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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA JONATHAN P. ROBICHEAUX, ET AL. * CIVIL ACTION NO. 13-CV-05090 * * * Versus * * JAMES D. CALDWELL, LOUISIANA * DISTRICT JUDGE: MLCF ATTORNEY GENERAL * * MAGISTRATE JUDGE: ALC ****************************************************************************** THE ATTORNEY GENERALS MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION MAY IT PLEASE THE COURT, through undersigned counsel, comes the named Defendant, James D. Buddy Caldwell, in his official capacity as Attorney General of the State of Louisiana, who moves to dismiss the Plaintiffs Complaints for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) for the following non-exhaustive reasons set forth below and more fully explained in the memorandum in support. Notably, the Attorney General appears solely for the purpose of asserting the lack of subject matter jurisdiction. He does not concede to this Honorable Courts jurisdiction and specifically reserves and retains any and all rights and privileges available to him to contest such jurisdiction at a later time, file motions to dismiss on alternative grounds, raise affirmative defenses not now asserted, and/or contest the substance and merit of Plaintiffs constitutional claims including its request for injunctive relief. The Plaintiffs challenge is non-justiciable and should be dismissed based on Fed. R. Civ. P. 12(b)(1). The Attorney General is entitled to Eleventh Amendment immunity as he has been sued in his official capacity. Nowhere in the federal laws the Plaintiffs cites to does Congress

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specifically abrogate state sovereign immunity. Furthermore, the Attorney General expressly declines to waive his immunity. Nor does the Ex Parte Young doctrine allow the Plaintiffs to pierce the Attorney Generals immunity in this manner. The Ex Parte Young doctrine exception only applies if: 1) the plaintiffs are seeking prospective relief; 2) defendant has the required connection to the unconstitutional act; and 3) the defendant is threatening to or commencing enforcement of the provisions in question. Here, the Attorney General does not have the

required nexus to the enforcement of the challenged provisions. Nor is there any indication the Attorney General is threatening to or commencing enforcement of these provisions. The failure to meet either one of these requirements of the Ex Parte Young exception renders the Attorney General immune from suit in this matter based on the Eleventh Amendment. WHEREFORE, James D. Buddy Caldwell, in his official capacity as Attorney General of the State of Louisiana, prays that an Order be issued by this Court which: 1. 2. Grants the Attorney Generals Motion to Dismiss Plaintiffs Complaints with prejudice pursuant to Fed. R. Civ. P. 12(b)(1); and For all other legal and equitable remedies available to them.

RESPECTFULLY SUBMITTED, James D. Buddy Caldwell ATTORNEY GENERAL /s/Jessica MP Thornhill________________ Jessica MP Thornhill (La. Bar # 34118) Angelique Duhon Freel (La. Bar # 28561) Assistant Attorneys General Louisiana Department of Justice Civil Division P. O. BOX 94005 Baton Rouge, Louisiana 70804-9005 Telephone: (225) 326-6060 Facsimile: (225) 326-6098 Email: thornhillj@ag.state.la.us freela@ag.state.la.us

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CERTIFICATE OF SERVICE I hereby certify that, on November 6, 2013, I electronically filed the forgoing with the Clerk of Court by using the CM/EMF system, which will send a notice of electronic filing to all counsel of record. _____/s/Jessica MP Thornhill_______ Jessica MP Thornhill

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA JONATHAN P. ROBICHEAUX, ET AL. * CIVIL ACTION NO. 13-CV-05090 * * * Versus * * JAMES D. CALDWELL, LOUISIANA * DISTRICT JUDGE: MLCF ATTORNEY GENERAL * * MAGISTRATE JUDGE: ALC ****************************************************************************** THE ATTORNEY GENERALS MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION NOW INTO COURT, through undersigned counsel, comes James D. Buddy Caldwell, in his official capacity as Attorney General of the State of Louisiana, who files this memorandum in support of his contemporaneously-filed motion to dismiss the Plaintiffs Complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). The Attorney General appears solely for the purpose of asserting the lack of subject matter jurisdiction. He specifically reserves and retains any and all rights and privileges

available to him to file motions to dismiss on alternative grounds, raise affirmative defenses not now asserted, and/or contest the substance and merit of Plaintiffs constitutional claims including its request for injunctive relief. I. FACTUAL AND PROCEDURAL HISTORY On July 16, 2013, the Plaintiff filed a Complaint wherein he named the Louisiana Attorney General James D. Caldwell as a Defendant.1 The Plaintiff identified James D. Caldwell

Rec. Doc. 1.

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as the Attorney General of the State of Louisiana.2 Attorney General Caldwell was also named as a Defendant in his official capacity.3 The Plaintiff asserts that the enforcement and enactment of Louisiana Constitution 154 and Louisiana Civil Code Article 3520 violate the Equal Protections Clause, the Substantive Due Process Clause, and the Full Faith and Credit Clause of the United States Constitution.5 The Plaintiff also raises a cause of action under 42 U.S.C. 1983.6 As a remedy, the Plaintiff has requested this Court to enter judgment in his favor and [e]nter a declaratory judgment that Section 18 of the Louisiana Constitution and Louisiana Civil Code Article 3520 B (1) violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution; [e]nter a declaratory judgment that Section 18 of the Louisiana Constitution and Louisiana Civil Code Article 3520 B (1) violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; [e]nter a declaratory judgment that Section 18 of the Louisiana Constitution and Louisiana Civil Code Article 3520 B (1) violate the Full Faith and Credit Clause of the United States Constitution; [e]nter a permanent injunction enjoining Defendants from denying the Plaintiff and his Husband and all other same-sex couples the benefits of marriage and to recognize marriages validly entered into by the Plaintiff and his Husband and other same-sex couples outside of the State of Louisiana.7 The Plaintiff also seeks fees, costs under 42 U.S.C. 1988 and further relief that the Court may deem proper.8 On July 25, 2013, Attorney General Caldwell was served with a copy of the Complaint. Attorney General Caldwell waived service on July 29, 2013.9 The Plaintiff filed a

2 3

Rec. Doc. 1, 4. Rec. Doc. 1, 1. 4 It is our presumption that this is Article 12, 15 of the Louisiana Constitution. 5 Rec. Doc. 10. 6 Rec. Doc. 10, 3. 7 Rec. Doc. 10, 60. 8 Id. 9 Rec. Doc. 6 and 7. Plaintiff acknowledges in his motion for leave to file amended complaint that the Attorney General waived service on July 29, 2013.

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Supplemental and Amended Complaint on August 9, 2013.10 Attorney General Caldwell filed a motion to dismiss for improper venue on September 26, 2013.11 This Honorable Court requested supplemental memoranda from both parties which were submitted on October 30, 2013.12 On November 4, 2013, the Plaintiff filed a Second Amended Complaint, which added three additional Plaintiffs to the case and made no additional allegations or claims for relief.13 The Attorney General now files the instant motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) in response to the Plaintiffs Complaints. II. LAW AND ARGUMENT The Plaintiffs fail to present a justiciable controversy to this Honorable Court as the Attorney General is immune from suit based on the Eleventh Amendment. If a matter is nonjusticiable the court lacks the power to adjudicate the matter.14 When a court lacks the

constitutional power to adjudicate a matter, it should be dismissed for lack of subject matter jurisdiction.15 Failure to present a justiciable controversy renders the matter improperly before the court, leaving the court with the obligation to dismiss the complaint. Federal Rule of Civil Procedure 12(b)(1) is the proper mechanism to attack the Plaintiffs justiciability as it effects the courts subject matter jurisdiction.16 A challenge to subject matter jurisdiction may be raised at any time, by any party, or by the court sua sponte.17 In a Fed. R.

Rec. Doc. 10. Rec. Doc. 13. 12 Rec. Doc. 15. 13 Rec. Doc. 22. 14 U.S. Const. Art. III, 2. 15 Home Builders Ass'n of Mississippi, Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998). 16 Warnock v. Pecos County, Tex., 88 F.3d 341, 343 (5th Cir.1996) (articulating that a motion to dismiss under Fed. R.. Civ. P. 12(b)(1) is the correct way to seek the dismissal of a claim based on Eleventh Amendment Immunity); Kervin v. City of New Orleans, 06-3231, 2006 WL 2849861 (E.D. La. Sept. 28, 2006); Fox, et al. v. Reed, et al., 2000 WL 288379 at *2 (E.D.La. 2000); Rodriguez v. Board of Trustees for State Colleges and Universities, 1983 WL 484909, n. 3 (E.D.La.1983). 17 Arena v. Graybar Elec. Co., Inc., 669 F.3d 214, 223 (5th Cir. 2012), See also Great Prize, S.A. v. Mariner Shipping Party, Ltd., 967 F.2d 167, 159 n. 4 (5th Cir.1992), Trust Company Bank v. U.S. Gypsum Co., 950 F.2d 1144, 1146 (5th Cir.1992), and Patterson v. Hamrick, 885 F.Supp. 145, 147 (E.D.La. 1995).
11

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Civ. P. 12(b)(1) motion to dismiss, the burden of proof lies with the party asserting the courts jurisdiction, the Plaintiffs in this matter.18 In deciding a motion to dismiss, the function of the district court is to test the legal sufficiency of the complaint.19 A court may consider (1) the

complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts when evaluating the subject matter jurisdiction.20 In this suit, the Attorney General raises a fatal attack on the Plaintiffs Complaints based on subject matter jurisdiction. i. Eleventh Amendment Immunity Protects the Attorney General from Suit in Federal Court. The Attorney General is immune from suit in this forum based on the Eleventh Amendment of the United States Constitution. The Eleventh Amendment provides: The Judicial power of the United States shall not be construed to extend in any suit in law or equity, commenced or prosecuted against one of the United States by Citizens or Subjects of any Foreign State.21 Eleventh Amendment immunity prohibits not just action against the State but also action against state officials in their official capacity.22 The Attorney General here has been sued in his official capacity.23 Pursuant to sovereign immunity principles provided by the Eleventh Amendment, this Honorable Courts jurisdiction does not extend over the claims alleged in this suit against the Attorney General of the State of Louisiana. The Eleventh Amendment bars suits in federal

Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001); Stain v. Harrelson Rubber Co. 742 F.2d 888, 889 (5 Cir. 1984). 19 City of Toledo v. Beazer Materials and Services, Inc., 833 F.Supp. 646 (N.D.Ohio 1993). 20 Doe v. Caldwell, 913 F. Supp. 2d 262, 270 (E.D. La. 2012) (citing BarreraMontenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996)). 21 U.S. Const. Amend. XI. 22 McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 412 (5th Cir. 2004); See also Champagne v. Jefferson Parish Sheriff's Office, 188 F.3d 312, 313 (5th Cir. 1999) (determining that generally all Louisiana Executive Departments are entitled to Eleventh Amendment immunity). 23 Rec. Doc. 1 and 10.
th

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court by citizens of a state against their own state or a state agency or department.24 Further, it bars claims for both money damages and injunctive relief unless the state has waived its immunity.25 Louisiana expressly declines to waive its immunity.26 The concept of state sovereign immunity has two parts: first, that each State is a sovereign entity in our federal system; and second, that it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.27 While a states immunity is not absolute, the Supreme Court has recognized only a few circumstances whereby an individual can sue a state in Federal Court.28 First, Congress may abrogate states immunity by legislatively authorizing such a suit for purposes of enforcing the provisions of the Fourteenth Amendment.29 Secondly, a states sovereign immunity is a personal privilege which it may waive at its pleasure by consenting to the suit.30 Lastly, a narrow exception exists for suits seeking injunctive relief against state officials known as the Ex Parte Young31 doctrine. Despite the existence of these exceptions the Attorney General is entitled to Eleventh Amendment immunity. The Plaintiffs cite two federal laws in support of this Courts jurisdiction over the current matter: 28 U.S.C 1331 and 1343. However, neither law indicates any congressional intent to abrogate a states sovereign immunity.32 Without congressional abrogation the only way for

Delahoussaye v. City of New Iberia, 937 F.2d 144, 146 (5th Cir. 1997) (citing Voisins Oyster House, Inc. v. Guidry, 799 F.2d 183, 185-186 (5th Cir. 1986); See also Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984). 25 Cozzo v. Tangipahoa Parish Council President Government, 279 F.3d 273, 280 (5th Cir. 2002). 26 La. R.S. 13:5106(A). 27 Meyers v. Texas, 410 F.3d 236, 240 (5th Cir. 2005) (citing Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627, 634 (1999)). 28 Id. at 241. 29 Id. (citing Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)). 30 Id. 31 Ex Parte Young, 209 U.S. 123 (1908). 32 The Supreme Court has created a two-part test for determining whether Congress has properly abrogated the states Eleventh Amendment immunity. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); see also Ussery v. State of Louisiana, 150 F.3d 431 (5th Cir. 1998). The first step requires a determination of whether

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Eleventh Amendment immunity not to apply to the Attorney General in this matter, would be if there was direct action on behalf of the State to waive the constitutionally provided immunity. This can be accomplished only if either the State voluntarily invokes Federal Court jurisdiction; or, if the State makes a clear declaration that it intends to submit itself to Federal Court jurisdiction.33 As a general matter, the State of Louisiana nor its officials have waived its sovereign immunity for suits brought in Federal Court.34 The Louisiana Legislature clearly expressed that [n]o suit against the state or a state agency or political subdivision shall be instituted in any court other than a Louisiana state court.35 Therefore, since Louisiana has not voluntarily invoked Federal Court jurisdiction, there must be an individual affirmative waiver of Eleventh Amendment immunity in each matter for the court to have jurisdiction over the claims against the State. Here, the Attorney General does not consent to this suit and herein respectfully declines to waive his sovereign immunity. A very narrow exception to Eleventh Amendment immunity, the Ex Parte Young doctrine exists, but it does not apply in this matter. In order to pierce a state officials Eleventh

Amendment immunity the Ex Parte Young doctrine requires the plaintiffs to seek prospective relief, show the defendants have some connection with the enforcement of the Act, and show the defendants threaten to or commence proceedings to enforce the Act.36 This exception only

Congress unequivocally expresse[d] its intent to abrogate the immunity. Id. at 55 If the intent to abrogate is expressed in unmistakable language in the statute itself, the court must then determine whether Congress acted pursuant to a valid exercise of power. Ussery, 150 F.3d 431, 434 (citations omitted). 33 Id. 34 See Citrano v. Allen Correctional Center, 891 F.Supp. 312 (W.D.La. 1995); Building Engineering Services Co., Inc. v. State of La., 459 F.Supp. 180 (E.D.La. 1978). 35 La. R.S. 13:5106(A). 36 Ex Parte Young, 209 U.S. 123, 155-56 (1908).

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applies when the defendants have the ability to commit the unconstitutional act for which the plaintiffs are seeking an injunction.37 A state officials Eleventh Amendment immunity should be maintained except in rare narrowly defined circumstances. This is important to prevent litigants from misusing the Ex Parte Young exception and suing the incorrect party who do not have a role in the enforcement of the law at issue.38 In assessing whether Ex Parte Young applies to state officials requires a fact intensive inquiry. To reiterate it is the Plaintiffs burden to show this court has subject matter jurisdiction and the Plaintiff must meet all of the Ex Parte Young doctrine requirements in order to pierce the Attorney Generals immunity in this matter. The Attorney General does not have the required connection with the challenged constitutional amendment or the civil code article to pierce his immunity through Ex Parte Young. Although Okapalobi v. Foster,39 is not binding precedent, the en banc court provides excellent insight and a strong persuasive argument in its analysis of Ex Parte Young. There the court held that: the Young principle teaches that it is not merely the general duty to see that the laws of the state are implemented that substantiates the required connections, but the particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty.40 For the Attorney General to have his Eleventh Amendment immunity pierced the he must have the ability to enforce the statute. The Attorney General does not have that ability regarding the provisions at issue in this matter. Nowhere in the Plaintiffs Complaints do they allege the Attorney General has the ability to commit the alleged unconstitutional provisions. Further, nowhere in either provision, Louisiana Constitution Article XII, 15 and Louisiana Civil Code
37 38 39 40

Id. at 158-59; Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001). K.P. v. LeBlanc, 627 F.3d. 115, 124 (5th Cir. 2010). 244 F.3d 405 (5th Cir. 2001). Id. at 416-17 (Emphasis added).

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Article 3520, is the attorney general tasked with enforcement or action. The only connection to these is based on the Attorney Generals general duty to enforce the laws of the state, but that is not enough of a connection for Ex Parte Young to apply.41 Without the ability of the Attorney General to actually commit the unconstitutional act in question, the Plaintiff cannot use the Ex Parte Young exception to pierce the Eleventh Amendment immunity of the Attorney General. The Attorney Generals connection to the provisions in question mirrors that of the Governor in Doe v. Jindal, where this Honorable Court held that Governor Jindals generic constitutional duty as governor to see that laws are faithfully executed (La. Const. art. 4, 5) lacks the Ex Parte Young nexus between the Governor and the alleged unconstitutional act to defeat his sovereign immunity.42 Similarly, in the matter before this Honorable Court, the Attorney Generals generic constitutional duty fails to have the required nexus to pierce his Eleventh Amendment immunity. Even if this Honorable Court were to find that the Attorney General has the required nexus to enforce the provisions at issue, this Honorable Court should still find that the Attorney General is entitled to Eleventh Amendment immunity because the Plaintiffs have not shown that the Attorney General has threatened to or commenced proceedings to enforce the challenged provisions. Nowhere in the Plaintiffs Complaints do they even allege the Attorney General is threatening to or enforcing the challenged provisions. Additionally, even if they alleged the Attorney General was threatening to or enforcing these provisions, as a matter of law he does not have that ability.43 Therefore the Plaintiffs cannot meet the Ex Parte Young exception because the Attorney General is not threatening to or enforcing the challenged provision.

41 42 43

See Louisiana Constitution Article IV, 8; La. R.S. 49:251, et seq. Doe v. Jindal, CIV.A. 11-388, 2011 WL 3925042, *5 (E.D. La. Sept. 7, 2011) (unpublished opinion). See Louisiana Constitution Article IV, 8; La. R.S. 49:251, et seq.

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Additionally there is no policy reason to allow for the Attorney General to be sued in this matter. A common policy reason to allow for the piercing of state officials Eleventh

Amendment immunity is when a plaintiff does not have any other avenue to pursue their grievance, but here the Plaintiffs do have other avenues to raise their grievance other than federal court. This matter could be brought in state court, which is likely the more appropriate forum for a determination of the constitutionality of a Louisiana Civil Code Article and Louisiana Constitutional Amendment. In summary, the Ex Parte Young exception is inapplicable to the case before this Honorable Court. Failure to meet just one of the Ex Parte Young exception requirements prevents the exception from piercing a state officials Eleventh Amendment immunity. Here, two aspects of the Ex Parte Young exception cannot be met. The Attorney General not only has no connection with the enforcement of the provisions at issue but also has not shown any threat or effort to enforce these provisions. Therefore, this Honorable Court should dismiss the

Plaintiffs Complaints as the Attorney General is immune from suit in this matter.

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III.

CONCLUSION WHEREFORE, James D. Buddy Caldwell, in his official capacity as Attorney General

of the State of Louisiana pray that an Order be issued by this Honorable Court which: 1. 2. Grants the Attorney Generals Motion and Dismisses the Plaintiffs Complaint pursuant to Fed. R. Civ. P. 12(b)(1); and For all other legal and equitable remedies available to them.

RESPECTFULLY SUBMITTED, James D. Buddy Caldwell ATTORNEY GENERAL _________/s/ Jessica MP Thornhill___________ Jessica MP Thornhill (La. Bar # 34118) Angelique Duhon Freel (La. Bar # 28561) Assistant Attorneys General Louisiana Department of Justice Civil Division P. O. BOX 94005 Baton Rouge, Louisiana 70804-9005 Telephone: (225) 326-6060 Facsimile: (225) 326-6098

CERTIFICATE OF SERVICE I do hereby certify that a copy of the foregoing pleading has been served upon all counsel of record by the Courts CM/ECF system on this 6th day of November 2013.

________/s/ Jessica MP Thornhill__________ Jessica MP Thornhill

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA JONATHAN P. ROBICHEAUX, ET AL. * CIVIL ACTION NO. 13-CV-05090 * * * Versus * * JAMES D. CALDWELL, LOUISIANA * DISTRICT JUDGE: MLCF ATTORNEY GENERAL * * MAGISTRATE JUDGE: ALC ****************************************************************************** NOTICE OF SUBMISSION

PLEASE TAKE NOTICE that undersigned counsel for James D. Buddy Caldwell, Louisiana Attorney General, in his official capacity will submit for consideration the accompanying Motion to Dismiss for Lack of Subject Matter Jurisdiction before the Honorable Martin L.C. Feldman, United States District Court Judge, Eastern District of Louisiana, 500 Poydras Street, New Orleans, Louisiana on the 27th day of November 2013 at 10 a.m.

RESPECTFULLY SUBMITTED, James D. Buddy Caldwell ATTORNEY GENERAL _________/s/ Jessica MP Thornhill___________ Jessica MP Thornhill (La. Bar # 34118) Angelique Duhon Freel (La. Bar # 28561) Assistant Attorneys General Louisiana Department of Justice Civil Division P. O. BOX 94005 Baton Rouge, Louisiana 70804-9005 Telephone: (225) 326-6060 Facsimile: (225) 326-6098

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CERTIFICATE OF SERVICE I do hereby certify that a copy of the foregoing pleading has been served upon all counsel of record by the Courts CM/ECF system on this 6th day of November 2013.

________/s/ Jessica MP Thornhill__________ Jessica MP Thornhill

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