Constitution. The Eleventh Amendment provides that

The Judicial power of the United States shall not be construed to extend to any

suit in law or equity, commenced or prosecuted against one of the United States

by Citizens of another State, or by Citizens or Subjects of any Foreign State.20

While broadly forming the constitutional basis for sovereign immunity, the

amendment explicitly prohibits federal courts from hearing suits against a state that

does not consent to be sued in federal court.21 Sovereign immunity under the

Eleventh Amendment deprives a federal court of jurisdiction to hear a suit against a

state.”22 Eleventh Amendment immunity extends to state agencies and entities that

are found to be “alter egos” or “arms” of the state.23 The Fifth Circuit has held that if

the entity is found to be so closely related to the state that “the state is the real,

substantial party in interest,” then the Eleventh Amendment will bar the federal

action.24 Eleventh Amendment sovereign immunity, however, does not apply to

entities that possess “‘an identity sufficiently distinct’ from that of the State.”25

18 R. Doc. 76 at pp. 5-7.

19 R. Doc. 83 at pp. 2-3.

20 U.S. CONST. amend. XI.

21 Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 54, 116 S. Ct. 1114, 1122, 134 L. Ed. 2d 252 (1996).

22 Warnock v. Pecos Cnty., Tex., 88 F.3d 341, 343 (5th Cir. 1996).

23 Vogt v. Bd. of Comm'rs of Orleans Levee Dist., 294 F.3d 684, 688 (5th Cir. 2002).

24 Hudson v. City of New Orleans, 174 F.3d 677, 681 (5th Cir. 1999).

25 Vogt, 294 F.3d at 689 (quoting Pendergrass v. Greater New Orleans Expressway Comm'n, 144 F.3d

342, 344 (5th Cir.1998)).

The Fifth Circuit has eschewed any bright-line test to determine whether a

political entity is an “alter ego” or “arm” of the state.26 Instead, courts in the circuit

generally consider six factors:

(1) whether state statutes and case law characterize the agency as an arm of

the state;

(2) the source of funds for the entity;

(3) the degree of local autonomy the entity enjoys;

(4) whether the entity is concerned primarily with local, as opposed to

statewide, problems;

(5) whether the entity has authority to sue and be sued in its own name; and

(6) whether the entity has the right to hold and use property.27

All factors need not be present for an entity to receive sovereign immunity.28 In the

balance of equities, the second factor is most important, while the fifth and sixth

factors are weighed significantly less.29 The Court analyzes each of these factors in

turn as it relates to LAILD.

1. Characterization of the Entity

Louisiana law characterizes a levee district as “a political subdivision of this

state organized for the purpose and charged with the duty of constructing and

maintaining levees…within its territorial limits.”30 When analyzing the nature of

levee districts, the Fifth Circuit has suggested that the title of “political subdivision”

is mutually exclusive from “arm of the state.”31 Furthermore, political subdivisions

are “not part of any department within the executive branch of government.”32 LAILD

26 Vogt, 294 F.3d at 689.

27 Id.

28 Hudson, 174 F.3d at 682.

29 Cozzo v. Tangipahoa Par. Council--President Gov't, 279 F.3d 273, 281 (5th Cir. 2002).

30 La. R.S. § 38:281.

31 Cozzo, 279 F.3d at 281–82.

32 Vogt, 294 F.3d at 692.

acknowledges that it is a political subdivision of the state of Louisiana.33 While

LAILD argues that it functionally falls under the executive branch of the state

government, as a matter of law, levee districts do not constitute part of the state

executive branch.34 As a result, the first factor weighs against Eleventh Amendment

sovereign immunity from suit.

2. Source of Funds

The next factor to be considered is the source of LAILD’s funding. Plaintiff

relies on Vogt, which addressed the Orleans Parish Levee District, to argue that this

factor favors a finding of no sovereign immunity.35 Defendant takes issue with

Plaintiff’s reliance on Vogt, arguing that, unlike the levee district in that case, the

LAILD receives substantial funds from the state and does not have the same

independent funding sources that that levee district possessed.36 LAILD contends

that the “lion’s share” of its funding in 2023, 2024, and 2025 is provided by the state37

When examining this factor, the Fifth Circuit has instructed that courts should

examine, first, what is “the state's liability in the event there is a judgment against

the defendant” and second, what is the state’s liability for the defendant’s general

debts and obligations.38 Regarding liability for a judgment, in the event of a judgment

against LAILD, the state has no legal liability.39 The Louisiana Constitution provides

that a judgment against a political subdivision, like a levee district, is not exigible,

33 R. Doc. 57-1 at p. 9.

34 See Vogt, 294 F.3d at 692.

35 R. Doc. 76 at pp. 5-6.

36 R. Doc. 57-1 at p. 11.

37 Id.

38 Hudson, 174 F.3d at 687.

39 Vogt, 294 F.3d at 693.

payable, or paid except from funds appropriated therefor by the legislature or by the

political subdivision against which the judgment is rendered.”40 While the legislature

may appropriate funds to pay a judgment against a levee district, “the legislature

certainly has no legal obligation to do so.”41

The Court acknowledges that the state government provides the majority of

LAILD’s annual funding, which standing alone suggests a finding that this factor

favors immunity under the Eleventh Amendment.42 As discussed above, the source

of annual funding is only one portion of the analysis. The state of Louisiana has no

duty to pay a judgment on behalf of the LAILD, and Defendant has not shown that

the state “regularly appropriates money to pay judgments against the entity.”43 As a

result, the Court finds this factor neutral in its analysis of Eleventh Amendment

immunity.

3. Degree of Local Autonomy

In examining the degree of local autonomy of a political entity, courts look to

the extent of the entity’s independent management authority and the independence

of the individual commissioners in charge of the entity.44 The Board of Commissioners

of the LAILD consists of five members, appointed by the Governor and confirmed by

the State Senate.45 There are various restrictions on who can fill the five seats on the

board, including residency requirements, fixed terms of service, and nomination by

40 La. Const. art 12, § 10(C).

41 Vogt, 294 F.3d at 693.

42 Because the factor examines the “source of the levee district’s funding” (see id.), the Court declines

to consider Defendant’s argument regarding the funding of the project at issue in the present case.

43 Vogt, 294 F.3d at 693

44 Id. at 694.

45 La. R.S. § 38:291 (Y).

legislators.46 LAILD also possesses taxing authority.47 The restrictions on the

appointment of the commissioners and the district’s taxing authority demonstrate a

degree of independence from the state executive branch.48 Further, each levee district

has the authority to hold property, issue bonds, raise taxes up to a certain rate and

make and execute contracts necessary to perform their functions.49 Additionally,

while Defendant argues that the state through the Coastal Protection and

Restoration Authority (“CPRA”) monitors its projects and receives reports from the

district, its arguments center largely around the project at issue, not the overall

workings of the LAILD Board of Commissioners. 50 As a result, the Court finds that

the third factor falls against Eleventh Amendment immunity because of the degree

of local autonomy that the LAILD possesses.

4. Concern with Local or Statewide Problems

When analyzing to what degree a political entity is concerned with primarily

local, as opposed to statewide, concerns, courts look to “whether the entity acts for

the benefit and welfare of the state as a whole or for the special advantage of local

inhabitants.”51 Generally, the presence of limited territorial boundaries suggest that

an entity is not an arm of the state.52 The LAILD argues that, while it is mostly

46 Id.

47 La. R.S. § 38:291 (Y)(6).

48 See Pendergrass v. Greater New Orleans Expressway Comm'n, 144 F.3d 342, 347 (5th Cir. 1998)

(holding that residency requirements, fixed term of appointments, local legislative delegation

nomination, and senate approval “tug strongly” in the direction of local autonomy).

49 La. R. S. § 38:314, 38:431, 38:401, 38:404, 38:306(A).

50 R. Doc. 57-1 at p. 11; R. Doc. 83 at pp. 2-3.

51 Pendergrass, 144 F.3d at 347 (citing Jacintoport Corp. v. Greater Baton Rouge Port Comm'n, 762

F.2d 435, 443 (5th Cir. 1985)).

52 Vogt, 294 F.3d at 695.

concerned with levee protection for a specific geographical area, the projects are

integrated into a larger coastal protection project.53 Though the actions of the LAILD

generate some statewide benefits, its activities are localized, and it possess a specific

territorial jurisdiction.54 As a result, this factor points toward the entity not being an

arm of the state and lacking Eleventh Amendment Immunity.

5. Authority to Sue and Be Sued

The board of a levee district “may sue and be sued under the style of Board of

Commissioners for the respective district.”55 While “the last two factors weigh

significantly less in the six factor balance of equities” test to determine whether an

entity is an arm of the state, this factor cuts against a claim of Eleventh Amendment

immunity.56

6. Right to Hold and Use Property

“Each board of commissioners [of a levee district] may buy and hold, sell and

transfer, or exchange property.”57 Defendant does not contest this factor, which

weighs against a finding of immunity under the Eleventh Amendment.58

IV. CONCLUSION

After assessing each factor in the six-factor balance of equities test regarding

whether a political entity is considered to be an arm of the state, the Court concludes

53 R. Doc. 57-1 at p. 12.

54 See Bonin v. Sabine River Auth., 65 F.4th 249, 259 (5th Cir.), cert. denied, 144 S. Ct. 287, 217 L. Ed.

2d 131 (2023).

55 La. R.S. § 38:309(B).

56 Cozzo v. Tangipahoa Par. Council--President Gov't, 279 F.3d 273, 281 (5th Cir. 2002).

57 La. R.S. § 38:306(A).

58 See R. Docs. 57-1 and 83. The Court acknowledges that this factor weighs less in the six-factor

balance of equities analysis.

that the Lafitte Area Independent Levee District is not an arm of the state and, as

such, is not entitled to immunity under the Eleventh Amendment.

For the foregoing reasons,

IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss for Lack of

Subject Matter Jurisdiction®? is DENIED.

New Orleans, Louisiana, December 16, 2025.

WENDY 5 VITTER

United States District Judge

59 R. Doc. 57. The Court will address Defendant’s alternative Motion for Summary Judgment in a

subsequent Order and Reasons.

10