Brief For The Appellant, Violet Dock Port, Inc., LLC v. Heaphy, No. 19-30993 (5th Cir. Feb. 3, 2020)
Brief For The Appellant, Violet Dock Port, Inc., LLC v. Heaphy, No. 19-30993 (5th Cir. Feb. 3, 2020)
No. 19-30992
Appeal from the United States District Court for the Eastern District of Louisiana,
No. 19-CV-11586, the Hon. Ivan L.R. Lemelle, District Judge, presiding
________________________________________
certifies that the following listed persons and entities, as described in the fourth
sentence of Rule 28.2.1, have an interest in the outcome of this case. These
representations are made in order that the judges of this Court may evaluate possible
disqualification or recusal.
ii
Case: 19-30992 Document: 00515296371 Page: 3 Date Filed: 02/03/2020
iii
Case: 19-30992 Document: 00515296371 Page: 4 Date Filed: 02/03/2020
to private property owners whose property is taken by the government for a public
use. When property is taken, it is common (and indeed required at the time of the
taking of Appellant’s property) for state court litigation to follow to resolve issues
regarding the constitutionality of the taking and amount of compensation that is due.
The issue here is whether there is a federal court remedy under 42 U.S.C. §1983 to
compel a state actor to pay the compensation judgment that was ordered to be paid
by the state court. In other words, when the government refuses to pay the state
court compensation judgment and invokes state statutes and procedures to protect
against collection of the judgment, may the federal courts grant relief to remedy the
Oral argument may assist the Court with understanding the background and
procedural history of this case. Oral argument may also assist the Court when
Hamilton Bank of Johnson City, 473 U.S. 172 (1985), which used to require a
claimant to exhaust state remedies before seeking relief in federal court (which VDP
has done), and Knick v. Twp. of Scott, 139 S. Ct. 2162 (2019), which overruled
iv
Case: 19-30992 Document: 00515296371 Page: 5 Date Filed: 02/03/2020
TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS....................................................... ii
STATEMENT REGARDING ORAL ARGUMENT ..............................................iv
TABLE OF CONTENTS...........................................................................................v
STATEMENT OF JURISDICTION..........................................................................1
A. Introduction......................................................................................................3
B. Factual Background .........................................................................................4
1. The state court litigation between VDP and St. Bernard Port is
complete. ...............................................................................................6
2. VDP sued in federal court after St. Bernard Port failed to pay
the just compensation ordered to be paid by the Louisiana state
courts. ....................................................................................................8
v
Case: 19-30992 Document: 00515296371 Page: 6 Date Filed: 02/03/2020
D. State law does not—and cannot—immunize St. Bernard Port from its
constitutional obligation to pay just compensation. ......................................23
CONCLUSION........................................................................................................26
CERTIFICATE OF COMPLIANCE.......................................................................28
vi
Case: 19-30992 Document: 00515296371 Page: 7 Date Filed: 02/03/2020
TABLE OF AUTHORITIES
Page(s)
Cases
Adam Bros. Farming, Inc. v. Cty. of Santa Barbara,
604 F.3d 1142 (9th Cir. 2010) ............................................................................16
Bragg v. Weaver,
251 U.S. 57 (1919)........................................................................................14, 15
Brown v. Legal Found. of Wash.,
538 U.S. 216 (2003)............................................................................................13
Byrd v. Bates,
220 F.2d 480 (5th Cir. 1955) ..............................................................................25
Campbell v. Wells Fargo Bank, N.A.,
781 F.2d 440 (5th. Cir. 1986) .............................................................................12
Cherokee Nation v. S Kan. Ry. Co.,
135 U.S. 641 (1890)............................................................................................19
Clyce v. Butler,
876 F.3d 145 (5th Cir. 2017) ..............................................................................12
Davis v. Cantrell,
2018 WL 6169255 (E.D. La. Nov. 26, 2018)...................................10, 21, 22, 23
vii
Case: 19-30992 Document: 00515296371 Page: 8 Date Filed: 02/03/2020
Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co.,
313 F.3d 305 (5th Cir. 2002) ..............................................................................25
Guilbeau v. Par. of St. Landry,
2008 WL 4948836 (W.D. La. Nov. 19, 2008),
aff’d, 341 F. App’x 974 (5th Cir. 2009) .................................................10, 21, 22
Jazz Casino Co., L.L.C. v. Bridges,
2016-1663 (La. 5/3/17), 223 So.3d 488..............................................................23
Knick v. Twp. of Scott,
139 S. Ct. 2162 (2019).................................................................................passim
Kurtz v. Verizon N.Y., Inc.,
758 F.3d 506 (2d Cir. 2014) .................................................................................7
Lewis v. Fresne,
252 F.3d 352 (5th Cir. 2001) ..............................................................................12
Maury County v. Porter,
257 S.W.2d 16 (Tenn. 1953) ..............................................................................14
viii
Case: 19-30992 Document: 00515296371 Page: 9 Date Filed: 02/03/2020
St. Bernard Port, Harbor & Terminal Dist. v. Violet Dock Port, Inc.,
LLC, 239 So.3d 243 (La. 2018) ............................................................................7
St. Bernard Port, Harbor & Terminal Dist. v. Violet Dock Port, Inc.,
LLC, 255 So.3d 57 (La. App. 4 Cir. 2018) ...........................................................7
Thomas v. Chevron U.S.A., Inc.,
832 F.3d 586 (5th Cir. 2016) ..............................................................................13
Wileman v. Wade,
665 S.W.2d 519 (Tex. App.—Dallas 1983, no writ)....................................14, 15
Williamson County Regional Planning Comm’n v. Hamilton Bank of
Johnson City, 473 U.S. 172 (1985)............................................................... passim
23 U.S.C. § 402........................................................................................................22
28 U.S.C. § 1291........................................................................................................1
28 U.S.C. § 1331........................................................................................................1
ix
Case: 19-30992 Document: 00515296371 Page: 10 Date Filed: 02/03/2020
28 U.S.C. § 1343........................................................................................................1
42 U.S.C. §1983................................................................................................passim
Fed. R. Civ. P. 12(b)(6)..................................................................................9, 12, 13
x
Case: 19-30992 Document: 00515296371 Page: 11 Date Filed: 02/03/2020
STATEMENT OF JURISDICTION
The district court had subject matter jurisdiction over this Section 1983 case
under 28 U.S.C. §§ 1331 & 1343. The district court entered a final judgment
timely notice of appeal on December 2, 2019. ROA.139. This Court has appellate
1
Case: 19-30992 Document: 00515296371 Page: 12 Date Filed: 02/03/2020
compensation after taking VDP’s property over nine years ago.1 Since the property
was taken, VDP has been litigating against St. Bernard Port through the Louisiana
state court system, pursuing its state remedies for the taking. Nearly a year ago, the
state courts ordered St. Bernard Port to pay significantly more for VDP’s property
than was tendered to VDP in 2010. The state court entered a final judgment against
St. Bernard Port; yet, despite having over $90,000,000.00 in net assets, St. Bernard
Port has not paid it. St. Bernard Port contends that VDP has no right in either state
or federal court to compel payment of that judgment, despite the requirements of the
Fifth and Fourteenth Amendments of the U.S. Constitution. The issue presented is:
Did the district court err when it held as a matter of law that there is no federal
cause of action under 42 U.S.C. § 1983 to compel a state actor to pay the just
entry of a state court judgment setting the amount of compensation that is due?
1
VDP is not appealing or otherwise challenging the dismissal of defendant Drew M. Heaphy.
2
Case: 19-30992 Document: 00515296371 Page: 13 Date Filed: 02/03/2020
A. Introduction
“The Takings Clause of the Fifth Amendment states that ‘private property
[shall not] be taken for public use, without just compensation.’” Knick v. Twp. of
Scott, 139 S. Ct. 2162, 2167 (2019) (emphasis added). “[A] government violates the
Takings Clause when it takes property without compensation.” Id. at 2177. “[A]
property owner may bring a Fifth Amendment claim under § 1983 at that time.” Id.2
Prior to Knick, the Supreme Court required property owners to exhaust state
remedies before seeking relief in federal court, but the Court never held that federal
court relief was unavailable in cases where the state procedures failed to provide just
compensation:
Williamson Cty. Reg’l Planning Comm’n v. Hamilton Ban of Johnson City, 473 U.S.
Here, VDP alleged that St. Bernard Port took VDP’s property, failed to pay
just compensation at the time of the taking, and after VDP exhausted the state
2
The Fifth Amendment directs that “private property” shall not “be taken for public use, without
just compensation.” U.S. Const. amend. V. The Fifth Amendment applies to the states by
operation of the Fourteenth Amendment. See Penn-Central Transp. Co. v. City of New York, 438
U.S. 104, 122-23 (1978).
The Fourteenth Amendment provides that a state shall not “deprive any person of life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV, § 1.
3
Case: 19-30992 Document: 00515296371 Page: 14 Date Filed: 02/03/2020
procedures available to seek just compensation, St. Bernard Port violated VDP’s
constitutional rights once again by failing to pay the just compensation judgment.
The district court expressly recognized that VDP would have stated a viable Section
1983 claim to seek compensation for the taking of its property if this case had arisen
post-Knick. ROA.136. However, the district court held that VDP failed to state a
claim because VDP pursued state court remedies through a final judgment in VDP’s
favor. ROA.135. The fundamental flaw in the district court’s analysis is that VDP
has yet to be justly compensated for the taking of its property. An unpaid paper
judgment is no substitute for the just compensation required by the Fifth and
Fourteenth Amendments.
B. Factual Background
1. St. Bernard Port expropriated VDP’s private port, knowing that
VDP believed St. Bernard Port was grossly undervaluing the
Property.
St. Bernard Port is a principally self-funded political subdivision, with the
authority to tax, issue bonds, and buy and sell property. ROA.9-10 (¶XXI). St.
Bernard Port has over $91 million in net assets. ROA.11 (¶XXIV). It also generates
substantial revenues from using VDP’s former property, including revenues from
customers, like the U.S. Navy, that previously were under contract with VDP.
ROA.9 (¶XX). St. Bernard expropriated VDP’s property in 2010. ROA.6 (¶VI). It
has the financial ability to pay the full amount of the judgment it was ordered to pay
4
Case: 19-30992 Document: 00515296371 Page: 15 Date Filed: 02/03/2020
For several decades before St. Bernard Port took its Property, VDP operated
Violet, Louisiana, downriver from New Orleans. The Property’s unique features—
including one mile of Mississippi River, railroad, and highway frontage, and the five
When St. Bernard Port took VDP’s property, it put VDP out of business.
In 2010, when St. Bernard Port expropriated the property, it deposited $16
million into the registry of the St. Bernard Parish court. ROA.6 (¶VI). St. Bernard
Port knew that VDP believed its Property was worth far in excess of $16 million,
even before St. Bernard Port filed its Petition for Expropriation. ROA.7 (¶X).
Indeed, on September 24, 2010, VDP’s counsel notified St. Bernard Port that VDP’s
improvements alone were valued in excess of $35 million. ROA.7 (¶X). St. Bernard
Port elected to expropriate the Property anyway, and it assured VDP that it could
and would pay any just compensation award rendered in VDP’s favor, even if the
final compensation judgment was tens of millions of dollars more than the $16
the Property, a five-judge panel of the Louisiana Fourth Circuit Court of Appeals
5
Case: 19-30992 Document: 00515296371 Page: 16 Date Filed: 02/03/2020
held that just compensation for the Property was $28,764,685.00—more than
$12 million more than St. Bernard Port’s 2010 deposit—plus interest and
$3,342,626.90 for its attorneys’ fees, expert fees, and costs incurred in the state court
final and executory on February 20, 2019, after the Louisiana Supreme Court denied
It has been more than a year since the Louisiana Fourth Circuit Court of
Appeals increased the amount of compensation due to VDP, and nearly one year
since a final judgment was rendered by the St. Bernard Parish court. Yet St. Bernard
Port has failed to pay the just compensation awarded by the Louisiana courts. As of
July 8, 2019, St. Bernard Port owed VDP $21,609,508.33, with interest accruing at
C. Procedural History
1. The state court litigation between VDP and St. Bernard Port is
complete.
This case has a lengthy procedural history in the Louisiana state courts. When
this dispute began, VDP was bound by the state court exhaustion requirement
imposed by Williamson County, which prevented VDP from directly seeking relief
in federal court until after it had concluded the state court proceedings challenging
6
Case: 19-30992 Document: 00515296371 Page: 17 Date Filed: 02/03/2020
the just compensation award. 3 There are many published opinions in this matter, but
two are particularly noteworthy. On January 30, 2018, the Louisiana Supreme Court
upheld the authority of St. Bernard Port to take VDP’s property, but it vacated the
calculating the amount due to VDP. St. Bernard Port, Harbor & Terminal Dist. v.
Violet Dock Port, Inc., LLC, 239 So.3d 243 (La. 2018). On remand, the Louisiana
Fourth Circuit Court of Appeals issued its opinion greatly increasing the amount of
compensation due to VDP. St. Bernard Port, Harbor & Terminal Dist. v. Violet
Dock Port, Inc., LLC, 255 So.3d 57 (La. App. 4 Cir. 2018). Those opinions provide
a good introduction to this case, including its procedural history through the state
court system.
After final judgment was rendered by the St. Bernard Parish court, VDP made
demand for payment on St. Bernard Port. ROA.9 (¶XIX). VDP also waited for a
reasonable period of time to give St. Bernard Port an opportunity to pay the
judgment. St. Bernard Port did not pay it or take any steps to arrange for payment.
St. Bernard Port’s position has been that there is nothing that VDP could do to
3
Although Williamson County was an inverse condemnation case, federal courts recognized that
its requirements applied to cases involving a physical taking, too. See Kurtz v. Verizon N.Y., Inc.,
758 F.3d 506, 513 (2d Cir. 2014) (“While Williamson County applies to regulatory and physical
takings alike, a physical taking in itself satisfies the need to show finality.”)
7
Case: 19-30992 Document: 00515296371 Page: 18 Date Filed: 02/03/2020
2. VDP sued in federal court after St. Bernard Port failed to pay the
just compensation ordered to be paid by the Louisiana state courts.
While VDP was waiting for payment, the Supreme Court decided Knick v.
Twp. of Scott, 139 S. Ct. 2162 (2019), which overruled Williamson County’s state
court exhaustion requirements, thereby making it easier for a claimant to seek relief
By the time the Knick decision was issued, VDP had already employed the
state court procedures and had already obtained a final judgment in state court
quantifying the just compensation to which it was entitled for the taking of its
Property. Yet, VDP’s compliance with the state procedures did not result in payment
of just compensation. Instead, VDP has been denied just compensation by St.
A paper judgment is not the same as the “just compensation” required by the
Fifth Amendment. VDP does not seek to re-litigate the issues decided in the state
timely pay just compensation once that amount is finally determined. After Knick,
VDP should not be forced to spend several more years in litigation trying to collect
a judgment in state court, as St. Bernard Port attempts to assert every state procedural
roadblock it can to obstruct collection efforts. Under the Supremacy Clause, state
procedural hurdles should not bar collection of a federal court judgment protecting
8
Case: 19-30992 Document: 00515296371 Page: 19 Date Filed: 02/03/2020
VDP sued St. Bernard Port alleging a violation of 42 U.S.C. § 1983 based on
the facts set forth above. ROA.1-13. VDP alleged that: “The duty to pay an award
Amendment of the United States Constitution, as applied to the States through the
14th Amendment, and failure to pay just compensation is a violation of same and 42
U.S.C. § 1983, et seq.” ROA.11. VDP concluded that: “The failure of Defendants
to pay just compensation, pursuant to final adjudication by the Louisiana State courts
12(b)(6). ROA.43. St. Bernard Port argued that the constitutional mandate to pay
(“any such payment is not mandatory and St. Bernard Port has discretion to decide
whether or not to pay for expropriated lands from unappropriated funds under its
control”).
The district court granted St. Bernard Port’s motion on November 23, 2019.
ROA.138. The entirety of the district court’s legal analysis is, as follows:
9
Case: 19-30992 Document: 00515296371 Page: 20 Date Filed: 02/03/2020
10
Case: 19-30992 Document: 00515296371 Page: 21 Date Filed: 02/03/2020
ROA.135-136. The three cases cited in the first paragraph involved attempts to
collect state tort judgments, which have nothing to do with the just compensation
owed under the Constitution following a taking. ROA.135. The district court
offered no additional insight into its reasons for dismissing VDP’s claims with
prejudice, other than to acknowledge that, if VDP’s dispute arose today, VDP would
have had the right to sue directly in federal court, given the change in law effected
by Knick. ROA. 136. VDP appeals the district court’s judgment. ROA.139.
property is taken by the government for public use. Government may not take
property without paying for it. Here, St. Bernard Port has over $90 million in net
assets. It runs business operations that generate millions in revenue, including from
running VDP’s former docks and servicing VDP’s former customers. Yet, St.
Bernard Port has failed and refused to pay the bill for the property that was taken.
proceed through the state court system to exhaust state remedies before a federal
claim would ripen. VDP exhausted those remedies, which took nine years. In place
of its physical property, VDP now has a paper judgment valued at over $20 million,
which has not been paid. Substituting a paper judgment for property taken by the
government is not the just compensation due under the Fifth Amendment. Instead,
11
Case: 19-30992 Document: 00515296371 Page: 22 Date Filed: 02/03/2020
VDP has stated a claim for relief under Section 1983. The district court’s
STANDARD OF REVIEW
This Court conducts a de novo review of the district court’s dismissal of a
complaint under Fed. R. Civ. P. 12(b)(6). See Clyce v. Butler, 876 F.3d 145, 148 (5th
Cir. 2017). The Court must “accept as true all well pleaded facts … and the
Fargo Bank, N.A., 781 F.2d 440, 442 (5th. Cir. 1986). Further, “[a]ll questions of
fact and any ambiguities in the controlling substantive law must be resolved in the
plaintiff’s favor.” Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001). A court ruling
on a Rule 12(b)(6) motion may rely only upon the complaint, its proper attachments,
court may take judicial notice. Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d
757, 763 (5th Cir. 2011) (citing Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338
When considering a motion to dismiss under Rule 12(b)(6), the Court should
not affirm dismissal of a claim unless the plaintiff can prove no set of facts in support
of his claim would entitle him to relief. Alexander v. Verizon Wireless Servs., L.L.C.,
875 F.3d 243, 249 (5th Cir. 2017). A “well-pleaded complaint may proceed even if
12
Case: 19-30992 Document: 00515296371 Page: 23 Date Filed: 02/03/2020
it appears that a recovery is very remote and unlikely.” Bell Atl. Corp. v. Twombly,
reviewed for abuse of discretion, where, as here, the denial of leave to amend was
based solely on futility, this Court instead applies a de novo standard of review
identical in practice to the Rule 12(b)(6) standard. Thomas v. Chevron U.S.A., Inc.,
832 F.3d 586, 590 (5th Cir. 2016). When a party seeks leave from the court to amend
and justice requires it, the district court should freely give it, and refusal to do so is
ARGUMENT
A. VDP stated an actionable claim under 42 U.S.C. § 1983 because the Fifth
Amendment requires payment of just compensation without
unreasonable delay.
Section 1983 provides a federal cause of action for “the deprivation of any
§ 1983. Here, St. Bernard Port’s conduct deprived VDP of its right to just
for some public purpose, it has a categorical duty to compensate the former owner.”
Brown v. Legal Found. of Wash., 538 U.S. 216, 233 (2003) (internal quotation marks
and citation omitted). Although the Supreme Court does not require that payment
precede the taking, it has clarified that a quick taking does not violate due process
13
Case: 19-30992 Document: 00515296371 Page: 24 Date Filed: 02/03/2020
under the Fourteenth Amendment “where adequate provision is made for the certain
U.S. 57, 62 (1919) (emphasis added). Thus, while courts have accepted that just
compensation need not be paid prior to, or at, the exact time of the taking:
[I]t has never been said that just compensation was to be paid for less
than all the property or that it could be paid in installments.
Postponement of the date of payment is often required by judicial
delays, but the taking of property envisages the pledge of the faith of
the nation to make just compensation.
United States v. Bauman, 56 F.Supp. 109, 115 (D. Or.1943); see also Wileman v.
Wade, 665 S.W.2d 519, 520 (Tex. App.—Dallas 1983, no writ) (same); McGibson
v. Roane County Court, 121 S.E. 99, 103 (W. Va. 1924) (where land is taken by
he may have compensation within a reasonable time … he must not be put to risk or
unreasonable delay”); West Virginia Dept. of Highways v. Arbogast, 201 S.E.2d 492,
494-95 (W. Va. 1973) (same); Maury County v. Porter, 257 S.W.2d 16, 17 (Tenn.
1953) (law delaying trial on just compensation until 12 months after the project’s
4
A taking that is declared valid based upon a promise of prompt payment may later be declared
unconstitutional if the government does not keep its promise. See In re Fifth Avenue Coach Lines,
Inc., 219 N.E.2d 410, modified, 221 N.E.2d 174 (N.Y. 1966). In In re Fifth Avenue Coach Lines,
Inc., the city failed to pay just compensation for a taking that had previously been deemed to be
constitutional. At that point, four years later, the Court of Appeals warned the city that the city’s
failure to pay “on alleged statutory grounds” was “verging” on invalidating the taking. 221 N.E.2d
at 742-43. The court declared that the city should “now” pay the judgment, because “[o]nly by
14
Case: 19-30992 Document: 00515296371 Page: 25 Date Filed: 02/03/2020
Just compensation … means exactly what it says, and it means that the
owner himself is entitled to receive his compensation; not that his estate
or his children or his grandchildren are to receive installment payments
and perhaps inherit a law suit in the far future.
United States v. 9.94 Acres of Land in City of Charleston, 51 F.Supp. 478, 483-84
520.
without unreasonable delay.” Bragg, 251 U.S. at 62 (emphasis added). The state
court judgment memorialized and quantified the just compensation to which VDP is
entitled, but it did not result in payment of the compensation that was due.
As a result of St. Bernard Port’s unlawful refusal to pay, VDP is now left
without its Property, without its business, and without any certainty at all that it will
ever be paid just compensation for its property. Although St. Bernard Port contends
that the obligation to pay just compensation is not mandatory, ROA.60, the Fifth
that a Section 1983 claim is available when state actors take private property but fail
to pay the state court judgment establishing the amount of compensation due.
making adequate provision for prompt payment without unreasonable delay do we ensure that the
taking does not contravene or violate the claimants’ right to due process of law guaranteed by our
Constitution....” Id. at 743.
15
Case: 19-30992 Document: 00515296371 Page: 26 Date Filed: 02/03/2020
properly before the federal courts. There is no merit to the district court’s implicit
assumption that VDP may be deprived of its federal remedies, just because VDP
followed the law in existence at the time St. Bernard Port took its property.
a state governmental entity was not ripe until a plaintiff had first exhausted all
procedures and remedies that the state provided. Williamson County, 473 U.S. at
a procedure by which a party may seek just compensation … the plaintiff must seek
relief in state court before bringing a claim in federal court.” Adam Bros. Farming,
Inc. v. Cty. of Santa Barbara, 604 F.3d 1142, 1147-48 (9th Cir. 2010).
By that same holding, the Supreme Court made it clear that it was not barring
the ability to bring a federal claim. See Knick, 139 S.Ct. at 2167 (“The Williamson
16
Case: 19-30992 Document: 00515296371 Page: 27 Date Filed: 02/03/2020
County Court anticipated that if the property owner failed to secure just
compensation under state law in state court, he would be able to bring a ‘ripe’ federal
takings claim in federal court.”). In subsequent cases such as San Remo Hotel,
issues in the federal courts that were already decided in the state courts. San Remo
Hotel, L.P. v. City and Cty of San Francisco, 545 U.S. 323, 347 (2005).
Here, VDP is not seeking to re-litigate any issue decided by the state court.
VDP recognizes that the state court’s holdings on the constitutionality of St. Bernard
Port’s taking and the amount of compensation that is due are binding here. Instead,
exactly what the Williamson County Court anticipated could be done following the
there is nothing in Knick that precludes seeking relief in federal court when state
VDP is aware of no federal court cases that have rejected a Section 1983
claim, such as this one, involving a state actor refusing to pay just compensation
awarded by the state courts. Neither St. Bernard Port nor the district court have cited
Even before Knick, Louisiana federal courts recognized that a Section 1983
action was proper to remedy a local government’s taking of private property, even
17
Case: 19-30992 Document: 00515296371 Page: 28 Date Filed: 02/03/2020
when the taking is reflected by a state court judgment. See, e.g., Vogt v. Board of
(E.D. La. Dec. 5, 2002). In Vogt, the district court held that the Levee District’s
failure to pay a state court judgment awarding just compensation for a taking itself
effected an unconstitutional taking that could be remedied via a Section 1983 action.
In Vogt, the court observed that the Levee District “has not satisfied the [state
court] judgment, and the plaintiffs have been unsuccessful in securing any relief
under Louisiana law.” 2002 WL 31748618, at *4. The court concluded that “[i]t is
evident that just compensation has been denied by the defendants, and, as such, a
violation of the Fifth Amendment of the United States Constitution has occurred,”
and held that the landowner could properly seek relief under Section 1983 “for an
The same result should apply here. St. Bernard Port violated VDP’s Fifth and
Fourteenth Amendment rights when it took VDP’s property, and it violated those
rights once again when St. Bernard Port failed to pay the compensation judgment
issue to remedy the first constitutional violation. Section 1983 is the proper vehicle
Clause is to be taken seriously and not as “‘a poor relation’ among the provisions of
the Bill of Rights.” Knick, 139 S. Ct. at 2169. Knick also reaffirmed that a
landowner “‘is entitled to reasonable, certain and adequate provision for obtaining
compensation’ after a taking.” Id. at 2175 (quoting Cherokee Nation v. S Kan. Ry.
Co., 135 U.S. 641, 659 (1890)). As explained by the Court, “[t]he Framers meant to
prohibit the Federal Government from taking property without paying for it.
the owner … was not what they envisioned.” Id. at 2176 (emphasis in original). For
over a hundred years, the Court has recognized that these rules apply to state actors.
With regard to state law remedies for seeking just compensation, the Court
explained:
Id. at 2171. The Court specifically rejected the view that there are “§ 1983-specific”
19
Case: 19-30992 Document: 00515296371 Page: 30 Date Filed: 02/03/2020
“Catch-22” situation in which they were prevented from ever bringing otherwise
valid Fifth Amendment claims. The Court opined that “Williamson County
held that a property owner must pursue state procedures for obtaining compensation
before bringing a federal suit.” Knick, 139 S. Ct. at 2173. The Court concluded that
burden on takings plaintiffs, conflicts with the rest of our takings jurisprudence, and
claim when the government takes his property without paying for it.” Id. at 2167.
Here, the district court acknowledged that, if Knick “had been issued before
federal court.” ROA. 136. However, it inexplicably failed to recognize that the
same rule applies here. Given that the Supreme Court’s intent in overturning
Amendment takings claims, the district court defied both the letter and the spirit of
Knick by depriving VDP of a federal forum to resolve its Section 1983 claim.
20
Case: 19-30992 Document: 00515296371 Page: 31 Date Filed: 02/03/2020
C. The district court erred by basing its decision on cases involving payment
of a tort judgment rather than takings cases.
The district court erred by relying upon inapplicable personal injury cases
governmental entities. ROA.135 (district court’s Order and Reasons, citing Minton
v. St. Bernard Par. Sch. Bd., 803 F.2d 129, 132 (5th Cir. 1986); Guilbeau v. Par. of
St. Landry, 2008 WL 4948836, at *10 (W.D. La. Nov. 19, 2008), aff’d, 341 F. App’x
974 (5th Cir. 2009); and Davis v. Cantrell, 2018 WL 6169255, at *5 (E.D. La. Nov.
26, 2018)). All three cases hinge upon the applicability of La. Const. Art. XII, § 10
In Minton v. St. Bernard Parish School Board, 803 F.2d 129 (5th Cir. 1986),
supra, plaintiff filed a Section 1983 suit asserting a wide variety of claims arising
out of the School Board’s refusal to pay a tort judgment for personal injuries caused
by a school bus accident. The district court dismissed plaintiff’s suit for failure to
state a claim. Id. at 130. This Court reversed and reinstated the suit, except for
plaintiff’s due process claim. The Court held “that the property right created by a
but merely the recognition of a continuing debt of that government entity.” Id. at
132 (citing a 19th century case involving the collection of a tort judgment, State of
Louisiana ex rel. Folsom v. Mayor, Etc., of the City of New Orleans, 109 U.S. 285
21
Case: 19-30992 Document: 00515296371 Page: 32 Date Filed: 02/03/2020
(1883)). VDP’s rights, however, derive not simply from a judgment, but also from
the Fifth Amendment’s protection against property being taken without just
compensation. The tort claims and judgments at issue in Folsom and Minton
In Guilbeau v. Par. of St. Landry, 2008 WL 4948836, at *10 (W.D. La. Nov.
19, 2008), aff’d, 341 F. App’x 974 (5th Cir. 2009), plaintiff sought payment of a
Defendant sought to dismiss plaintiff’s claims based upon La. R.S. 13:5109 and the
language from Minton discussed above. Plaintiff responded that La. R.S.
13:5109(B)(2) was preempted by the Highway Safety Act of 1966, 23 U.S.C. § 402.
The district court and this Court disagreed, finding the federal statute did not preempt
state law. The district court, although finding the lack of payment to be “troubling”
(Id. at 14), followed Minton and found that there was no right to mandate immediate
Davis v. Cantrell, 2018 WL 6169255, at *5 (E.D. La. Nov. 26, 2018) also
in Minton, and unlike the present case, the court did not grant defendant’s motion to
dismiss in its entirety. It found that plaintiff was entitled to assert an equal protection
because, as the court noted, plaintiff did not seek to collect the judgment; rather, he
challenged the manner in which the city had deviated from its ordinary procedure in
22
Case: 19-30992 Document: 00515296371 Page: 33 Date Filed: 02/03/2020
paying judgments in the order they were rendered. Citing Minton and Freeman
Decorating Co. v. Encuentro Las Americas Trade Corp., 352 F. App’x 921, 924 (5th
Cir. 2009) (which relied on both State of Louisiana ex rel. Folsom and Minton), the
court found that plaintiff had no right to payment of the personal injury at a particular
time. Id. at 11. The court, however, explicitly noted that a federal court will enforce
The district court committed legal error by relying on cases that did not
must have accepted as true St. Bernard Port’s factual assertion made in its Motion
that it had not in fact appropriated funds to pay the judgment.5 By considering facts
that fell outside of the Complaint and its attachments, the district court erred in a
D. State law does not—and cannot—immunize St. Bernard Port from its
constitutional obligation to pay just compensation.
Under Louisiana law, takings judgments are treated differently from tort
judgments. Unlike payment of tort judgments, the constitutional duty to pay just
compensation for the taking of property is not discretionary. See, e.g. Jazz Casino
Co., L.L.C. v. Bridges, 2016-1663 (La. 5/3/17), 223 So.3d 488; Parish of St. Charles
5
VDP timely objected to St. Bernard Port’s asserting facts not properly before the Court. ROA.72.
23
Case: 19-30992 Document: 00515296371 Page: 34 Date Filed: 02/03/2020
v. R.H. Creager, Inc., 10–180 (La. App. 5 Cir. 12/14/10), 55 So.3d 884, writ denied,
cannot use either La. Const. Art. XII, § 10(C) or La. R.S. 13:5109 to avoid their
constitutional obligation to pay for expropriated property. See Baltimore & Ohio R.
Co. v. United States, 298 U.S. 349 (1936) (the just compensation clause “may not
Agriculture, 191 So.3d 512, 516 (Fla. 4th DCA 2016) (rejecting the argument that
trump the constitutional duty to pay just compensation, and clarifying that, while the
For example, in Parish of St. Charles v. R.H. Creager, Inc., 10–180 (La. App.
5 Cir. 12/14/10), 55 So.3d 884, writ denied, 2011–0118 (La. 4/1/11), 60 So.3d 1250,
the Parish argued, as St. Bernard Port did here, that it could not be compelled to pay
an expropriation judgment “unless the money for payment of the judgment has been
specifically allocated.” Id. at 891. The court explicitly rejected this argument,
holding that the trial court erred “by failing to consider that this matter does not
involve a money judgment obtained against the Parish as the result of an action
brought against the Parish in a tort or contract action;” rather it “results from an
action taken pursuant to the Parish’s power of eminent domain.” Id. at 890. The
court concluded that this distinction “requires a different analysis and outcome.” Id.
24
Case: 19-30992 Document: 00515296371 Page: 35 Date Filed: 02/03/2020
These authorities further confirm that the district court erred by relying upon
a line of cases addressing the ability to collect upon state court tort judgments.
every opportunity to the plaintiff to state a claim upon which relief might be
granted.” Byrd v. Bates, 220 F.2d 480, 482 (5th Cir. 1955); see also Great Plains
Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002)
(recognizing that district courts commonly “afford plaintiffs at least one opportunity
Dismiss, VDP stated its belief that its claims were adequately pleaded, but requested
leave to amend if the Court disagreed. ROA. 91. The district court erred in
25
Case: 19-30992 Document: 00515296371 Page: 36 Date Filed: 02/03/2020
CONCLUSION
The Fifth Amendment does not leave payment of just compensation to the
government’s discretion to pay whenever it feels like it, if at all. St. Bernard Port’s
position that it can pay the just compensation awards whenever it wishes is a
without unreasonable delay. As such, the district court’s final judgment of dismissal
with prejudice is not legally sound, does not withstand constitutional scrutiny, and
should be reversed. This case should be remanded to the district court for further
proceedings.
Respectfully submitted,
26
Case: 19-30992 Document: 00515296371 Page: 37 Date Filed: 02/03/2020
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been served upon
counsel for all parties to this proceeding as identified below through the court’s
electronic filing system as follows:
27
Case: 19-30992 Document: 00515296371 Page: 38 Date Filed: 02/03/2020
28
Case: 19-30992 Document: 00515296384 Page: 1 Date Filed: 02/03/2020
No. 19-30992
Appeal from the United States District Court for the Eastern District of Louisiana,
No. 19-CV-11586, the Hon. Ivan L.R. Lemelle, District Judge, presiding
________________________________________
TABLE OF CONTENTS
TAB ROA
1 Docket Sheet ............................................................................ ROA.1-4
2 Notice of Appeal ...................................................................... ROA.139
2
Case: 19-30992 Document: 00515296384 Page: 3 Date Filed: 02/03/2020
Respectfully submitted,
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been served upon
counsel for all parties to this proceeding as identified below through the court’s
3
Case: 19-30992 Document: 00515296384 Page: 4 Date Filed: 02/03/2020
TAB 1
Case: 19-30992 Document: 00515296384 Page: 5 Date Filed: 02/03/2020
APPEAL,CLOSED
Jump to Docket Table
Mary N. Bennett
Smith & Fawer, LLC (New Orleans)
201 St. Charles Ave
Suite 3702
New Orleans, LA 70170
504-525-2200
Email: [email protected]
ATTORNEY TO BE NOTICED
V.
Defendant
Drew M. Heaphy represented by James M. Garner
in his capacity as Executive Director of St. Sher, Garner, Cahill, Richter, Klein &
Bernard Port, Harbor & Terminal District Hilbert, LLC
909 Poydras St.
19-30992.1
Case: 19-30992 Document: 00515296384 Page: 6 Date Filed: 02/03/2020
28th Floor
Suite 2800
New Orleans, LA 70112-1033
504-299-2100
Email: [email protected]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Defendant
St. Bernard Port, Harbor & Terminal represented by James M. Garner
District (See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
07/09/2019 1 (p.5) COMPLAINT against All Defendants (Filing fee $ 400 receipt number
053L-7745044) filed by Violet Dock Port, Inc., L.L.C. (Attachments: # 1 (p.5)
Exhibit 1, # 2 Exhibit 2, # 3 (p.31) Civil Cover Sheet, # 4 (p.35) Summons St.
Bernard Port, # 5 (p.37) Summons Heaphy)Attorney Randall A. Smith added to party
Violet Dock Port, Inc., L.L.C.(pty:pla).(Smith, Randall) Modified text on 7/11/2019
19-30992.2
Case: 19-30992 Document: 00515296384 Page: 7 Date Filed: 02/03/2020
07/09/2019 2 Initial Case Assignment to Judge Ivan L.R. Lemelle and Magistrate Judge Dana
Douglas. (cc) (Entered: 07/09/2019)
07/11/2019 3 (p.31) Summons Issued as to Drew M. Heaphy and St. Bernard Port, Harbor & Terminal
District. (Attachments: # 1 (p.5) Summons)(jls) (Entered: 07/11/2019)
07/16/2019 4 (p.35) SUMMONS Returned Executed; Drew M. Heaphy served on 7/15/2019, answer due
8/5/2019. (Smith, Randall) (Entered: 07/16/2019)
07/16/2019 5 (p.37) SUMMONS Returned Executed; St. Bernard Port, Harbor & Terminal District served
on 7/15/2019, answer due 8/5/2019. (Smith, Randall) (Entered: 07/16/2019)
08/05/2019 7 (p.42) ORDER: IT IS ORDERED that the 6 (p.39) motion is GRANTED. Defendants shall
file responsive pleadings no later than August 26, 2019. Signed by Judge Ivan L.R.
Lemelle on 08/05/2019. (am) (Entered: 08/05/2019)
08/26/2019 8 (p.43) MOTION to Dismiss for Failure to State a Claim by Drew M. Heaphy, St. Bernard
Port, Harbor & Terminal District. Motion(s) will be submitted on 9/11/2019.
(Attachments: # 1 (p.5) Memorandum in Support, # 2 Notice of Submission)(Garner,
James) (Entered: 08/26/2019)
09/03/2019 9 (p.69) RESPONSE/MEMORANDUM in Opposition filed by Violet Dock Port, Inc., L.L.C.
re 8 (p.43) MOTION to Dismiss for Failure to State a Claim . (Smith, Randall)
(Entered: 09/03/2019)
09/13/2019 13 ORDER granting 12 (p.107) Motion for Leave to File Reply. Signed by Judge Ivan
(p.120) L.R. Lemelle on 9/11/19. (ko) (Entered: 09/13/2019)
09/13/2019 14 REPLY to Response to Motion filed by Drew M. Heaphy, St. Bernard Port, Harbor &
(p.121) Terminal District re 8 (p.43) MOTION to Dismiss for Failure to State a Claim . (ko)
(Entered: 09/13/2019)
11/25/2019
19-30992.3
Case: 19-30992 Document: 00515296384 Page: 8 Date Filed: 02/03/2020
15 ORDER AND REASONS granting 8 (p.43) Motion to Dismiss for Failure to State a
(p.131) Claim. Signed by Judge Ivan L.R. Lemelle on 11/23/19. (ko) (Entered: 11/25/2019)
11/25/2019 16 JUDGMENT entered in favor of St. Bernard Port, Harbor & Terminal District, Drew
(p.138) M. Heaphy against Violet Dock Port, Inc., L.L.C. Signed by Judge Ivan L.R. Lemelle
on 11/23/19.(ko) (Entered: 11/25/2019)
12/02/2019 17 NOTICE OF APPEAL re 16 (p.138) Judgment by Violet Dock Port, Inc., L.L.C.
(p.139) (Filing fee $ 505, receipt number ALAEDC-8001944.) (Smith, Randall) Modified
text/link on 12/3/2019 (pp). (Entered: 12/02/2019)
12/02/2019 18 APPEAL TRANSCRIPT REQUEST by Violet Dock Port, Inc., L.L.C. re 17 (p.139)
(p.140) Notice of Appeal. (Transcript is unnecessary for appeal purposes) (Smith, Randall)
(Entered: 12/02/2019)
19-30992.4
Case: 19-30992 Document: 00515296384 Page: 9 Date Filed: 02/03/2020
TAB 2
Case: 19-30992 Document: 00515296384 Page: 10 Date Filed: 02/03/2020
NOTICE OF APPEAL
Notice is hereby given that Plaintiff, Violet Dock Port, Inc., L.L.C. (“VDP”), appeals to the
United States Court of Appeals for the Fifth Circuit from the final Judgment of dismissal with
RESPECTFULLY SUBMITTED:
19-30992.139
Case: 19-30992 Document: 00515296384 Page: 11 Date Filed: 02/03/2020
TAB 3
Case: 19-30992 Document: 00515296384 Page: 12 Date Filed: 02/03/2020
JUDGMENT
reasons. Accordingly,
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
19-30992.138
Case: 19-30992 Document: 00515296384 Page: 13 Date Filed: 02/03/2020
TAB 4
Case: 19-30992 Document: 00515296384 Page: 14 Date Filed: 02/03/2020
Rec. Doc. 9. Defendant then sought, and was granted, leave to file
19-30992.131
Case: 19-30992 Document: 00515296384 Page: 15 Date Filed: 02/03/2020
Dock argued the $16 million amount deposited by St. Bernard Port
3. The state trial court sided with St. Bernard Port and awarded
and costs, plus judicial interest from the date of the entry of
19-30992.132
Case: 19-30992 Document: 00515296384 Page: 16 Date Filed: 02/03/2020
under the state courts’ judgments after subtracting the $16 million
$2,298.06. Id. at 5.
Varela v. Gonzalez, 773 F.3d 704, 707 (5th Cir. 2014) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible when the plaintiff pleads facts that allow the
liable for the misconduct alleged.” Id. A court must accept all
228, 232 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th
Cir. 1996). However, the court is not bound to accept as true legal
296 F.3d 376, 378 (5th Cir. 2002). When deciding whether a
19-30992.133
Case: 19-30992 Document: 00515296384 Page: 17 Date Filed: 02/03/2020
Ingredients, Inc. v. SnoWizard, Inc., 833 F.3d 512, 520 (5th Cir.
A. § 1983 Claims
Dall. Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir.1998). “To
rel. Latasha A. v. Houston Indep. Sch. Dist., 629 F.3d 450, 456
between what was alleged in the complaint and what plaintiff claims
19-30992.134
Case: 19-30992 Document: 00515296384 Page: 18 Date Filed: 02/03/2020
2008 WL 4948836, at *10 (W.D. La. Nov. 19, 2008), aff'd, 341 F.
App'x 974 (5th Cir. 2009) (citing Minton v. St. Bernard Par. Sch.
Bd., 803 F.2d 129, 132 (5th Cir. 1986)); Davis v. Cantrell, 2018
the grounds that the judgments in those cases did not involve
19-30992.135
Case: 19-30992 Document: 00515296384 Page: 19 Date Filed: 02/03/2020
2177, (2019) does not alter this ruling. Knick overruled the state-
the Court held that “pursuit of a remedy in federal court need not
remedies while Williamson was still the law of the land. Rec. Doc.
9 at 10. The Court recognizes that if Knicks had been issued before
action.
19-30992.136
Case: 19-30992 Document: 00515296384 Page: 20 Date Filed: 02/03/2020
256 F.3d 349, 355 (5th Cir. 2001); Winn v. New Orleans City, 2014
damage claims against the St. Bernard Port and Heaphy in his
Davis v. W. Cmty. Hosp., 755 F.2d 455, 459,467 (5th Cir. 1985);
Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099 (1985).
futile in this case, because additional facts would not remedy the
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
19-30992.137
Case: 19-30992 Document: 00515296384 Page: 21 Date Filed: 02/03/2020
TAB 5
Case: 19-30992 Document: 00515296384 Page: 22 Date Filed: 02/03/2020
19-30992.14
Case: 19-30992 Document: 00515296384 Page: 23 Date Filed: 02/03/2020
19-30992.15
Case: 19-30992 Document: 00515296384 Page: 24 Date Filed: 02/03/2020
19-30992.16
Case: 19-30992 Document: 00515296384 Page: 25 Date Filed: 02/03/2020
19-30992.17
Case: 19-30992 Document: 00515296384 Page: 26 Date Filed: 02/03/2020
19-30992.18
Case: 19-30992 Document: 00515296384 Page: 27 Date Filed: 02/03/2020
19-30992.19
Case: 19-30992 Document: 00515296384 Page: 28 Date Filed: 02/03/2020
19-30992.20
Case: 19-30992 Document: 00515296384 Page: 29 Date Filed: 02/03/2020
19-30992.21
Case: 19-30992 Document: 00515296384 Page: 30 Date Filed: 02/03/2020
19-30992.22
Case: 19-30992 Document: 00515296384 Page: 31 Date Filed: 02/03/2020
19-30992.23
Case: 19-30992 Document: 00515296384 Page: 32 Date Filed: 02/03/2020
TAB 6
Case: 19-30992 Document: 00515296384 Page: 33 Date Filed: 02/03/2020
19-30992.24
Case: 19-30992 Document: 00515296384 Page: 34 Date Filed: 02/03/2020
19-30992.25