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L & L Construction Services, L.L.C. v. Falgout

United States District Court, S.D. Mississippi, Southern Division

August 14, 2019

L & L CONSTRUCTION SERVICES, L.L.C., AND KEITH MARQUAR PLAINTIFFS
v.
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 [19] [32] PLAINTIFFS' AMENDED COMPLAINT [18], AND GRANTING PLAINTIFFS LEAVE TO AMEND

          HALIL SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are Defendants City of Bay St. Louis, Mississippi, and Mayor Mike Favre's Motion to Dismiss [19], and Defendant Lonnie Falgout's Motion to Dismiss [32] Plaintiffs L & L Construction Services, L.L.C., and Keith Marquar's Amended Complaint [18].[1] These Motions are fully briefed. The Court finds that Defendants' Motions [19] [32] 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.

         I. BACKGROUND

         A. Relevant factual and procedural history

         Plaintiffs 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. [18] 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 interstate ecommerce.

Id. at 4.

         Plaintiffs 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.

         Plaintiffs filed a Complaint [1] in this Court on April 27, 2018, followed by an Amended Complaint [18] on August 19, 2018. Am. Compl. [18] 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. [18] at 16-17.

         B. Defendants City of Bay St. Louis and Mayor Favre's Motion to Dismiss [19]

         Defendants 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 [19] 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. [20] 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 [1] at 1; Mem. in Supp. [20] 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. [20] 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.

         Plaintiffs' 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 [28] 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 [28] 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.

         C. Defendant Falgout's Motion to Dismiss [32]

         In his Motion to Dismiss [32], 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 [32] at 1 & n.1. Mr. Falgout further asserts that Plaintiffs have failed to proffer sufficient facts to support a claim against ...


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