CARL J. BARBIER, UNITED STATES DISTRICT JUDGE.
Before the Court are several motions. First, Plaintiffs filed a Motion to Continue
This case arises from the New Orleans City Council's ("City Council") decision to remove three monuments honoring Confederate leaders and a fourth commemorating an 1874 battle between the White League and the City of New Orleans' first integrated police force. This litigation's procedural history is contained in the Court's previous Orders and Reasons. See, e.g., (R. Doc. 151; R. Doc. 135; R. Doc. 58; R. Doc. 49). In short, in June of 2015, New Orleans' Mayor, Mitchell J. Landrieu, called upon the City Council to initiate the process of removing these four public monuments. After following the requisite procedures, in December of 2015, the City Council affirmatively voted to remove the monuments, and an ordinance was signed into law. Plaintiffs then filed suit seeking a temporary injunction, preliminary injunction, and permanent injunction enjoining the City from removing and relocating the monuments. On January 26, 2016, this Court denied Plaintiffs' request for an injunction,
Presently before the Court are motions to dismiss Plaintiffs' remaining claims as to the General Robert E. Lee Monument, the P.G.T. Beauregard Monument, and the Jefferson Davis Monument (collectively, "the Monuments"). Defendants, in general, argue that Plaintiffs do not have a protected interest in the Monuments and cannot prevent the City from removing them. In response, Plaintiffs raise various arguments but ultimately assert that they have a protected property interest in the Monuments, and that this Court should defer ruling on the motions until discovery is completed. The motions are now before the Court on the briefs and without oral argument.
Plaintiffs contend that this "Court has not permitted [them] to conduct any discovery whatsoever." Plaintiffs assert that they need additional discovery on nearly all of their claims. As to their National Historic Preservation Act ("NHPA") and Department of Transportation Act ("DOT Act") claims, they assert that "the federal defendants and the City of New Orleans have been cooperating for decades to create a single, unified, comprehensive streetcar network in New Orleans." Plaintiffs essentially argue that any work performed on any portion of any streetcar line in New
Plaintiffs also seek additional discovery on their Veterans Memorial Preservation and Recognition Act ("VMPRA") claim. Specifically, Plaintiffs seek to determine whether there is any evidence to indicate that the figures atop the Monuments honor a member of the United States Military. Plaintiffs argue that if any evidence exists, it would support their claim that the Monuments may not be removed.
As to their claims against the City, Plaintiffs argue that the City did not comply with § 146-611 of the New Orleans City Code when it solicited input from the Historic District Landmarks Commission ("HDLC"). Plaintiffs contend that the HDLC "did not have jurisdiction over the Lee Monument" and that the City "sought to politicize [removal of the Monuments] by frequent reference to the reasons the monuments were built and the motives of the individuals who erected them." Plaintiffs argue that they should be permitted discovery into the "motives of the individuals and associations of individuals" who erected the Monuments. Similarly, Plaintiffs seek discovery on the reports the City Council relied upon in reaching their conclusion that the Monuments constitute a "nuisance" under § 146-611 of the New Orleans City Code.
Plaintiffs further assert that the City violated its own policy on donations by "hiding" the source of funds it will use to pay to remove the Monuments. Plaintiffs seek discovery on the source of the funds that will be used to remove the Monuments and whether such funds are federal in nature.
Plaintiffs seek additional discovery on whether they have a property interest in the Monuments. Plaintiffs contend that they have a property interest through the Louisiana doctrine of negotiorum gestio. Further, they seek discovery on whether any other individual or organization owns or possesses a property interest in the Monuments.
Finally, Plaintiffs seek additional discovery on their equal protection claim. In particular, Plaintiffs seek to further investigate whether "the City of New Orleans treated one group of citizens (those who called for removal of the Lee, Davis, Beauregard and Liberty Place Monuments) differently than the City treated another group (those who called for removal of the Jackson Monument in Jackson Square)." Plaintiffs argue that "[t]here are disputed material facts as to whether the City discriminated against monuments (as it claims) or whether it discriminated against citizens, as argued by plaintiffs." Plaintiffs also argue that they should be permitted additional discovery "regarding the evolution" Article XII, § 4 of the Louisiana
The Federal Defendants and the City argue, inter alia, that Plaintiffs are not entitled to additional discovery pursuant to Federal Rule of Civil Procedure 56(d). Among other reasons, Defendants contend that Plaintiffs failed to explain with specificity how the requested discovery will create genuine disputes of material fact to defeat summary judgment. Defendants argue that Plaintiffs seek discovery almost exclusively on a theory of streetcar segmentation and "integration" that this Court has already analyzed and rejected. Further, the Federal Defendants argue that they seek to dismiss Plaintiffs' claims related to one particular streetcar project, the Loyola Avenue/Union Passenger Terminal route ("Loyola/UPT"), for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Thus, they argue Rule 56(d) should not prevent this Court from rendering a determination on that claim. Defendants also contend that the disputed issues in this case are primarily of law, not disputed fact, and therefore no discoverable facts would change the Court's conclusions of law. Finally, Defendants contend that the requested discovery, in total, is immaterial to the issues the Court must decide as a matter of law.
Federal Defendants argue that this Court lacks subject matter jurisdiction to evaluate the merits of Plaintiffs' untimely challenge to certain impact findings published in 2011. Specifically, the Federal Defendants contend that the FTA published its finding from the environmental studies on the Loyola/UPT project in January of 2011. Therefore, Federal Defendants contend that Plaintiffs' challenges regarding the Loyola/UPT project are barred by the statute of limitations and should be dismissed.
Further, as to Plaintiffs' remaining claims, the Federal Defendants argue that there is no genuine issue of material fact that federal funding for streetcar projects does not have any impact, positive or negative, on the City's plan to remove the Monuments. Federal Defendants contend that removing the Monuments has no relation to New Orleans' streetcar projects. For these reasons, Federal Defendants argue that Plaintiffs' remaining claims should be dismissed with prejudice.
Plaintiffs first argue that they were not permitted to conduct discovery, and thus the Federal Defendants' motion should be denied. Second, Plaintiffs argue that the Loyola/UPT project is "one part of a multi-phase, multi-year effort to construct a unified comprehensive light rail ... network in New Orleans." Plaintiffs argue that if this is true, then Plaintiffs' claim is not time barred and this Court has jurisdiction to entertain it. Finally, as to Federal Defendants' motion for summary judgment, Plaintiffs again argue that they should be permitted to conduct discovery that will prove their allegations.
The City argues that all of Plaintiffs' claims as to the Monuments should be
As to Plaintiffs' equal protection claim, the City argues that Plaintiffs have failed to state a valid equal protection claim because the Monuments Ordinance and the Monuments' removal apply equally to all classes of citizens, and the City is not forced to remove all offensive statues at once. As to Plaintiffs' due process claims, the City argues that Plaintiffs do not have a constitutionally protected property interest in the Monuments and thus do not have a substantive or procedural due process claim. Further, Plaintiffs participated in many, if not all, of the meetings regarding the City's decision to remove the Monuments.
Finally, the City urges the Court to retain supplemental jurisdiction over Plaintiffs' pendent state-law claims and dismiss them with prejudice. The City contends that Plaintiffs cannot demonstrate that removing the Monuments will infringe upon their right to preserve, foster, and promote their historic, linguistic, and cultural origins. Therefore, the City argues that Plaintiffs' claims under Article XII, § 4 of the Louisiana Constitution should be dismissed. The City further contends that Plaintiffs cannot demonstrate that the City Council was "arbitrary and capricious" in its decision to remove the Monuments. Therefore, the City argues that this Court should not disrupt the City Council's decision to remove the Monuments. As to the alleged violation of the City's donation policy, the City argues that this claim is moot because Foundation for Louisiana, a non-profit corporation, is donating the funds to remove the Monuments, and the donation is documented by an act of donation. Accordingly, for all of these reasons, the City asks this Court to dismiss Plaintiffs' remaining claims with prejudice.
Plaintiffs' response only addresses "the points at which [Plaintiffs believe] the Court erred in accepting arguments proffered by the City of New Orleans and its Mayor, Mitchell J. Landrieu." Plaintiffs response does not address any of the arguments as to why Plaintiffs' federal statutory claims, equal protection claim, Article XII, § 4 of the Louisiana Constitution claim, city donation policy claim, and § 146-611 of the New Orleans City Code claim should be dismissed. In short, Plaintiffs argue that they have a protected property interest in the Monuments under the Louisiana doctrine negotiorum gestio, and that the City does not own the Beauregard Equestrian Monument.
The common refrain throughout Plaintiffs' submissions is that "[t]his Court has not permitted [them] to conduct any discovery." See (R. Doc. 67-1; R. Doc. 70;
Plaintiffs contend that they need additional discovery to support their DOT Act and NHPA claims. This Court's Order and Reasons denying Plaintiffs' motion for a preliminary injunction summarized Plaintiffs' DOT Act claims as follows:
Monumental Task Comm., Inc. v. Foxx, 157 F.Supp.3d 573, 586 (E.D. La. 2016). Plaintiffs also allege that "the Federal Defendants violated the NHPA by failing to conduct a section 106 review to determine whether the planning, funding, construction, and maintenance of all phases of the streetcar network in New Orleans has the potential to cause adverse effects on historic properties adjacent to any of the streetcar lines, such as the monuments." Id. at 590.
This Court previously held that Plaintiffs failed to demonstrate a likelihood of success on the merits of their DOT Act and NHPA claims. Id. at 590-91. On appeal, Plaintiff-Appellants argued that their DOT Act and NHPA claims were likely to be meritorious because the DOT and FTA "planned, funded, constructed and maintain the numerous streetcar lines in New Orleans as a single, comprehensive network still under construction." Further, Plaintiff-Appellants argued that if the streetcar lines constitute a single, ongoing project or undertaking, then the City cannot damage or destroy the Monuments. Despite these arguments, identical to those raised here, the Fifth Circuit affirmed this Court's previous decision specifically holding that Plaintiffs "failed to present a prima facie case in support of their" DOT Act and NHPA claims. Chao, 678 Fed.Appx. at 252. Further, the Fifth Circuit made clear that there was "no chance" Plaintiffs would eventually prevail on the merits of these claims. Id. at 252 n.1.
The DOT Act aims to prevent federally-funded transportation projects from unnecessarily harming historic sites. See Save Barton Creek Ass'n v. Fed. Highway Admin., 950 F.2d 1129, 1141 (5th Cir. 1992) (noting that section (4) of the DOT Act generally prohibits the use of federal funds to build highways through parks of local significance). Section 4(f) of the DOT Act, now codified at 49 U.S.C. § 303(c), provides that the Secretary of Transportation may approve a transportation project that uses land from a historic site only if the Secretary determines, first, that there is "no prudent and feasible alternative" to using that land and, second, that the project includes "all possible planning to minimize harm" to the historic site resulting from the use. 49 U.S.C. § 303(c). Section 4(f) does not apply to locally-funded projects. See Riverfront Garden Dist. Ass'n, Inc. v. City of New Orleans, 2000 WL 35801851, at *10 (E.D. La. Dec. 11, 2000) ("The locally funded portion [of the project] is not covered by the [DOT Act]."). Further, Section 4(f) only applies if a federally-funded transportation project "uses" a historic site. Neighborhood Ass'n of the Back Bay, Inc. v. Fed. Transit Admin., 463 F.3d 50, 55 (1st Cir. 2006). A "use" of section 4(f) property occurs (1) when "land is permanently incorporated into a transportation facility"; (2) when "there is a temporary occupancy of land that is adverse
Three of the six transportation projects listed by Plaintiffs — (1) the proposed streetcar line along North Rampart Street; (2) the proposed streetcar line along St. Claude Avenue; and (3) the proposed construction of the downtown transportation hub in the Central Business District — have not been approved, nor federally funded, by either the DOT or the FTA. (R. Doc. 21-1, at 3-4.) Further, the Loyola/UPT project, the Cemeteries Transit Center, and the refurbishment of the St. Charles Avenue streetcar line — all federally funded projects — were subject to section 4(f) reviews, and such reviews determined that each project would have a de minimis impact on historic property.
Plaintiffs' NHPA claims fail for similar reasons. Plaintiffs have failed to demonstrate any nexus between a federally-funded project or undertaking and the removal of the Monuments. And, "[u]nless the City's efforts to remove the [Monuments] are either federally funded or federally licensed, Section 106 does not apply."
Plaintiffs also seek discovery on their VMPRA claim. Specifically, Plaintiffs seek to determine whether there is any evidence to indicate that the figures atop the Monuments honor members of the United States Military. Plaintiffs' request for discovery as to this issue is immaterial to their success on this claim and therefore denied. As this Court explained in its previous Order and Reasons, the VMPRA "makes it a criminal offense for a defendant to willfully injure or destroy any monument on public property commemorating the service of any person in the armed forces of the United States if, in committing the offense, the defendant uses an instrumentality of interstate or foreign commerce, or if the monument is located on property owned by, or under the jurisdiction of, the federal government. The VMPRA imposes a fine, imprisonment of not more than ten years, or both." Foxx, 157 F.Supp.3d at 591 (emphasis added) (citing 18 U.S.C. § 1369). This Court further explained that "[d]ecisions whether to prosecute or file criminal charges are generally within the prosecutor's decision. Private citizens have `no standing to institute a federal criminal prosecution and no power to enforce a criminal statute.'" Id. (quoting Gill v. Texas, 153 Fed.Appx. 261, 262 (5th Cir. 2005)). Further, this Court held that "there is no basis to believe that the City will willfully injure or destroy the monuments; the City simply intends to remove and relocate them." Id. Finally, "Plaintiffs have offered no evidence to show that the monuments are located on federal land...." Id. Accordingly, no amount of discovery will create a genuine issue of material fact as to this claim, and Plaintiffs' VMPRA claim is dismissed with prejudice.
Plaintiffs seek discovery as to whether "the City discriminated against monuments (as it claims) or whether it discriminated against citizens, as argued by plaintiffs." Plaintiffs' argument differs slightly from that previously addressed by this Court. Previously, Plaintiffs argued that the Monuments Ordinance classified between monuments because the City has not proposed to remove other monuments that allegedly meet the criteria for removal pursuant to § 146-611 of the City Code. However, now, Plaintiffs argue that the City of New Orleans, and presumably the City Council, treated two classes of individuals — one consisting of those who called for the removal of the Lee, Davis, Beauregard, and Liberty Place Monuments and the other consisting of those who called for removal of the Andrew Jackson Statue in Jackson Square — differently.
The Equal Protection Clause of the Fourteenth Amendment is "essentially a direction that all persons similarly situated should be treated alike." Wood v. Collier, 836 F.3d 534, 538 (5th Cir. 2016). "[E]qual protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made." Id. (quoting
Finally, to the extent that Plaintiffs argue that the City violated their equal protection rights because all similarly situated monuments were not treated alike, this argument also fails. Here, the challenged ordinance does not distinguish between classes of individuals or groups. The monuments ordinance applies to all classes of citizens and it does not have a disparate impact on members of a suspect class." Foxx, 157 F.Supp.3d at 593. Further, "the Equal Protection Clause ensures the equal protection of persons, not monuments." Id. The City is not required to "choose between attacking every aspect of a problem or not attacking the problem at all." Id. (citing Dandridge v. Williams, 397 U.S. 471, 486-87, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970)). Therefore, permitting discovery on Plaintiffs' equal protection claims would prove futile as it would not serve to defeat summary judgment. Accordingly, Plaintiffs' equal protection claims are dismissed with prejudice.
Plaintiffs seek additional discovery on their negotiorum gestio claim. Specifically, Plaintiffs argue that "[o]ne key element determining the extent of plaintiffs' property interest may be the length of time the City was unaware of Monumental Task Committee's volunteer efforts." Once again, the Court finds that additional discovery on this claim would be futile. The Fifth Circuit's opinion made clear that Plaintiffs failed to present a prima facie case in support of their negotiorum gestio claim. Chao, 678 Fed.Appx. at 252 (holding that Plaintiff-Appellants' negotiorum gestio claim wholly lacked "legal viability or support"). Further, the Louisiana Fourth Circuit Court of Appeals recently addressed this precise issue. See
Plaintiffs argue that they need additional discovery on the following issues:
First, the only Plaintiffs in this lawsuit are Monumental Task Committee, Inc., Louisiana Landmark Society, the Foundation for Historical Louisiana, Inc., and Beauregard Camp No. 130, Inc. Accordingly, to the extent that Plaintiffs seek additional discovery as to whether other, non-plaintiff individuals or organizations may have a protected interest in the Monuments, that request is denied. Further, Plaintiffs' argument that they, or any other individual or organization, own or possess a property interest in the Monuments or the land upon which they are located is misplaced. The Louisiana Civil Code divides things into three categories: common, public, and private things. La. Civ. Code. art. 448. "Public things are owned by the state or its political subdivision in their capacity as public persons," and "the City is a political subdivision of the State." McGraw, 215 So.3d at 331 (citing La. Civ. Code art. 450). "The very definition of a `public thing' prohibits a private person from owning a public thing." Band v. Audubon Park Comm'n, 2005-0937, p. 5 (La. App. 4 Cir. 7/12/06), 936 So.2d 841, 845. Thus, "the City may own streets, public squares, and public parks in its public capacity." McGraw, 215 So.3d at 332.
Plaintiffs have repeatedly disclaimed that they own the Monuments,
It follows that Plaintiffs' due process claims must also be dismissed, because Plaintiffs do not have a protected interest in the Monuments. See Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 450 (5th Cir. 1994) (noting that to state a cause of action under § 1983 for violation of the Due Process Clause, plaintiffs "[m]ust show that they have asserted a recognized `liberty or property' interest within the purview of the Fourteenth Amendment, and that they were intentionally or recklessly deprived of that interest, even temporarily, under color of state law."); Foxx, 157 F.Supp.3d at 594 ("If there is no denial of life, liberty, or property, then the government is not required to provide due process."). Similarly, Plaintiffs' procedural due process claim is dismissed with prejudice. Procedural due process "refers to the procedures the government must follow before it deprives a person of life, liberty, or property." Foxx, 157 F.Supp.3d at 598. Procedural due process is "the opportunity to be heard `at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). However, "a meaningful time" means prior to the deprivation of the liberty or property right at issue. See Bowlby v. City of Aberdeen, 681 F.3d 215, 220 (5th Cir. 2012). As explained above, Plaintiffs do not have a protected property interest in the Monuments to require constitutionally adequate due process. Moreover, "even assuming that Plaintiffs were deprived of a constitutionally-protected property interest, Plaintiffs fail to demonstrate... that the process provided by the City was inadequate." Foxx, 157 F.Supp.3d at 598. Plaintiffs were given a meaningful opportunity to be heard when they participated at public comment meetings prior to the City ultimately deciding to remove the Monuments.
Plaintiffs contend that "City did not comply with the original nuisance statute, 146-611 of the City Code, which required the City [to] solicit input from the Historic
The plain language of § 146-611 of the City Code provides, in relevant part: "In any hearing conducted pursuant to this section, the council shall solicit the recommendations of the city planning commission when required by the City Charter and comments and recommendations of the
Plaintiffs' also seek additional discovery on whether the reports submitted to the City Council are factually accurate. Specifically, Plaintiffs seek discovery as to whether the reports submitted by the Director of Property Management for the City of New Orleans,
The relevant inquiry is whether the City Council acted "capriciously or arbitrarily." Foxx, 157 F.Supp.3d at 601 (quoting Herman v. City of New Orleans, 2014-0891, p. 7, 158 So.3d 911 (La. App. 4. Cir. 1/21/15); 158 So.3d 911, 915-16). This Court previously explained how the City Council did not act arbitrarily or capriciously in deciding to remove the Monuments. The Court held that: (1) Plaintiffs have not argued that the City Council was arbitrary and capricious in concluding that the four monuments honor ideologies that are inconsistent with equal protection; (2) Plaintiffs were unable to demonstrate that the City Council was arbitrary and capricious in concluding that the Monuments are sites of criminal activity and possible civil unrest; and (3) Plaintiffs failed to demonstrate that the City Council was arbitrary and capricious in concluding that the costs of maintaining the Monuments outweigh the benefits of keeping them. See id. at 601-602. "Plaintiffs have established only that they disagree with the City's action, not that the City abused its power. This
Plaintiffs argue that removing the Monuments violates their rights under Article XII, § 4 of the Louisiana Constitution. According to Plaintiffs, the Monuments were erected to preserve, foster, and promote the historic and cultural origins of the citizens of New Orleans and the residents of Louisiana. Plaintiffs contend that they need additional discovery on "the legislative history of Article 12, § 4 of the Louisiana Constitution."
Plaintiffs' request is not a request for additional discovery. Rather, the legislative history of a constitutional provision is legal research. Nothing prevented Plaintiffs from conducting legal research on the legislative history or reported cases on Article XII, § 4 of the Louisiana Constitution. Therefore, additional discovery on the legislative history of Article XII, § 4 of the Louisiana Constitution is denied as it would not serve to defeat summary judgment on this claim.
Moreover, Plaintiffs incorrectly contend that this Court did not hear Plaintiffs' state law claim arising under Article XII, § 4 of the Louisiana Constitution. This Court explicitly exercised supplemental jurisdiction on Plaintiffs' state law claims, Foxx, 157 F.Supp.3d at 600, and held that "Plaintiffs [failed] to demonstrate that the removal of the monuments will infringe upon their right to preserve, foster, and promote their historic, linguistic, and cultural origins." Id. at 601. As the Louisiana Fourth Circuit Court of Appeal noted, "the only reported decision interpreting [Article XII, § 4 of the Louisiana Constitution]" is this Court's previous Order and Reasons denying Plaintiffs' request for an injunction. McGraw, 215 So.3d at 331. Plaintiffs have not provided any additional arguments, cited to any additional cases or legal sources, or produced any additional evidence to persuade this Court that it was incorrect in holding that removal of the Monuments will not infringe upon Plaintiffs' rights under Article XII, § 4 of the Louisiana Constitution. The City has a right to "speak for itself" and removal of the Monuments is a form of such government speech. Foxx, 157 F.Supp.3d at 600-601. Accordingly, Plaintiffs' claims under Article XII, § 4 of the Louisiana Constitution are dismissed with prejudice.
Finally, Plaintiffs seek discovery on the "`money trail' between the anonymous donor or donors allegedly paying for removal of the monuments and the coffers of the City of New Orleans." Plaintiffs seek discovery on whether "any of the funds channeled to the City of New Orleans by Foundation for Louisiana are federal in origin, and if so the identity of the federal programs from which the funds originated." Plaintiffs argue that "the City's naked effort to hide the source of funds it will use to pay for removal of the monuments" violates the City's policy on donations, which in turn, violates Plaintiffs' right to due process of law.
This lawsuit and the events which preceded it displayed the breadth of our democracy. Constituents urged their representative officials to remove monuments which they deemed offensive. Citizens who supported the display of these figures objected with the same fervor. The proper procedural mechanisms were then employed to determine whether removal of the monuments was warranted and authorized, which resulted in the decision to uproot these figures from their current location. Objectors then petitioned the judiciary and challenged the actions of their government. This Court was then tasked solely with determining whether the government had authority to remove the monuments in question, or whether their removal violated Plaintiffs' rights. This Court's role has never been, and will never be, to pass judgment, in approval or protest, on the wisdom of the government's actions. In the end, for the reasons explained in this decision and others, this Court has determined that the government's actions are authorized and do not violate Plaintiffs' rights. Consequently, Plaintiffs' claims as to the General Robert E. Lee Monument, the P.G.T. Beauregard Monument, and the Jefferson Davis Monument must be dismissed with prejudice.
Accordingly,