MEMORANDUM RULING

PATRICIA MINALDI, District Judge.

Before the court is a Motion to Dismiss [Doc. 2], filed by the defendants, Waterworks District No. 4 of Ward Four, Occie Norton, Kenny Cochran, and Ollie L. "Johnny" Johnson, III. The plaintiff, Keith Hardesty, filed an opposition [Doc. 5] and the defendants filed a reply [Doc. 6]. For the foregoing reasons, the defendants' Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

FACTUAL BACKGROUND

This lawsuit was originally instituted in the Fourteenth Judicial District Court in Calcasieu Parish, Louisiana, on January 15, 2013.1 The plaintiff, Keith Hardesty, brings claims stemming from a January 16, 2012 Board of Commissioners meeting, in which his employment as Superintendent of Waterworks District No. 4 of Ward Four ("District 4"), was terminated by a Board vote of three to one.2 In addition to suing District 4, the plaintiff also brings claims against the three individual Board members who voted to terminate him, which includes Occie Norton, Kenny Cochran, and Ollie L. "Johnny" Johnson, III (collectively "the individual defendants").3

The plaintiff alleges before the vote, the individual defendants, acting within their scope of employment, communicated electronically and at various times and places to discuss and agree upon a course of action to vote to terminate him.4 Allegedly, the individual defendants wished to terminate the plaintiff because of: (1) contrary opinions he had expressed on District 4's management policies, goals and missions, long-term plans, and best business practices; (2) his "reasonable disagreement" with the Board members; and (3) his alignment with the one board member, Richard Herbert, who would later vote against his termination.5 A couple of weeks before the vote, on January 3, 2012, Henry G. Glass, past Board President of District 4, personally informed the plaintiff of the defendants' plan.6 Glass communicated to the plaintiff that he had tendered his resignation to District 4 due to disagreement with defendants' announced plan to dismiss the plaintiff at the January 16, 2012, meeting.7

On January 16, 2012, the plaintiff was formally discharged by a vote of three to one by the Board of Commissioners.8 As noted supra, the individual defendants voted in favor of dismissal and Richard Hebert voted against dismissal of the plaintiff.9

After the plaintiff filed this lawsuit, the defendants timely removed the action to this court on the basis of federal question jurisdiction, 28 U.S.C. § 1331.10 The defendants now move to dismiss all of the plaintiff's claims.

RULE 12(B)(6) STANDARD

A motion filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure challenges the sufficiency of a plaintiff's allegations. FED.R.CIV.P. 12(b)(6). When ruling on a 12(b)(6) motion, the court accepts the plaintiffs factual allegations as true, and construes all reasonable inferences in a light most favorable to the plaintiff or nonmoving party. Gogreve v. Downtown Develop. Dist., 426 F.Supp.2d 383, 388 (E.D.La.2006).

To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "A claim has facial plausibility when the plaintiff pleads the factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged ... Determining whether a complaint states a plausible claim for relief ... [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950. Although the court must accept as true all factual allegations set forth in the complaint, the same presumption does not extend to legal conclusions. Id. Courts will not accept as true "conclusory allegations, unwarranted factual inferences, or legal conclusions." Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir.2007) (quoting Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir.2005)); see also Iqbal, 556 U.S. at 664, 129 S.Ct. at 1940 ("While legal conclusions can provide the complaint's framework, they must be supported by factual allegations.")

In the Fifth Circuit case Lormand v. U.S. Unwired, Inc., 565 F.3d 228 (5th Cir. 2009), the court held that neither Twombly nor Ashcroft created a heightened pleading standard for complaints, and that these cases instead only "explicate" Rule 8(a)(2), particularly because Twombly recognized that pleading requirements could only be changed through amendment of the Federal Rules. Id. at 258-59 (citing Twombly, 550 U.S. at 569, 127 S.Ct. at 1973 n. 14). Accordingly, Fed.R.Civ.P. 8(a)(2) still only requires a "`short and plain statement of the claim showing that the pleader is entitled to relief.' Specific facts are not necessary; the statement need only `give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (citations omitted). This standard is met by the "reasonable inference" the court must make that, with or without discovery, the facts set forth a plausible claim for relief under a particular theory of law, provided there is a "reasonable expectation" that "discovery will reveal relevant evidence of each element of the claim." Lormand, 565 F.3d at 257, Twombly, 550 U.S. at 556, 127 S.Ct. at 1965.

LAW & ANALYSIS

This action calls into question the legality of the January 16, 2012, vote that took place in Executive Session of District 4, which ended in the dismissal of the plaintiffs employment as District 4's Superintendent. The defendants request dismissal of all claims brought by the plaintiff. The undersigned will address each argument in turn.

I. Open Meetings Law Claim

In his petition, the plaintiff first argues that some time before the meeting in question, the individual defendants communicated both electronically and in person at different times and places in direct violation of the Open Meetings Law, La.Rev. Stat. ann. § 42:14, thus nullifying their subsequent vote to terminate him.11 In response to this claim, the defendants argue that the plaintiffs Open Meetings Law claim is statutorily perempted. The plaintiff does not counter this argument, and in fact acknowledges that he did not timely complain as per the dictates of the Open Meetings Law.

The Open Meetings Law requires that:

La.Rev.Stat. ann. § 42:14.

Any action by a public body in violation of the Open Meetings Law is voidable. "A suit to void any action must be commenced within sixty days of the action." La.Rev.Stat. ann. § 42:24. Jurisprudence has settled that this sixty day limitation is peremptive in nature. See Greemon v. City of Bossier City, 10-2828, 11-0039 (La.7/1/11); 65 So.3d 1263, 1268, n. 3; Hoffpauir v. Louisiana Department of Public Safety & Corrections, 99-1098 (La.App. 1 Cir. 6/23/00); 762 So.2d 1219, 1222.

The plaintiff claims that the individual defendants' communications prior to the meeting on January 16, 2012 violated the Open Meetings Law. Assuming arguendo that their actions did violate the Open Meetings Law, since the plaintiff instituted this action nearly one year after the alleged infraction occurred, his claim is perempted by the sixty-day limitation established by § 42:24. Accordingly, the plaintiffs Open Meetings Law claim must be dismissed.

II. First Amendment Retaliation Claim under 42 U.S.C. § 1983

A. What Type of Wrongful Termination Claim is the Plaintiff Asserting?

Construing the plaintiffs petition liberally, as a court must do in a Rule 12(b)(6) motion, the plaintiffs main assertion appears to be that his employment was terminated in retaliation for certain First Amendment activities he engaged in; namely, voicing particular opinions on the Board's choices in running District 4 and aligning himself with certain Board members and District 4 constituents who agreed with his opinions.

The defendants argue that the plaintiffs wrongful termination claim must be dismissed because Louisiana is an "at-will" state, and thus the Board could terminate him for any reason at any time without explaining why. The plaintiff counters that he was terminated because he engaged in certain protected First Amendment speech activity, and thus it is immaterial whether Louisiana is an at-will state.

Under Louisiana law, typically, "a man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing." La.Rev.Stat. ann. § 2747. There are clear exceptions to this rule, however, with the most relevant exception being as follows: "an at-will public employee may not be discharged for exercising his First Amendment right to freedom of expression." Cabrol v. Town of Youngsville, 106 F.3d 101, 108 (5th Cir.1997) (citing Thompson v. City of Starkville, 901 F.2d 456, 460 (5th Cir.1990)). Accordingly, even assuming that the plaintiff was an at-will public employee, his claim that he was wrongfully terminated in retaliation for certain views he expressed to the Board would survive, notwithstanding any at-will affirmative defense the defendants may raise. The undersigned will therefore turn to the substance of the claims in the petition, to ascertain whether he has sufficiently pled the elements of an actionable First Amendment retaliation claim.

1. Association Claim

The plaintiff appears to argue that he was terminated, in part, because of his association with "customers and Board members" of District 4, "who openly and publicly agreed with [his] position on facts and opinions he expressed."12 While other courts have addressed First Amendment retaliation claims and the right to association, it appears the right to association was specifically linked to associating with a union:

Hitt v. Connell, 301 F.3d 240, 245-46 (5th Cir.2002) (quoting Boddie v. City of Columbus, Miss., 989 F.2d 745, 749 (5th Cir. 1993)). The undersigned thus expresses doubts that the plaintiffs First Amendment association claim is viable, although this conclusion may be immaterial, as it appears much of his association claim overlaps with his First Amendment speech claim, discussed infra.

2. Speech Claim

The plaintiff also asserts that he was terminated based on certain opinions and views he held, in violation of the First Amendment's protection of speech. As noted supra, a public employee may not be retaliated against for exercising his First Amendment rights to free speech. See Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Beattie v. Madison County Sch. Dist., 254 F.3d 595, 600-01 (5th Cir.2001). For the plaintiffs freedom of speech-related retaliation claim, a plaintiff must show: "(1) an adverse employment action was taken, (2) speech involving a matter of public concern was uttered, (3) the employee's interest in speaking outweighs the employer's interest in efficiency, and (4) the protected speech precipitated the adverse employment action." McCoy v. City of Shreveport, 492 F.3d 551, 562 (5th Cir.2007).

On the face of the plaintiffs complaint, it is clear that he has asserted that an adverse employment action was taken, as he claims the Board members terminated him for his contrary views. On the second factor of the test, whether his speech involved "a matter of public concern," a court must inquire whether the speech "relat[es] to any matter of political, social, or other concern to the community." Branton v. City of Dallas, 272 F.3d 730, 739 (5th Cir.2001). Speech will not fall under the "matter of public concern" designation if it is speech that is purely on a matter of personal interest to the employee or else speech made pursuant to the employee's official duties. Benningfield v. City of Houston, 157 F.3d 369, 375 (5th Cir.1998); Connick, 461 U.S. at 147-48, 103 S.Ct. 1684; Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). "Mixed speech" that references matters of public and personal interest remain protected by the First Amendment as long as it was made "predominantly `as a citizen.'" Harris ex rel. Harris v. Pontotoc Cnty. Sch. Dist., 635 F.3d 685, 692 (5th Cir.2011) (quoting Dodds v. Childers, 933 F.2d 271, 273 (5th Cir.1991)).

Addressing the face of the complaint, it is unclear exactly what the content of the plaintiffs speech was. The plaintiff specifically references a disagreement he had with the Board about placing District 4 under the jurisdiction of Westlake (a move he asserts District 4 citizens largely opposed), but otherwise makes vague assertions that the Board retaliated against him for "his statements of both fact and opinion concerning the management policies of [District 4], the goals and mission of [District 4], the long-term plan of [District 4], the best business practices of [District 4] and his reasonable disagreement with the Board members ..."13 Construing the complaint in the light most favorable to the plaintiff, it appears that at least some of this speech could qualify as protected political speech he made primarily as a citizen, and not personal speech he made solely in his official duty as superintendent. Without further factual development, it would be premature to decide otherwise.

Turning to the third factor, whether the plaintiffs interest in speaking outweighs his employer's desire for efficiency, as succintly summarized by Judge Lynn in Petrie v. City of Grapevine, 904 F.Supp.2d 569 (N.D.Tex.2012),

Id. at 582. Once again, the petition alone contains insufficient information to discern exactly what the plaintiff was complaining about, where he brought up these issues, and how the situation played out when he did bring up these issues (aside from the fact that he was fired). Further factual development is necessary in order to ascertain whether District 4's interest in promoting efficiency outweighed any interest he had in expressing his views.

On the fourth prong, the plaintiff has clearly pled that his protected speech activity occurred before he was terminated, so this part of the test is met. Accordingly, to the extent that the plaintiff asserts a First Amendment retaliation termination claim for certain speech activities the plaintiff engaged in, the defendants' request for dismissal is denied.

B. In What Capacity is the Plaintiff Bringing his 42 U.S.C. § 1983 Claims against the Various Defendants?

The defendants argue that, assuming the plaintiff has an actionable § 1983 claim, the claim still must be dismissed because of additional deficiencies in his petition. They point out the plaintiff asserts in his petition that the individual defendants' secret meetings were done under the color of the individual defendants' employment, which in turn makes District 4 "vicariously liable."14 The defendants correctly argue that District 4 cannot be liable under the circumstances, because vicarious liability does not attach to claims brought under § 1983. In his opposition brief, the plaintiff pivots by arguing that he did not mean to assert a vicarious liability claim, but rather was asserting a municipal liability claim against the municipal entity of District 4. As such, the individual defendants' actions were pursuant to District 4's direction or authority, or else the individual defendants were simply carrying out a District 4 policy or custom.

The defendants also assert that, to the extent the plaintiff requests § 1983 punitive damages against District 4, this request must also be denied. The defendants correctly argue that punitive damages against governing bodies (in this case, District 4) are not permitted under § 1983. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 267, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981) ("Damages awarded for punitive purposes, therefore, are not sensibly assessed against the governmental entity itself."). Punitive damages would be available, however, against the individual defendants if they were sued in their individual capacities.

The confusion on vicarious liability and punitive damages arises in part from the fact that the plaintiff has failed to specify the capacity or capacities in which the defendants are sued in his petition. The Fifth Circuit follows the majority view among the circuits that, when a plaintiff fails to allege in what capacity he is suing the defendants, a court must look to the substance of the plaintiffs claim, the relief sought, and the course of proceedings to discern the nature of the § 1983 suit. Parker v. Graves, 479 F.2d 335, 336 (5th Cir.1973); Biggs v. Meadows, 66 F.3d 56 (4th Cir.1995); Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir.1993), cert. denied, 510 U.S. 1012, 114 S.Ct. 604, 126 L.Ed.2d 569 (1993); Conner v. Reinhard, 847 F.2d 384, 394 (7th Cir.1988), cert. denied, 488 U.S. 856, 109 S.Ct. 147, 102 L.Ed.2d 118 (1988); Price v. Akaka, 928 F.2d 824, 828 (9th Cir.1990), cert. denied, 502 U.S. 967, 112 S.Ct. 436, 116 L.Ed.2d 455 (1991); Houston v. Reich, 932 F.2d 883, 885 (10th Cir. 1991); Lundgren v. McDaniel, 814 F.2d 600, 604 (11th Cir.1987).

1. Municipal Liability Claim against District 4

The court will first assess whether the plaintiff has asserted an actionable municipal liability claim against District 4. In relevant part, 42 U.S.C. § 1983 provides, "[e]very person who, under color of any statute, ordinance, ... of any State ... subjects ... any citizen of the United States ... to the deprivation of any rights ... secured by the Constitution... shall be liable to the party injured in an action at law ..." As noted by the Supreme Court,

Connick v. Thompson, ___ U.S. ___, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011) (citations omitted). To the extent that the plaintiff asserts a vicarious liability claim against District 4, therefore, jurisprudence clearly indicates that the plaintiff cannot assert a vicarious liability claim under § 1983 against District 4. As noted supra, however, the plaintiff alleges that his petition contains allegations that the defendants' actions were pursuant to District 4's direction or authority, or else the individual defendants were simply carrying out a District 4 policy or custom, indicating that he is asserting a municipal liability claim against District 4.

In their reply brief, the defendants argue that, even if the complaint could be construed to assert a municipal liability claim against District 4, the plaintiffs claim still fails because the single action in terminating the plaintiff cannot constitute a "custom or usage" within the meaning of Monell v. Dept. of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the benchmark Supreme Court decision on municipal liability. The defendants ignore the decades of caselaw that followed Monell in order to make this assertion, however. In order to assert a § 1983 claim against a municipality, a claimant may "identify a policy or custom that gave rise to the plaintiffs injury." Monell, 436 U.S. at 694, 98 S.Ct. 2018. Municipal liability may also attach, however, if the claimant can show a "single action by a municipal official possessing the final policymaking authority regarding the action in question [which] constitutes the official policy of the municipality." Brady v. Fort Bend Cnty., 145 F.3d 691, 698 (5th Cir.1998) (citing McMillian v. Monroe County, 520 U.S. 781, 117 S.Ct. 1734, 1736-37, 138 L.Ed.2d 1 (1997)). Determining whether an official enjoys final policy-making authority for a specific action turns on review of state and local law. Bolton v. City of Dallas, Tex., 541 F.3d 545, 548 (5th Cir.2008). Relevant to the inquiry of final policy making authority is whether the decision is "unreviewable by any other official body or governmental body." Brady, 145 F.3d at 700 (construing Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)).

While inartfully pled, it does appear that the plaintiff is asserting he was terminated because of the unilateral decision of the Board members who may have possessed "final policy-making authority" over employment decisions within District 4. Without further information from the parties (information on local ordinances, charters, regulations, and manuals), the court cannot discern whether the Board actually had final policymaking authority, and thus dismissal of the municipal liability claim against District 4 would be premature. Accordingly, while the court will dismiss the plaintiffs complaint to the extent it asserts a vicarious liability claim against District 4, it still finds that the plaintiff has made sufficient allegations to establish a potential municipal liability claim against District 4.

2. Individual Capacity Claim

Additionally, the court must address whether the plaintiff is asserting an individual capacity claim against the individual defendants as well. The Fourth Circuit (which, like the Fifth Circuit, looks to the "course of proceedings" to discern capacity claims), succinctly summarized what factors a court may consider in determining whether a plaintiff has pled an individual capacity claim:

Biggs, 66 F.3d at 61.

Turning to the plaintiffs petition, the results are mixed: the plaintiff does request compensatory and punitive damages,15 indicating a claim against the defendants in their individual capacities. The defendants have not, however, asserted a defense of qualified immunity. Further, the plaintiff describes the defendants' actions as "officially carrying out a policy that they established on behalf of the defendant, District which was an unlawful policy, unlawfully established."16 This confusing language on the one hand could indicate that the individual defendants singularly created a special unlawful policy solely as it related to the plaintiff in discharging him, which tips in favor of individual action and not District 4 action. On the other hand, as noted supra, if these individual defendants were the final policy-makers for District 4, this would implicate District 4 itself under a municipal liability theory.

Out of an abundance of caution, and because some factors seem to indicate an individual capacity claim, the court will construe the plaintiffs petition as alleging an individual capacity claim against the individual defendants as well. Accordingly, the court denies the defendants' request to dismiss the plaintiffs claim for punitive damages to the extent that the plaintiff may assert this claim against the individual defendants in their individual capacity, but dismisses the claim for punitive damages as it relates to the plaintiffs municipal liability claim against District 4, as punitive damages are clearly unavailable against municipalities.

III. Section 1983 Conspiracy Claim

The plaintiff also avers that the termination of his employment was a conspiracy to violate his civil rights guaranteed by the Constitution of the United States and the States.17 Additionally, the plaintiff claims that the individual defendants conspired to unlawfully suppress and discourage public comment at public meetings.18 The defendants counter that the members of the Board, together with District 4, constitute one entity, and as such, cannot conspire to violate the plaintiffs civil rights.

As aptly summarized by Judge Kent in Thompson v. City of Galveston, 979 F.Supp. 504 (S.D.Tex.1997),

Id. at 512.

In opposition to the defendant's motion to dismiss, the plaintiff claims that the acts of the individual defendants before the meeting in question are distinct from their acts during the meeting. According to the plaintiff, the actions of the three Board members before the meeting constitute actions outside of their official capacity, therefore making it possible for the board members to conspire in their individual capacity to later take action in their official capacity. The plaintiff does not point to any case law in support of his argument, nor can this court find any case law to support such a distinction. It is well settled that organizations such as District 4 and their employees constitute a "corporation" for purposes of conspiracy analysis. As such, the defendants could not have unlawfully conspired against the plaintiff, and thus the defendants' motion to dismiss the plaintiffs conspiracy claim must be granted.

IV. Conspiracy to Violate Louisiana Civil Rights

The plaintiff also claims that the defendants unlawfully conspired to violate his civil rights guaranteed by the State of Louisiana. State civil rights claims are similar to claims arising out of § 1983, and Louisiana courts look to § 1983 when conducting their analysis. See Clulee v. Bayou Fleet, Inc., 04-106 (La.App. 5th Cir.5/26/04); 875 So.2d 878, 883.

For the reasons set forth in section III, supra, the defendants could not have unlawfully conspired to violate the plaintiff's Louisiana civil rights. Therefore, the defendant's motion to dismiss the plaintiffs conspiracy claim in relation to Louisiana civil rights must be granted.

V. Imprudent Management/Breach of Fiduciary Duty Claims

The plaintiff alleges that his dismissal constituted imprudent management and breach of fiduciary duty by the defendants because of plaintiffs years of experience with District 4.19 The defendants argue that the plaintiffs claim of imprudent management/breach of fiduciary duty is unfounded because there is no fiduciary duty owed by an employer to an employee. In Louisiana, jurisprudence has established that under limited circumstances, employees owe employers a fiduciary duty. ODECO Oil & Gas Co. v. Nunez, 87-0855 (La.App. 1 Cir. 10/12/88); 532 So.2d 453 ("The employee is duty bound not to act in antagonism or opposition to the interest of the employer."). However, this court can find no precedent imposing a general fiduciary duty owed by employers to employees, nor has the plaintiff pointed to any such cases.

In this case, the plaintiffs claim against the defendants stems from his employment as the superintendent of District 4. The plaintiff claims that his discharge by majority vote of the board was imprudent due to his years of experience. In support of his argument, the plaintiff references a petition to the Police Jury signed by over 600 customers of District 4 that expressed their displeasure about the plaintiffs discharge. While this court agrees that the plaintiff appeared to be an experienced and well-respected employee, there is no jurisprudence which holds that District 4 owed a general fiduciary duty to him which would entitle him to recover. Therefore, the defendants' motion to dismiss the plaintiff's breach of fiduciary duty claim must be granted.

VI. Malicious Prosecution and Defamation Claims

The plaintiff alleges a malicious prosecution and defamation claims based on: (1) the defendants' denial of the plaintiffs right to unemployment compensation, which was later allowed by an Administrative Law Judge20 and (2) the defendants' filing of a criminal charge against the plaintiff, alleging that he committed payroll fraud.21

A. Malicious Prosecution

To successfully present a malicious prosecution claim, a plaintiff must prove the following six elements: (1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant against plaintiff who was the defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damages conforming to legal standards resulting to plaintiff. LeBlanc v. Pynes, 46, 393, p. 6 (La.App. 2 Cir. 7/13/11); 69 So.3d 1273, 1279. "Never favored in our law, a malicious prosecution action must clearly establish that the forms of justice have been perverted to the gratification of private malice and the willful oppression of the innocent." Arledge v. Sherrill, 32, 189 (La. App. 2 Cir. 8/18/99); 738 So.2d 1215, 1222.

In their motion to dismiss, the defendants argue that with criminal claims still pending against the plaintiff, it is impossible to satisfy the third prong of the malicious prosecution test. Assuming this to be true, and without refute from the plaintiff in his opposition memorandum, this court agrees. Furthermore, Hardesty was the plaintiff, not the defendant, in the unemployment proceedings that he claims were "maliciously defended" by the defendants. This fails to satisfy the second prong of the malicious prosecution test, and is also not refuted by the plaintiff in his opposition brief. Therefore, the defendants' motion to dismiss the plaintiffs malicious prosecution claim must be granted.

B. Defamation

Turning to the plaintiffs defamation claim, the plaintiff alleges that the defendants unlawfully defamed him by denying him unemployment benefits that were later granted to him by an Administrative Law Judge over the defendants' objection, and by the defendants' filing of a criminal charge in relation to the plaintiffs employment with District 4.

Defamation is committed either by libel or slander. Libel is defamation which is "expressed by print, writing, pictures, or signs", while slander is communicated by "oral expressions or transitory gestures." Cluse v. H & E Equipment Services, Inc., 09-574 (La.App. 3 Cir. 3/31/10); 34 So.3d 959, 970. Generally, unprivileged statements that result in defamation to an individual are actionable under Louisiana law. See Lemke v. Keiser & Auzenne, L.L.C., 05-893 (La.App. 3 Cir. 2/1/06); 922 So.2d 690, 692-93. In Louisiana, criminal accusations are considered defamatory per se, and generally create a presumption of falsity and malice that the defendant bears the burden to refute. Id. However, a defamation claim cannot be sustained based on statements in the context of pending litigation or a judicial proceeding, unless such statements are made with malice and without probable cause. Id.

The plaintiff claims that the criminal charge asserted against him created such a defamatory situation. However, after examining the petition, this court finds at no time did the plaintiff assert that the defendants wrote, printed, or otherwise orally expressed criminal accusations against him, with the exception of seeking judicial resolution of a possible criminal issue. And, as previously stated, the criminal action against the plaintiff is still pending, which bars him from successfully prosecuting a defamation claim against the defendants in relation to that criminal action.

The plaintiff also alleges that the unemployment proceedings were a form of defamation. With respect to this claim, he has failed to properly state a claim in which relief may be granted. In Louisiana, a plaintiff must allege and prove five things to successfully prosecute a defamation claim: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. Daigle v. Computrac, 835 F.Supp. 903, 906 (E.D.La. 1993). The plaintiff falls short on the second prong of this analysis. In a case similar to this one, Daigle v. Computrac, a plaintiff sued his former employer for defamation after the employer filled out a mandatory Office of Employment Security ("OES") form, which stated that she had been fired because of an altercation with another employee. Id. at 905. Despite this statement in her OES file, OES eventually paid the benefits to the plaintiff. Id. at 904-905. The Daigle court found that statements made to the OES did not rise to the level of defamation because the statement was not considered published. Id. at 907. Similarly, the defendants in this case denied the plaintiff unemployment benefits that were later granted to him by an Administrative Law Judge over the defendants' objection. As in Daigle, the defendants' opposition during the unemployment proceedings does not constitute publication. Accordingly, the court must grant the defendants' motion to dismiss as it relates to the plaintiffs defamation claims.

CONCLUSION

For the reasons stated above, the defendants' Motion to Dismiss will be granted as it relates to the plaintiffs Open Meetings Law claim, conspiracy claims, imprudent management/breach of fiduciary duty claim, malicious prosecution claim, and defamation claim. The defendants' motion will be denied to the extent the plaintiff has asserted a § 1983 First Amendment retaliation termination claim, as it appears the plaintiff has sufficiently pled the elements of such a claim, and it would be premature to dismiss this claim absent further factual development.