Opinion
CIVIL ACTION NO. 3:12-CV-00289
03-21-2016
RICKY L. BROWN, Plaintiff v. FIFTH LA. LEVEE DISTRICT, TENSAS PARISH, ET AL. Defendants
JUDGE JAMES
REPORT AND RECOMMENDATION
Before the Court is a Motion to Dismiss (Doc. 71) filed by Defendant, the Louisiana Department of Transportation and Development ("DOTD"). In the Motion, DOTD seeks dismissal under Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of Civil Procedure. DOTD asserts five bases for dismissal: (1) Eleventh Amendment immunity; (2) lack of complete diversity; (3) general failure to state a claim against DOTD; (4) lack of ripeness; and (5) failure to state a claim for denial of all practical use of the subject land. Plaintiff, Ricky L. Brown ("Brown"), did not file an opposition to the Motion.
On March 17, 2016, the Court conducted a hearing on the Motion. During that hearing, counsel for Plaintiff conceded that the Motion should be granted, and that DOTD should be dismissed from this lawsuit. Specifically - and to counsel's credit - counsel for Plaintiff conceded that DOTD is neither a diverse defendant nor has any "transactional history" which bears upon Plaintiff's claims.
After reviewing the parties' briefs and arguments, and in light of Plaintiff's concessions during the hearing,
IT IS RECOMMENDED that the Motion to Dismiss (Doc. 71) be GRANTED.
IT IS FURTHER RECOMMENDED that all claims asserted by Plaintiff, Ricky L. Brown, against Defendant, the Louisiana Department of Transportation, be DISMISSED WITHOUT PREJUDICE.
Under the provisions of 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P. 72(b), parties aggrieved by this Report and Recommendation have fourteen (14) calendar days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. No other briefs (such as supplemental objections, reply briefs, etc.) may be filed. Providing a courtesy copy of the objection to the undersigned is neither required nor encouraged. Timely objections will be considered by the District Judge before a final ruling.
Failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation within fourteen (14) days from the date of its service, or within the time frame authorized by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Judge, except upon grounds of plain error.
THUS DONE AND SIGNED in Alexandria, Louisiana, this 21st day of March, 2016.
/s/_________
JOSEPH H.L. PEREZ-MONTES
UNITED STATES MAGISTRATE JUDGE