“An appellant abandons all issues not raised and argued in its initial brief.”
How later courts described this case
- “An appellant abandons all issues not raised and argued in its initial brief.”
- “We hold that States and state entities that claim to be ‘arms of the State’ may take advantage of the collateral order doctrine to appeal a district court order de- nying a claim of Eleventh Amendment immunity.”
Written by the judges who cited it.
The opinion
REVISED JANUARY 16, 2008 United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE FIFTH CIRCUIT December 17, 2007
Charles R. Fulbruge III
No. 07-30348 Clerk
UNITED DISASTER RESPONSE, LLC,
Plaintiff-
Counter Defendant-
Appellee,
v.
OMNI PINNACLE, LLC,
Defendant-
Cross Claimant-
Counter Claimant-
Appellee,
v.
ST. TAMMANY PARISH,
Defendant-
Cross Defendant-
Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 2:06-CV-6075
No. 07-30348
Before REAVLEY, SMITH, and GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Omni Pinnacle, LLC (“Omni”), contracted with St. Tammany Parish to
perform post-hurricane repairs. Omni subcontracted with United Disaster Re-
sponse, LLC (“United”). Alleging that additional payment was due, United sued
Omni and the parish, and Omni counterclaimed against United and cross-
claimed against the Parish. Citing the Eleventh Amendment, Louisiana state
law, and a choice-of-forum clause in the contract, the parish moved to dismiss.
The district court rejected the parish’s arguments. We affirm in part and dis-
miss in part.
I.
The parish entered into a contract with Omni to help with repairs after a
storm or other disaster. Omni then subcontracted with United. After hurri-
canes Katrina and Rita, the Parish called OmniSSand, by extension, UnitedSS
into action.
Because of a disagreement about the work provided, the parish made only
partial payment to Omni, which in turn only partially paid United. Invoking
diversity jurisdiction under 28 U.S.C. § 1332, United sued Omni and the parish
for full payment; Omni counterclaimed against United and cross-claimed against
the parish.
In response to United’s and Omni’s claims, the parish filed a Federal Rule
of Civil Procedure 12(b) motion to dismiss. The parish argued that it had im-
munity under the Eleventh Amendment and Louisiana law and that the contract
contains, by reference, a mandatory choice-of-forum clause stating that “[t]he
22nd Judicial District Court for the Parish of St. Tammany shall be the court of
original jurisdiction of any litigation originated under this contract.”
2
No. 07-30348
The district court denied the motion, ruling that the parish is not an “arm
of the state” and that the choice-of-forum clause is not exclusive. The court did
not address the state law argument. The parish appeals, basing appellate juris-
diction on the collateral order doctrine. See Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541 (1949).
II.
We review questions of immunity de novo. United States v. Texas Tech
Univ., 171 F.3d 279, 288 (5th Cir. 1999). We do the same for constructions of
choice-of-forum clauses. Afram Carriers, Inc. v. Moeykens, 145 F.3d 298, 301
(5th Cir. 1998).
III.
We first confront whether the district court erred in failing expressly to
apply the six-prong test of Delahoussaye v. City of New Iberia, 937 F.2d 144, 147
(5th Cir. 1991).1 The parish argues that under Flores v. Cameron County, 92
F.3d 258, 268 (5th Cir. 1996), the court was required to apply Delahoussaye be-
cause “analogies between like entities cannot replace consideration of the six rel-
evant factors.” The district court did not err. This is not a case with such extra-
ordinary circumstances that we can find that the parish is an “arm of the state”
1
Because “[t]here is no bright-line test for determining whether a political entity is an
‘arm of the State’ for purposes of Eleventh Amendment immunity,” Vogt v. Bd. of Commr’s Or-
leans Levee Dist., 294 F.3d 684, 689 (5th Cir. 2002), in Delahoussaye, 937 F.2d at 147, we held
that courts should consider six factors:
(1) whether the 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.
3
No. 07-30348
notwithstanding the holding in County of Lincoln v. Luning, 133 U.S. 529, 530
(1889), that “the Eleventh Amendment limits . . . jurisdiction only as to suits
against a state” and not against counties and parishes.
We addressed this issue at length in Crane v. Texas, 759 F.2d 412 (5th
Cir.), amended in part on denial of rehearing, 766 F.2d 193 (5th Cir. 1985), not-
ing that the Supreme Court has repeatedly stated “that the Eleventh Amend-
ment does not apply to counties and similar municipal corporations.” Id. at 415
(internal citations and quotations omitted). We went so far as to characterize
the Court’s statements to be “unambiguous” and listed at length the “abundance
of authority holding the Eleventh Amendment inapplicable to counties . . . .” Id.
at 416 (internal citations omitted). Holding that these “authorities . . . establish
without question that Eleventh Amendment immunity does not, as a general
rule, extend to counties,” we further stated that “no exception should be made
to this rule without convincing evidence distinguishing the county in question
from counties generally.” Id. at 417. In deciding whether this “convincing”
showing could be made, we noted that “the most crucial factor . . . is whether the
funds to defray any award would be derived from the state treasury,” id. (inter-
nal citations and quotations omitted), but even then we took special care to em-
phasize the need for “payment of the judgment . . . to be made directly from the
state treasury,” id. (internal citations and quotations omitted). This is a de-
manding standard.2
Though the district court should have more pellucidly explained why the
parish was not entitled to immunity, the court was not mistaken in denying the
motion to dismiss: The parish cannot show with “convincing evidence” that it is
2
It is so demanding, in fact, that the parish cites no case in which a county or parish
was held to be an arm of the state. Given this dearth of supportive caselaw, it is not surprising
that “[i]t is settled law that the parishes are not protected from suit by the eleventh amend-
ment.” United States v. St. Bernard Parish, 756 F.2d 1116, 1126 (5th Cir. 1985).
4
No. 07-30348
distinguishable from parishes or “counties generally.”
The parish properly concedes some of the Delahoussaye factors. For in-
stance, the parish can sue and be sued in its own name and can hold and use
property. Likewise, Louisiana law does not characterize the parish as an arm
of the state.3
For Delahoussaye factors three and four, the factors relating to the parish’s
autonomy and scope of authority, the parish attempts to create a special4 rule
for hurricanes: Where a hurricane or another wide-scale disaster is involved, the
parish is entitled to Eleventh Amendment immunity because of the Louisiana
Homeland Security and Emergency Assistance and Disaster Act, LSA-R.S.
§§ 29:721 et seq. The act states that “[e]ach political subdivision . . . shall be
within the jurisdiction of and served by the Governor’s Office of Homeland
Security and Emergency Preparedness . . . and by a parish homeland security
and emergency preparedness agency responsible for emergenc[ies]. . . .,” id.
§ 29:727(A), and requires each parish’s office of homeland security and emergen-
cy preparedness to coordinate with federal and state agencies, id. § 29:729-
(B)(11). The act also requires that parishes prepare emergency plans for various
3
The parish, a “political subdivision” under Louisiana law, only indirectly concedes this
factor, but
[t]he statutory classification of . . . “political subdivisions” is significant. Our de-
cision in Cozzo [v. Tangipahoa Parish Council, 279 F.3d 273, 281-82 (5th Cir.
2002] suggests that “political subdivision” . . . and “arm of the state” are mutual-
ly exclusive. While this may not be a hard-and-fast rule, virtually every other
government entity classified as a political subdivision has been denied Eleventh
Amendment immunity . . . . Moreover, political subdivisions are not part of any
department within the executive branch of government. In every recent case in
which a Louisiana political entity has been held to be an “arm of the state,” the
state agency being sued was part of a department within the executive branch.
Vogt, 294 F.3d at 692.
4
The parish acknowledges that it “generally enjoys independent management of Parish
affairs.”
5
No. 07-30348
threats. Id. § 29:729.
The parish’s argument is unconvincing. Merely requiring the parish and
the state to cooperate does not transform the parish into the state, and the par-
ish offers no cases to support the contrary conclusion. The degree of state intru-
sion into the parish’s autonomy is not dramatic. The act explains that “[t]he par-
ish office of homeland security and emergency preparedness under the parish
president, shall be responsible for homeland security and emergency prepared-
ness in the parish,” id. § 29:729(A); “[e]ach parish office of homeland security
and emergency preparedness . . . shall have a director . . . [who] shall serve at
the pleasure of the parish president,” id. § 29:728(A); and the director “shall
have direct responsibility for the organization, administration, and operation of
such local organization for homeland security and emergency preparedness,”
with the governor merely having “general direction and control,” id. § 29:728(C).
The act does not make the parish an arm of the state.
The parish’s argument that it is concerned with statewide problems under
the fourth Delahoussaye factor suffers from additional flaws. In Vogt, 294 F.3d
at 695, a case concerning a levee district, we stated that “[l]imited territorial
boundaries suggest that an agency is not an arm of the state” and “most entities
that are entitled to Eleventh Amendment immunity have statewide jurisdiction.”
The parish obviously has a limited territorial boundary. Vogt forecloses another
of the parish’s arguments, that somehow its efforts facilitate statewide recovery
and thus render the it an arm of the state: “The levee board’s counter-argument
is that the levee district is concerned with a statewide problemSSfloodingSSand
that the nature of the problem outweighs the narrow geographic boundaries of
the levee district. However, primary education and law enforcement are also
statewide concerns, yet school boards and sheriffs are not arms of the state.” Id.
Thus, the parish’s only real hope is the second Delahoussaye factor: the
source of funds used. The parish argues that because all of its hurricane recov-
6
No. 07-30348
ery funds come from the federal government, channeled through the state, it is
an arm of the state. But this is incorrect. There is no formal requirement for
Louisiana to pay a judgment to Omni or United, if such a judgment is rendered.
The state may choose to reimburse the parish, but that is not enough. Vogt, 294
F.3d at 693.
As we explained in Vogt, under Louisiana statutory and constitutional law
the state has no duty to indemnify any judgment against its political subdivi-
sions, including parishes. Id. “Although the legislature has the authority to ap-
propriate funds to pay a judgment against a [political subdivision], the legisla-
ture certainly has no legal obligation to do so. Thus, no legal liability arises
against the state in the event of a judgment against [a political subdivision] or
its officers.” Id. Such a “request” for “state money [to] be appropriated to pay
the judgment [is] too speculative for Eleventh Amendment analysis.” Id.5
IV.
The parish contends that Louisiana law protects it from suit in a federal
court sitting in diversity.6 A Louisiana statute provides that “[n]o suit against
5
In Vogt, 294 F.3d at 693, we did note that “[w]e have left open the possibility that a
state entity could show that the legislatureSSeven where it is not obliged to do soSSregularly
appropriates money to pay judgments against the entity.” The parish does not argue that
there is a regular practice of the state’s paying the parish’s judgments, so we need not consider
that question.
6
Though the collateral order doctrine gives us jurisdiction to consider the parish’s Elev-
enth Amendment claims, see e.g., P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506
U.S. 139, 147 (1993) (“We hold that States and state entities that claim to be ‘arms of the
State’ may take advantage of the collateral order doctrine to appeal a district court order de-
nying a claim of Eleventh Amendment immunity.”), we must decide whether the doctrine also
gives us jurisdiction over this state law argument, which, though similar to Eleventh Amend-
ment immunity, is not identical to it. Under Cohen, there is collateral jurisdiction if the inter-
locutory order conclusively determines the disputed question, resolves an important issue sepa-
rate from the merits, and cannot be effectively reviewed on appeal from a final judgment. The
reasoning of Puerto Rico Aqueduct, 506 U.S. at 144, applies here: If “a State and its ‘arms’ are,
in effect, immune from suit in federal court, it follows that the elements of the . . . collateral
(continued...)
7
No. 07-30348
the state or a state agency or political subdivision shall be instituted in any court
other than a Louisiana state court.” LSA-R.S. § 13:5106(A). From this, the
parish argues that it cannot be sued in federal court.
The parish’s contention is nearly frivolous. We have already addressed the
same issue involving the same statute. In In re Allied-Signal, Inc., 919 F.2d 277
(5th Cir. 1990), we decided “whether a political subdivision, which pursuant to
state statute [i.e. § 13:5106(A)] may be only sued in the state courts of Louisiana,
and which, we assume, does not enjoy Eleventh Amendment immunity, may be
sued in federal district court under diversity of citizenship jurisdiction.” Id. at
278.
Notwithstanding Erie,7 we held that such suits can be brought in federal
court.8 “[P]olitical subdivisions that have waived common law immunity, but
that do not enjoy Eleventh Amendment immunity under federal law, can be sued
in federal courts under diversity jurisdiction without regard to state statutory
provisions to the contrary.” Id. at 280 n.4 (citing Chicot County v. Sherwood, 148
U.S. 529, 533-34 (1893)).9 Allied-Signal is on point here.10
6
(...continued)
order doctrine are satisfied.” Therefore, we have jurisdiction over this question.
7
Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
8
It is “clear . . . that governmental units not covered by the Eleventh Amendment are
suable in federal court, even in actions based solely on diversity jurisdiction. Thus, even when
a state creates governmental units that it wishes to be immune from suit in federal court, a
federal court may disregard the state’s wishes.” 13 CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 3524 (2d ed. 1987), at 213-14. See also Mark-
ham v. City of Newport News, 292 F.2d 711, 718 (4th Cir. 1961) (“It would be quite foreign to
the Erie doctrine . . . to apply a state statute in such a way as to deny all relief in a federal
court to a nonresident plaintiff on a cause of action which, clearly, the state courts could recog-
nize and enforce. Erie requires that the federal court grant or withhold relief as the state
courts would. It does not require relegation of the diversity jurisdiction to the mercies of the
legislatures of fifty separate states.”).
9
See also N.Y. Life Ins. Co. v. Plaquemines Parish Comm’n Council, No. 91-0909, 1991
WL 161512, at *2 (E.D. La. Aug. 13, 1991) (“The fault with Plaquemine Parish’s argument is
(continued...)
8
No. 07-30348
V.
The parish’s final argument is that the district court misconstrued the con-
tract’s choice-of-forum clause, which the parish argues allows suit to be brought
only in the parish’s 22nd Judicial District Court. Because, however, this is an
interlocutory appeal, we do not have jurisdiction to consider the issue.
Under 28 U.S.C. § 1291, unless one of the limited exceptions to the final
judgment rule applies, we can review only “final decisions.” One such exception
is the collateral order doctrine. The parish attempts to invoke that exception as
a basis for appellate review of the choice-of-forum determination.11
Precedent, however, forecloses the parish’s argument. In Louisiana Ice
Cream Distributors, Inc. v. Carvel Corp., 821 F.2d 1031 1032 (5th Cir. 1987), we
considered a contract with a choice-of-forum clause stating “that ‘New York shall
be a forum where any cause of action arising under this Agreement may be insti-
tuted.’” Id. at 1032. There, plaintiff sued in the Eastern District of Louisiana.
The defendant unsuccessfully moved under Federal Rule of Civil Procedure
12(b)(3) to dismiss for improper venue.
9
(...continued)
that it never had Eleventh Amendment immunity . . . . Plaquemines Parish is a ‘political sub-
division’ of the State of Louisiana. Plaquemines Parish is not an arm of the state immune from
suit in federal court under the Eleventh Amendment. Therefore, Plaquemines Parish may be
sued in federal court under diversity jurisdiction notwithstanding State statutory provisions,
such as § 13:5106(A), that purport to limit the waiver of common law immunity to state court
actions.”).
10
The Parish puts far too much weight on the fact that Allied-Signal involved a petition
for writ of mandamus. The district court in Allied-Signal remanded to state court, after remov-
al, “expressly and affirmatively bas[ing] its decision to remand on 13:5106(A).” Allied Signal,
919 F.2d at 280. We granted mandamus “to correct [the] district court’s remand order and [to]
require it to entertain an action when it has been expressly and incorrectly remanded.” Id. at
281. Thus, we directly ruled on the merits of § 13:5106(A).
11
Likely realizing that its collateral order doctrine argument is flawed, the parish asse-
rts in its reply brief that this court has pendent appellate jurisdiction over the denial of the mo-
tion to dismiss on the choice-of-forum clause. That argument is waived. Cinel v. Connick, 15
F.3d 1338, 1345 (5th Cir. 1994) (“An appellant abandons all issues not raised and argued in
its initial brief.”).
9
No. 07-30348
On interlocutory appeal, we held that “[t]he denial of a motion to dismiss
for improper venue is not a final order under 28 U.S.C. § 1291. Rather, it is an
interlocutory order which is not subject to immediate appeal.” Id. We likewise
held that the matter did not “fall[] within the ambit of the collateral order doc-
trine.” Id.
The facts in Louisiana Ice Cream are for all relevant purposes identical to
those here. Therefore, we lack jurisdiction to review this aspect of the district
court’s decision, so that portion of this appeal is dismissed.12
The order denying the motion to dismiss is AFFIRMED, and the appeal of
the order regarding the choice-of-forum clause is DISMISSED.
12
After the district court ruled in this case, another judge in the same district, in Top
Branch Tree Serv. & Landscaping, Inc. v. Omni Pinacle, LLC, No. 06-3723, 2007 WL 1234976
(E.D. La. Apr. 26, 2007), dismissed a similar claim against the parish based on the same choice
-of-forum clause. The Parish argues that Top Branch should have collateral estoppelSSmistak-
enly labeled res judicataSSeffect here. That is incorrect. Because our jurisdiction under the
collateral order doctrine is “extraordinarily limited,” Anchor Hocking v. Willamette Indus., Inc.,
694 F.2d 1041, 1042 (5th Cir. 1983), and because collateral estoppel is a nonjurisdictional affir-
mative defense, 18 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 132.05[8](a) (3d
ed. 1999), we do not have jurisdiction to address the collateral estoppel effectSSif anySSof Top
Branch.
10