United States District Court, S.D. Mississippi, Southern Division
L & L CONSTRUCTION SERVICES, L.L.C., AND KEITH MARQUAR PLAINTIFFS
LONNIE FALGOUT, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A COUNCILMAN FOR THE CITY OF BAY ST. LOUIS, MISSISSIPPI; MIKE FAVRE, IN HIS CAPACITY AS MAYOR OF THE CITY OF BAY ST. LOUIS, MISSISSIPPI; AND, CITY OF BAY ST. LOUIS, MISSISSIPPI DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING WITHOUT PREJUDICE IN PART DEFENDANTS' MOTIONS TO
DISMISS   PLAINTIFFS' AMENDED COMPLAINT , AND
GRANTING PLAINTIFFS LEAVE TO AMEND
SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE
THE COURT are Defendants City of Bay St. Louis, Mississippi,
and Mayor Mike Favre's Motion to Dismiss , and
Defendant Lonnie Falgout's Motion to Dismiss 
Plaintiffs L & L Construction Services, L.L.C., and Keith
Marquar's Amended Complaint . These Motions are fully
briefed. The Court finds that Defendants' Motions 
 should be granted in part and denied without prejudice
in part. Plaintiffs' official capacity claims against
Defendants Mayor Mike Favre and Lonnie Falgout, and
Plaintiffs' punitive damages against the City of Bay St.
Louis, Mississippi, will be dismissed.
Relevant factual and procedural history
L & L Construction Services, L.L.C. (“L &
L”), and Keith Marquar (“Marquar” or
jointly “Plaintiffs”) were hired by Mr. Wayne
McCants to construct a bulkhead and pier on Mr. McCants'
property located at 144 Elaine Drive, Bay St. Louis,
Mississippi. Am. Compl.  at 3. At the time, Defendant
Lonnie Falgout (“Falgout”), who was a City
Councilman for the City of Bay St. Louis, owned the adjacent
real property located at 146 Elaine Drive, Bay St. Louis,
Mississippi, and objected to the construction project. Mr.
Falgout allegedly filed objections with Mississippi
Department of Marine Resources (“MDMR”) and the
Army Corps of Engineers (“ACOE”) in an attempt to
stop the project. Id. When that approach did not
succeed, Mr. Falgout allegedly
set forth on a course of action to use the color of law, the
power and authority given to him as a [City of] Bay St. Louis
councilman, to erect barriers to interstate trade and to the
[sic] deprive Marquar and L & L of the rights,
privileges, or immunities secured to them by the Constitution
of the United States of America and its many laws regulating
Id. at 4.
further allege that Mr. Marquar, on behalf of himself and L
& L and in an attempt to have the City of Bay St. Louis
officially intercede and stop Mr. Falgout from harassing its
citizens, repeatedly spoke with City officials, met with the
Mayor, the City Attorney and City Council members, and also
attended City Council meetings. Id. at 6-7.
filed a Complaint  in this Court on April 27, 2018,
followed by an Amended Complaint  on August 19, 2018. Am.
Compl.  at 1-17. The Amended Complaint advances claims
against Defendant Falgout in both his individual and official
capacities, and claims against Defendants the City of Bay St.
Louis, Mississippi (“City of Bay St. Louis”), and
Mayor Mike Favre (“Favre”) in his official
capacity. Id. Plaintiffs assert causes of action
pursuant to 42 U.S.C. § 1983 and state law against
Defendants for: (1) “Unconstitutional use of position
as City Councilman to Interfere with and destroy the
business, ” of Plaintiffs, id. at 7-10; (2)
“Assault and Battery, ” id. at 11-12;
(3) “Libel, ” id. at 12-14; and (4)
“Slander, ” id. at 14-15. Plaintiffs
allege that the actions taken by Mr. Falgout were under the
color of state law and were ratified by the City of Bay St.
Louis. Id. at 3-7. Plaintiffs seek compensatory
damages in the amount of $2, 500, 000.00, punitive damages in
the amount of $2, 000, 000.00, and costs and attorneys'
fees against all Defendants, jointly and severally. Am.
Compl.  at 16-17.
Defendants City of Bay St. Louis and Mayor Favre's
Motion to Dismiss 
City of Bay St. Louis and Mayor Favre have filed a Motion to
Dismiss Plaintiffs' Amended Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). Mot. to Dismiss  at
1-2. They assert that Plaintiffs' “civil rights
lawsuit” fails to state a claim upon which relief may
be granted. Id.; Mem. in Supp.  at 1-9. In a
footnote, Defendants point out that the official capacity
claims asserted against Mayor Favre and Mr. Falgout are
tantamount to claims against the City of Bay St. Louis itself
and should be dismissed as duplicative. Mot. to Dismiss 
at 1; Mem. in Supp.  at 1. Defendants next contend that
the claims against the City should be dismissed because
Plaintiffs have failed to plead facts that could plausibly
support a 42 U.S.C. § 1983 claim. Specifically,
Plaintiffs have not identified (1) the existence of an
official policy, (2) which was promulgated by a final
policymaker, and (3) that was the moving force behind any
alleged constitutional violations. Mem. in Supp.  at 5-7.
Defendants also argue that Plaintiffs' state law claims
are meritless and that the punitive damages claims are not
viable as asserted against the City of Bay St. Louis, such
that they should be dismissed. Id. at 7-9.
Response posits that the City of Bay St. Louis cannot escape
municipal liability because the City Council had actual or
constructive knowledge that Mr. Falgout was violating
Plaintiffs' constitutional rights but “failed to
carry out their duty to correct them.” Resp. in
Opp'n  at 4-7 (quoting O'Quinn v.
Manuel, 773 F.2d 605, 608-09 (5th Cir. 1985)).
Plaintiffs concede, however, that punitive damages are not
viable against Defendant City of Bay St. Louis. Resp. in
Opp'n  at 7. Plaintiffs ask that the Motion to
Dismiss be denied, or alternatively, that they be granted
leave to amend their Amended Complaint. Id. at 8-9.
Defendant Falgout's Motion to Dismiss 
Motion to Dismiss , Defendant Falgout contends that the
official capacity claims against him are duplicative of the
claims against the City of Bay St. Louis and should be
dismissed pursuant to Rule 12(b)(6). Mot. to Dismiss  at
1 & n.1. Mr. Falgout further asserts that Plaintiffs have
failed to proffer sufficient facts to support a claim against