BRIAN A. JACKSON, Chief Judge.
Before the Court is a Motion for
On September 3, 2013, Taylor filed this lawsuit against Defendants under 42 U.S.C. § 1983 ("Section 1983"); the Second Amendment to the United States Constitution, U.S. Const. amend. II; Fourth Amendment to the United States Constitution, U.S. Const. amend. IV; Fifth Amendment to the United States Constitution, U.S. Const. amend. V; Fourteenth Amendment to the United States Constitution, U.S. Const. amend. XIV, § 1; and Louisiana Constitution Article I, §§ 2, 3, 4-5, and 11, La. Const. Art. I, §§ 2, 3, 4-5, 11. Taylor's Complaint alleges that on October 13, 2012, three officers
Taylor alleges, inter alia, that § 13:95.3 unlawfully infringes upon his and other citizens' Second Amendments
According to the record, counsel for Defendants signed a Waiver of the Service of Summons on behalf of Defendants on October 22, 2013. (Doc. 3.) On October 27, 2013, Taylor filed the executed Waiver of the Service of Summons into the record. (Doc. 3.) The Waiver signed by counsel for Defendants states,
(Doc. 3.)
Despite executing the waiver, Defendants failed to file an Answer to the Complaint ("Answer") or a motion under Federal Rule of Civil Procedure ("Rule") 12 by November 8, 2013; nor did Defendants request an extension of time to file an Answer or a motion under Rule 12. Indeed, it is uncontested that Defendants did not attempt to file an Answer until approximately five months later.
On April 16, 2014, after several months of inaction by Defendants, Taylor filed a Motion for Preliminary Default. (Doc. 15.) Rule 55(a) requires the Clerk of Court to enter a default against any party that has "failed to plead or otherwise defend ..." Fed.R.Civ.P. 55(a). Accordingly, on April 16, 2014, the Clerk of Court granted Taylor's motion, and issued an Order of Default against Defendants. (Doc. 17.)
Only after the preliminary default was entered against Defendants did Defendants file an Answer. (Doc. 19.) Indeed, the record shows that Defendants did not file an Answer until April 17, 2014, five months and nine days after Defendants' November 8, 2013 deadline.
On June 18, 2014, the Court heard oral argument on, inter alia, the instant motion. (Doc. 30.) During the hearing, counsel for Defendants failed to establish good cause for Defendants' failure to plead or otherwise defend the instant lawsuit.
The duty to respond to a complaint is triggered by the service of the summons or lawful process, and the failure to do so may result in the entry of default or default judgment under Rule 55. Fagan v. Lawrence Nathan Assocs., 957 F.Supp.2d 784, 795 (E.D.La.2013) (citing Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933, 937 (5th Cir.1999)). Rule 55 provides, in pertinent part:
Fed.R.Civ.P. 55.
Once the Clerk of Court has found a defendant to be in default, the Court may enter a default judgment against the defaulting defendant, upon motion by the plaintiff.
"Default judgments are a drastic remedy, not favored by the Federal Rules and resorted to by courts only in extreme situations.... [T]hey are `available only when the adversary process has been halted because of an essentially unresponsive party.'" Sun Bank of Ocala v. Pelican Homestead & Sav. Ass'n, 874 F.2d 274, 276 (5th Cir.1989) (quoting H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691, 139 U.S.App. D.C. 256 (D.C.Cir.1970)). This policy however, is "counterbalanced by considerations of social goals, justice and expediency, a weighing process [that] lies largely within the domain of the trial judge's discretion." Rogers, 167 F.3d at 936 (internal citations omitted). In accordance with these guidelines, "[a] party is not entitled to a default judgment as a matter of right, even where the defendant is technically in default." Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir.1996); see also Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.1975).
Further, while the Court must accept pleaded facts as true, it retains the obligation to determine whether those facts state a claim upon which relief may be granted. See Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir.2001).
In determining whether a default judgment should be entered against a defendant, courts have developed a two-part analysis. Busi and Stephenson Ltd. v. U.S. Trade Finance Corp., No. 3:13-CV-3935-B, 2014 WL 1661213, at *1, 2014 U.S. Dist. LEXIS 57730, at *3 (N.D.Tx. April 25, 2014) (citing cases); Fidelity & Guaranty Life Insurance Company v. Unknown, No. 13-CV-412-PRM, 2014 WL 2091257, at *2, 2014 U.S. Dist. LEXIS 71313, at *5-6 (W.D.Tx. May 16, 2014) (citing cases). First, the court must consider whether the entry of default judgment is appropriate under the circumstances. See Lindsey, 161 F.3d at 893. The factors relevant to this inquiry include: (1) whether material issues of fact are at issue; (2) whether there has been substantial prejudice; (3) whether the grounds for default are clearly established; (4) whether the default was caused by good faith mistake or excusable neglect; (5) the harshness of a default judgment; and (6) whether the court would think itself obliged to set aside the default on the defendant's motion. Id. Second, the court must assess the merits of the plaintiff's claims and find sufficient basis in the pleadings for the judgment. See Nishimatsu Constr., 515 F.2d at 1206.
Due to their default, Defendants are deemed to have admitted the allegations set forth in the Complaint. Busi and Stephenson Ltd., 2014 WL 1661213, at *2, 2014 U.S. Dist. LEXIS 57730, at *5. Nevertheless, the Court must review the pleadings to determine whether Taylor has established a viable claim for relief. Nishimatsu Constr., 515 F.2d at 1206 (noting that "default is not treated as an absolute confession by the defendant of his liability and of the plaintiff's right to recover.").
Taylor's Complaint alleges that on October 13, 2012, at approximately 1:35 a.m., he was pulled over and arrested for, inter alia, Possession of a Firearm Where Alcohol Is Being Sold, in violation of § 13:95.3.
According to Taylor, when he explained to Thomas, Wennemann, and Doe his understanding that he was allowed to carry the guns inside of his vehicle, the officers responded that there was a "new law" that made it illegal for anyone to possess a firearm in the parking lot of an establishment that sold alcohol, and that he was therefore being arrested, and his guns were being seized and taken into police custody. Taylor alleges, however, that only after the officers restrained him in Thomas' police cruiser, and seized and inspected the guns did they place him under arrest.
Taylor alleges that Thomas, Wennemann, and Doe later brought him to East Baton Rouge Parish Prison, where he remained until bail was posted on his behalf. Taylor further alleges that, upon searching the trunk of his vehicle, without receiving his permission, the officers also located a
Taylor's Complaint alleges that at the time of the traffic stop, he owned and was in lawful possession of the three guns seized by Thomas, Wennemann, and Doe. Taylor further alleges that the guns confiscated by Thomas, Wennemann, and Doe had not been brought into any establishment serving or selling alcohol, and Taylor never entered any establishment that served or sold alcohol with guns in his possession. Nevertheless, all three of his guns were confiscated by Defendants and retained by the Baton Rouge Police Department as evidence of Taylor's violation of § 13:95.3. Taylor further alleges that, through the enforcement of § 13:95.3, and the prosecution of individuals who are alleged to have violated its provisions, Defendants have created and/or maintained a policy whereby they enjoy unfettered discretion to deprive individuals of their constitutionally protected right to keep and bear arms.
As noted above, Defendants failed to address the constitutionality of § 13:95.3, despite having been given the opportunity to do so in response to the Complaint, in the form of a dispositive motion, in their memorandum in opposition to the instant motion, and during the hearing on the instant motion. Accordingly, at the conclusion of the hearing on the instant motion, the Court granted Taylor and Defendants leave to file post-hearing memoranda regarding the constitutionality of § 13:95.3. Subsequently, Defendants submitted a post-hearing memorandum in which they make unsupported factual assertions,
Defendants do not contest that § 13:95.3 falls within the scope of the Second Amendment; nor do Defendants dispute that strict scrutiny applies. See NRA of Am. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 194 (5th Cir.2012).
Surprisingly, Defendants also concede that subsection (c) of § 13:95.3 "may not be as narrowly tailored as it could be" and "could be unconstitutional `as applied' to a person within the parking lot of a grocery store." (Doc. 36, p. 9.) Accordingly, it cannot be said that Defendants have met their burden of establishing that § 13:95.3
In contrast, Taylor's pleadings establish a viable claim for relief under the Second Amendment. As written, the clear language of § 13:95.3 prohibits the possession of firearms in any parking lot of an establishment that sells alcohol. Thus, any law abiding citizen who exercises his or her right to keep or bear arms within the confines of his or her personal vehicle will violate § 13:95.3 anytime he or she, for example, stops to refuel a vehicle at a service station that sells alcohol, or stops to purchase groceries at a grocery store that sells alcohol. Indeed, Defendants concede in their memorandum that § 13:95.3 "could be unconstitutional `as applied' to a person within the parking lot of a grocery store." (Doc. 36, p. 9.) Similarly, the ordinance prohibits law-abiding citizens from purchasing and possessing firearms at any establishment that sells alcohol, thereby rendering the sale of firearms at establishments like Wal-Mart a criminal act.
The viability of Taylor's Second Amendment claim is further underscored by undisputed evidence that members of the East Baton Rouge Parish Attorney's Office, including Defendant Roper, appeared before the Baton Rouge Metropolitan Council on June 25, 2014, and requested the Council repeal § 13:95.3 because the ordinance is a "... mistake, and it should be corrected." (Docs. 44, pp. 14-17, 44-5.) It is also undisputed that on June 24, 2014, counsel with the East Baton Rouge Parish Attorney's Office drafted (and forwarded to counsel for Taylor) an email to Baton Rouge Chief of Police, Carl Dabadie, Jr., suggesting Dabadie "no longer enforce Section 13:95:3" because "[t]he ordinance may have some constitutional problems." (Doc. 50-6.)
In sum, the Court finds that Taylor's allegations, which the Court accepts as true based on Defendants' default, are sufficient to establish a viable claim for relief under the Second Amendment. Consequently, the Court concludes that Plaintiff has established a sufficient basis for judgment in his favor.
"When considering a declaratory judgment action, a district court must engage in a three-step inquiry. First, the court must determine whether the declaratory action is justiciable." Orix Credit Alliance, Inc. v. Wolfe, 212 F.3d 891, 895 (5th Cir.2000). in other words, the Court must be satisfied that an "actual controversy" exists between the parties to the action. Id. (citation omitted). "Second, if it has jurisdiction, then the district court must resolve whether it has the `authority' to grant declaratory relief in the case presented." Id. (citation omitted). "Third, the court has to determine how to exercise its broad discretion to decide or dismiss a declaratory judgment action." Id. (citation omitted).
"A declaratory judgment action is ripe for adjudication only where an `actual controversy' exists." Id. at 896 (citations omitted). "As a general rule, an actual controversy exists where `a substantial controversy of sufficient immediacy and reality' [exists] between parties having adverse legal interests." Id. (citations omitted). Simply put, "in order to achieve the status of a case or controversy, a dispute must exist between two parties having adverse legal interests." Fid. & Guar. Life Ins. Co. v. Unknown, No. 13-CV-412-PRM, 2014 WL 2091257, at *3, 2014 U.S. Dist. LEXIS 71313, at *10 (W.D.Tex. May 16, 2014) (citing S. Jackson & Son, Inc. v. Coffee, Sugar, & Cocoa Exchange, Inc., 24 F.3d 427, 431 (2d Cir.1994) (citation omitted)). "Whether particular facts are sufficiently immediate to establish an actual controversy is a question that must be addressed on a case-by-case basis." Orix Credit Alliance, 212 F.3d at 896 (citations omitted).
Here, it is undisputed that § 13:95.3 remains the law in the Parish of East Baton Rouge and the City of Baton Rouge, and continues to be enforced by the Baton Rouge Police Department. Accordingly, any individual who chooses to keep his or her lawfully-held firearms in his vehicle while "in any premises where alcoholic beverages are sold and/or consumed on the premises," including a grocery store parking lot, is subject to arrest by the Baton Rouge Police Department.
Further, it is undisputed that Taylor was arrested for violating § 13:95.3; and that he, or any other individual, can be arrested for violating § 13:95.3, imprisoned for up to six months, and/or ordered to pay a five hundred dollar fine, and ordered to forfeit his or her firearms at any time. In other words, there exists a real, immediate, and direct threat to Taylor's Second Amendment rights. Additionally, Defendants do not argue that this Court lacks jurisdiction or that the constitutionality of § 13:95.3 is not ripe for determination.
For these reasons, the Court concludes that there is a "substantial controversy of sufficient immediacy and reality between parties having adverse legal interests." Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941).
"Under the second element of the Orix Credit Alliance test, a district court does not have authority to consider the merits of a declaratory judgment action when: (1) the declaratory defendant previously filed a cause of action in state court; (2) the state case involved the same issues as those in federal court; and (3) the district court is prohibited from enjoining the state proceedings under [28 U.S.C. §] 2283." Sherwin-Williams Co. v. Holmes Cty., 343 F.3d 383, 388 n. 1 (5th Cir.2003) (citations omitted).
Here, nothing before the Court establishes the existence of a similar, parallel state court action relating to this cause. Further, according to Defendants, the criminal charges against Taylor were dismissed on April 28, 2014. Absent evidence of a similar pending state court action, the Court has the authority to grant declaratory relief pursuant to the guidelines set forth in Orix Credit Alliance.
Pursuant to the third step set forth in Orix Credit Alliance, a district court faced with a declaratory relief action must determine whether to exercise or
The Court concludes that the above listed factors balance in favor of resolving Taylor's request for declaratory relief. As noted above, the Court has no evidence before it demonstrating the existence of a parallel state court action. Additionally, for the reasons noted the above, the Court concludes that default judgment is warranted in this matter. Further, a declaratory judgment as to the constitutionality of § 13:95.3 would further judicial efficiency.
Based on the above analysis, the Court concludes that Taylor is entitled to a default judgment against Defendants. Additionally, due to the actual controversy and constitutional deprivations involved, the Court concludes that a declaratory judgment and permanent injunction are warranted.
Accordingly,
The Court
B.R.Code § 13:95.3.
Id., 700 F.3d at 194.
