Opinion
Civil Action No. 02-770, Section "N" (4)
September 5, 2002
ORDER AND REASONS
Before the Court is a Rule 12(c) Motion for Judgment on the Pleadings [Rec. Doc. No. 9] filed on behalf of defendants, the Houma-Terrebonne Housing Authority, Judith R. Escamilla, Ann P. Lirette, Chester Dillard, Bernard Beicher, Suzanne Richard and Robert Bergeron, seeking dismissal as a matter of law of a number of the plaintiffs claims filed herein. Defendants contend that the following claims should be dismissed as a matter of law on the pleadings for the reason indicated as to each, to wit: (1) plaintiffs claims pursuant to Louisiana's Open Meetings Law, La. Rev. Stat. 42:6.1 should be dismissed as time-barred by the 60-day peremptive period set forth in the statute and the damages sought are not recoverable under the aforesaid statute; (2) plaintiffs claims for procedural and substantive due process violations under the Fifth Amendment should be dismissed because the Fifth Amendment of the United States Constitution applies only to actions by the federal government and not to actions attributable to a municipal agency; (3) plaintiff has failed to state a claim for breach of contract because the plain language of La. Rev. Stat. 40:539(c)(1) which states that the executive director, inter alia, shall serve at the pleasure of the authority arguably implies that the position be occupied by an at-will employee of the HTHA, and thus the contract, if any, to the extent it grants the Authority powers beyond those the legislature prescribed, should be totally ignored; and (4) plaintiff has failed to state a claim for defamation because the plaintiff has allegedly failed to identify any defamatory words uttered by any one of the defendants. At this juncture of the proceedings, the defendants do not seek dismissal of the plaintiffs claims for racial discrimination, due process violations pursuant to the 14th Amendment of the Constitution of the United States or for alleged violations of Title 42, United States Code §§ 1981, 1983, and 1985.
Hoffauir v. Department of Safety and Corrections, 762 So.2d 1219, 1222 (La.App. 1St Cir. 2000) (upholding the peremptive construction of the 60-day limitation period set forth in L.R.S. 42:9); Norwood v. Layrisson, 451 So.2d 1338, 1339 (La.App. 1St Cir. 1984)(same); and Kennedy v. Powell, 401 So.2d 453, 457 (La.App. 2nd Cir. 1981) (need for certainty in public administration demands that the 60-day limitation period be construed as a peremptive period running from the date of occurrence), cert. denied, 406 So.2d 607 (La. 1981).
Joseph v. Hospital Service District No. 2, 805 So.2d 413 (La.App. 151 Cir. 2001) (damages for violation of Open Meetings Law are not available under the statute).
Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996)("[T]he Fifth Amendment applies only to the actions of the federal government, and not to actions of a municipal government. . . .").
The plaintiff filed a formal opposition memorandum, but did not oppose judgment on the pleadings dismissing her claims pursuant to Louisiana's Open Meetings Law or her Fifth Amendment procedural and substantive due process claims. In all other respects, defendants' motion was opposed. The defendants filed a formal reply. The matter is deemed submitted for determination without oral argument. For the following reasons the defendants' Rule 12(c) Motion for Judgment on the Pleadings is DENIED IN PART and GRANTED IN PART (i.e., granted only with respect to plaintiffs claims for due process violations pursuant to the 5th Amendment, and violation of Louisiana's Open Meeting Law).
I. BACKGROUND
Plaintiff Alma Scott filed the captioned matter on March 14, 2002, claiming racial discrimination in violation of 42 U.S.C. § 1981, 1983, and 1985, due process violations pursuant to both the 5th and the 14th Amendments to the Constitution of the United States, as well as state law breach of contract, defamation and violation of Louisiana's Open Meeting Law. The factual allegations set forth in the plaintiffs complaint are that she is an African American and was hired by the defendant Housing Authority on or about July 1, 1970 and began work as the Executive Director of the Housing Authority on or about November 1, 1998. Then, on or about May 12, 1999, she entered into a five-year employment contract with the Housing Authority. Ms. Scott alleges that throughout the year of 2001 the defendants communicated false and defamatory remarks about her to the media, third persons and each other.
Complaint at paras. 12-14 [Rec. Doc. No. 1].
Ms. Scott claims that on September 6, 2001, she received a letter informing her that she would be terminated within 60 days of September 18, 2001 unless she could explain numerous allegations which were set forth in the September 6, 2001 letter. Plaintiff contends that the allegations were false and a pretext for discrimination against her. Plaintiff later received a September 17, 2001 letter noting that she was in fact terminated in accordance with the schedule set forth in the September 6, 2001 letter.
Ms. Scott claims money damages for alleged deprivation of her civil rights and due process violations under color of state law to her detriment. More particularly, plaintiff claims that she was wrongfully terminated without notice and an opportunity to be heard, all in violation of the 5th and 14th Amendment and 42 U.S.C. § 1983 and 1985. Plaintiff alleges that termination due to her race (African-American) and filling that position with a Caucasian-Hispanic constitutes a violation of 42 U.S.C. § 1981. Plaintiff further claims monetary damages pursuant to state law for breach of her five-year employment contract, defamation (numerous untruthful statements which were allegedly defamatory per se), and violations of Louisiana's Open Meeting Law.
Id. at paras. 15-34.
Id. at paras. 35-38.
II. ANALYSIS 1. Standard of Review
A party may move for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) after the pleadings are closed and when it would not delay trial. Jones v. Geninger, 188 F.3d 322, 324 (5th Cir. 1999); St. Paul Insurance Company of Bellaire, Texas v. AFIA Worldwide Insurance Company, 937 F.2d 274, 279 (5th Cir. 1991); Fed.R.Civ.P. 12(c). A court considering a Rule 12(c) motion for a judgment on the pleadings must look only at the pleadings, accept the well-pleaded allegations contained in them as true, and view them in a light most favorable to the plaintiff. Jones, 188 F.3d at 324; Doe v. Hillsboro Independent School District, 81 F.3d 1395, 1401 (5th Cir. 1996); Hebert Abstract Co., Inc. v. Touchstone Properties, Ltd, 914 F.2d 74, 76 (5th Cir. 1990). The court may dismiss a claim when it is clear that the plaintiff can prove no set of facts in support of a claim that would entitle him to relief. Jones, 188 F.3d at 324; Fee v. Herndon, 900 F.2d 804, 807 (5th Cir. 1990). The issue is not whether the plaintiff will ultimately prevail, but whether she is entitled to offer evidence to support the claim. Suffice it to say, the court should not dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible theory that she could prove consistent with the allegations in the complaint. See Jones, 188 F.3d at 324 (citing Vander Zee v. Reno, 73 F.3d 1365, 1368 (5th Cir. 1996)).
Whereas here, the defendants raise the defense of failure to state a claim upon which relief may be granted in a motion for judgment on the pleadings, the court may simply treat the motion as if it were one to dismiss. See id; National Association of Pharmaceutical Manufacturers v. Ayerst Laboratories, 850 F.2d 904, 909 n. 4 (2nd Cir. 1988); see also Fed.R.Civ.P. 1 2(h)(2) (providing that the defense of failure to state a claim may be raised in a Rule 12(c) motion); and Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996) (In ruling on a 12(b)(6) motion, the court cannot look beyond the pleadings; all well-pleaded facts must be accepted as true and viewed in a light most favorable to the plaintiff).
A ruling on a motion for judgment on the pleadings is reviewed under roughly the same standard as a Rule 12(b)(6) motion to dismiss for failure to state a claim. See St. Paul Insurance Company of Bellaire Texas, 937 F.2d at 279; see also GATX Leasing Corporation v. National Union Fire Insurance Company, 64 F.3d 1112, 1114 (7th Cir. 1995). The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid cause of action when it is viewed in a light most favorable to the plaintiff, and with every doubt resolved in favor of the plaintiff. Lowrey, 117 F.3d at 247; see also Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001)("All questions of fact and any ambiguities in the current controlling substantive law must be resolved in the plaintiffs favor."); Indest v. Freeman Decorating, Inc., 164 F.3d 258, 261 (5th Cir. 1999) (if the allegations support relief on any possible theory, a dismissal will not be affirmed). To avoid dismissal, a plaintiff must plead specific facts, not mere conclusory allegations. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992); Elliot v. Foufas, 867 F.2d 877, 881 (5th Cir. 1989).
A Rule 12(b)(6) motion to dismiss for failure to state a claim "is viewed with disfavor and is rarely granted." Lowrey v. Texas A M University System, 117 F.3d 242, 247 (5th Cir. 1997).
2. Defamation
In order to recover for defamation, the Louisiana Supreme Court requires proof of four elements, to wit: (1) a false defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. "Thus a plaintiff, in order to prevail in a defamation action, must prove 'that the defendant, with actual malice or other fault, published a false statement with defamatory words which caused the plaintiff damages.'" Trentecosta v. Beck, 703 So.2d 552, 559 (1997) (citing Sassone v. Elder, 626 So.2d 345, 350 (La. 1993)). A communication is defamatory if it tends to harm the reputation of another so as to lower her in the estimation of the community, deprive the person of public confidence in her occupation, or deter third persons from associating or dealing with her. Trentecosta, 703 So.2d at 559; Sassone, 626 So.2d at 352.
Defendant contends that the plaintiffs defamation claims should be dismissed with prejudice because plaintiffs allegations are conclusory and fail to specifically identify the defamatory words in her complaint. Plaintiff submits that her defamation claims are legitimate, and claims (albeit in her memorandum in opposition) that the defamatory words in question involve charges of mismanagement and malfeasance in office and that those defamatory words were uttered by Bobby Bergeron the Parish President, which remarks were published in the local newspaper The Houma Courier for the entire community to see.
See Plaintiffs Memorandum in Opposition, at p. 9-10. No such specifics, however, are set forth in the plaintiffs petition.
Rule 15(a) of the Federal Rules of Civil Procedure requires that leave to amend be "freely given when justice so requires," and the Fifth Circuit has cautioned that "this mandate is to be heeded." Lowrey, 117 F.3d at 245. Noting the strong presumption in favor of liberal pleading, the Fifth Circuit in Lowrey explained that:
"If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith, or dilatory motive on the part of [plaintiff], repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be "freely given."
Lowrey, 117 F.3d at 245 (quoting Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 230 (1962)).
The Court agrees with the defendants that the plaintiffs allegations of defamation are conclusory. In her petition the plaintiff has stated no facts to inform Defendants of the grounds of her claim, and even under the liberal notice and pleading allowed by Fed.R.Civ.P. 8(a), plaintiffs complaint in this regard is woefully inadequate. At a minimum, the plaintiff needs to identify via Amended Complaint the alleged defamatory statements, the maker of the statements, the date the statements were made or published, and the third parties to whom the statements were made or otherwise published. At this early stage of the proceeding, this Court can see no reason why leave to amend should not be granted, giving the plaintiff the opportunity to cure the deficiency in her complaint outlined by the defendants. This Court does so bearing in mind that plaintiff must be given a fair opportunity to plead. See e. g. Williams v. WMX Technologies, Inc., 112 F.3d 175, 178 (5th Cir. 1997) (noting that the cry of pleading technicalities must be put in perspective, cautioning against dimming the beacon on Rule 8(f)'s mandate to construe all pleadings so as to do substantial justice, and instructing that plaintiffs must be given a fair opportunity to plead).
3. Breach of Contract under Louisiana Law
Essentially, defendants' contention is that it is beyond the power of the Housing Authority (i.e., an ultra vires act) to "contract-hire" for the position of Executive Director, and that any such provision in a contract that the plaintiff may have had with the Authority obviates the plaintiffs claim for breach of contract. The alleged five-year employment contract at issue is not presently before the Court on the defendants' motion for judgment on the pleadings. Defendant submits via reply that no reference at all need be made to the particular contract at all, if any such contract exists.
Louisiana's Housing Authority Law, § 539(C), provides that:
C. (1) The authority shall select a secretary who shall be the executive director and chief executive and administrative officer of the authority. He shall serve at the pleasure of the authority. The authority shall fix the compensation of the executive director.
(8) Except as provided in the Constitution of Louisiana and as may otherwise be authorized by the State Civil Service Commission, all employees of the authority, except authority members, the executive director, and one other employee whom the authority shall designate and employ, and except professional employees employed on a contract basis, shall be in the classified state civil service.
The ordinance tracks the "universally accepted" rule that the office of an employee of a public body, where the tenure is not otherwise fixed by law, is held at the pleasure of the authority or body making the appointment. See Gamier v. Louisiana Milk Commission, 200 La. 594, 8 So.2d 611 (1942); Potts v. Morehouse Parish School Board, 177 La. 1103, 150 So. 290 (1933). In the absence of a special law requiring a contract for a specific term, it is against public policy to permit public boards to contract away the right to remove employees at will by entering into contracts of employment for definite periods of time. See Hartwig Moss Insurance Agency v. Board of Commissioners, 206 La. 395, 19 So.2d 178 (1944) (a contract for a term under such conditions is ultra vires and unenforceable).
See also Shows v. Morehouse General Hospital, 463 So.2d 884, 886 (La.App. 2nd Cir. 1985), citing Poole v. La Salle Parish School Board, 183 So. 182 (La.App. 2nd Cir. 1938), Gamier, supra, 8 So.2d at 614, Hartwig Moss, supra, 19 So.2d at 181, and further holding that plaintiff had no cause of action for damages for wrongful termination because (1) the ordinance authorizing the advisory commission to hire a director did not authorize a term of employment and (2) the ordinance expresses that the director shall serve at the pleasure of the commission which phrase negates authority to contract for a term and means that the hiring body has absolute authority to remove and discharge the employee without cause at its pleasure).
Moreover, in Fiorentino v. United States, 221 Ct.Cl. 545, 607 F.2d 963 (1979), cert. denied, 444 U.S. 1083, 100 S.Ct. 1039 (1980), the court considered the case of an attorney employed by the Department of Housing and Urban Development ("HUD"), who was terminated and sought reinstatement on the basis that he had a property interest in his continued employment based on certain statements found in HUD's employment handbook. The Fiorentino court addressed whether an executive agency could, through its personnel handbook or other regulation, give an employee a protected property interest in continued employment, answering the question in the negative, to wit:
It is unfortunately all too common for government manuals, handbooks, and in-house publications to contain statements that were not meant and are not wholly reliable. If they go counter to governing statutes . . . they do not bind the government, and persons relying on them do so at their peril.
Fiorentino, 607 F.2d at 968. The Fiorentino court did not address the issue of whether the existence of an employment contract for a term of years would vest the plaintiff with any property or liberty interest. The Court is mindful that the defendants in the case at bar do not seek Rule 12(c) judgment on the pleadings with respect to the plaintiffs claims under the Fourteenth Amendment at this stage of the proceedings. However, whether or not there is any valid property interest in the alleged employment contract, or whether there is a contract at all, for that matter, necessarily has some bearing on the plaintiffs due process claims filed pursuant to the Fourteenth Amendment.
Plaintiff cites Andrepont v. Lake Charles Harbor and Terminal District, 602 So.2d 704, 710 (La. 1992) for the proposition that she has a cause of action for damages pursuant to La. Civ. Code Arts. 2747-2450 for breach of contract on account of her alleged wrongful termination without just cause prior to the expiration of her five year contract. However, plaintiffs employment contract in Andrepont, supra, was valid in all respects at the time it was executed. Id. at 706 The Louisiana Supreme Court noted that: "[T]he contract was valid at its inception" and "did not violate the provisions of La. R.S. 42:3 when Andrepont contracted with the Dock Board for a four year term as Port Director." Id. It was only after execution of the valid contract that the Dock Board which hired Andrepont was disbanded by legislative amendment to La. R.S. 34:202, creating a new Dock Board. The Louisiana Supreme Court noted that La. R.S. 42:3 evidenced a policy of permitting each public board to elect its own employees and officers, but did not address the situation where a board's term was shortened by legislative fiat. Id. at 706. The Court held that the Louisiana legislature's amendment of La. R.S. 34:202 did not terminate Andrepont's contract or legally divest him of any rights under the contract. Id.
La. Rev. Stat. 42:3 provides:
The terms of office of all employees or officials elected by any state, district, parochial, or municipal board shall not be for a longer period of time than the term of office of the membership of the board electing them so that each respective board shall elect its own officers and employees. Id.
The Andrepont case is inapposite. Nevertheless, this Court is loathe to grant summary dismissal on the pleadings. Where, as here, it is not clear that the plaintiffs breach of contract claims contemplate any relief other than damages for wrongful termination pursuant to the contract. Louisiana law and public policy proscribe any such recovery by a public employee hired to fill an at-will position. The standard applicable to a Motion for Judgment on the Pleadings (i. e., judgment is only appropriate when it is clear that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief), this Court is of the opinion that summary dismissal of the plaintiffs breach of contract claim in its entirety solely on the pleadings is premature and inappropriate. The alleged five-year employment contract at issue is not before the Court, and that is because the instant motion is one for judgment on the pleadings. Whereas plaintiff may not have a claim for damages for wrongful termination under the alleged contract as a matter of law, the Court cannot determine on the basis of the pleadings alone that the plaintiff is entitled to no recovery whatsoever for breach of the alleged contract at issue. The better course is to address the plaintiffs state law claims for recovery under the alleged five-year employment contract on a more complete record and all at once, as opposed to piecemeal, and in so doing to allow the plaintiff to amend and supplement her pleading to state any and all actionable breach of contract claims she believes she may have and for which a recovery may be warranted.
The Court denies defendants' motion for partial judgment at this juncture of the proceedings, allowing the plaintiff a period of twenty days from the date of the entry of this order within which to supplement or amend her claim for breach of contract, failing which the Court shall dismiss what now appears to be her solitary claim for recovery under that theory (i.e., a claim for damages for wrongful termination in breach of the unenforceable provision of an alleged five-year employment contract).
Accordingly, and for all of the above and foregoing reasons,
IT IS ORDERED that the defendants' Motion for Judgment on the pleadings is GRANTED IN PART, but only insofar as the defendants seek summary dismissal with prejudice of the plaintiffs claims of violation of Louisiana's Open Meetings Law and Fifth Amendment due process claims. In all other respects the defendants' motion is denied at this stage of the proceedings.
IT IS FURTHER ORDERED that with respect to the defamation and breach of contract claims against the defendants, the plaintiff shall within twenty days of the entry of this order amend her allegations to plead her claims of defamation with particularity as discussed herein and to supplement her claim for breach of contract detailing any and all contractual claims the plaintiff believes she may have, failing which the plaintiffs defamation and breach of contract claims will be dismissed with prejudice.