Monumental Task Comm., Inc. v. Foxx, CIVIL ACTION NO: 15–6905

259 F.Supp.3d 494

MONUMENTAL TASK COMMITTEE, INC., et al.

v.Anthony R. FOXX, et al.

CIVIL ACTION NO: 15–6905

United States District Court, E.D. Louisiana.

Signed April 24, 2017

Franklin Hardy Jones, III, McAlpine & Cozad, James R. Logan, IV, Logan & Soileau, LLC, New Orleans, LA, Jennifer A. Fiore, John B. Dunlap, III, Susan Eccles, Dunlap Fiore, LLC, Baton Rouge, LA, for Monumental Task Committee, Inc., et al.

Peter M. Mansfield, Jason M. Bigelow, K. Paige O'Hale, U.S. Attorney's Office, N. Sundiata Haley, Haley Law Firm, Randy George McKee, McKee Law Firm, L.L.C., Adam J. Swensek, Cherrell Simms Taplin, Churita H. Hansell, Ewell Patrick Eagan, Rebecca H. Dietz, City Attorney's Office, Gregory J. Feeney, Kelly Hart & Pitre LLP, New Orleans, LA, for Anthony R. Foxx, et al.

ORDER & REASONS

SECTION: "J"(3)

CARL J. BARBIER, UNITED STATES DISTRICT JUDGE

Before the Court are several motions. First, Plaintiffs filed a Motion to Continue¹ and a supplemental memorandum in support thereof.² Federal Defendants³ and the City⁴ filed oppositions thereto. Second, the City filed a Motion for Summary Judgment ,⁵ and Plaintiffs filed an opposition⁶ thereto. Third, Federal Defendants filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction and Summary Judgment ,⁷ and Plaintiffs filed an opposition⁸ thereto. Finally, the New Orleans Regional Transit Authority ("RTA") filed a Motion for Summary Judgment ,⁹ and Plaintiffs filed an opposition¹⁰ thereto. Having considered the motions and legal memoranda, the record, and the applicable law, the Court finds that Plaintiffs' Motion to Continue (R. Doc. 67) should be DENIED , and the City's Motion for Summary Judgment (R. Doc. 63) , the Federal Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction and Summary Judgment (R. Doc. 62) , and the RTA's Motion for Summary Judgment (R. Doc. 64) should be GRANTED .

FACTS AND PROCEDURAL BACKGROUND

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,¹¹ and that decision was ultimately affirmed by the Fifth Circuit on March 6, 2017. See Monumental Task Comm., Inc. v. Chao , 678 Fed.Appx. 250 (5th Cir. 2017) (unpublished). On March 8, 2017, this Court granted the City's motion for summary judgment and dismissed Plaintiffs' claims as to the Liberty Place Monument. Monumental Task Comm., Inc. v. Foxx , 240 F.Supp.3d 487 (E.D. La. 2017).

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.

PARTIES' ARGUMENTS

1. Plaintiffs' Motion to Continue

a. Plaintiffs' Arguments

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 Orleans is subject to review under section 4(f) of the DOT Act and section 106 of the NHPA. Thus, Plaintiffs claim that the Federal Defendants violated the DOT Act by failing to conduct a section 4(f) analysis of the effect of the totality of the streetcar network in New Orleans on the Monuments, and violated section 106 of the NHPA because they failed 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 the Monuments. Plaintiffs contend that their "expansive interpretation of [the NHPA and the DOT Act]" is a matter of first impression, and thus if any support for such an interpretation was found it would create a disputed material fact and tend to prove Plaintiffs' claims. Lastly, Plaintiffs contend that the Monuments have become "incorporated into the transit system" adjacent to them, and thus they should be permitted discovery "within the Department of Transportation and the Federal Transit Authority."

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 Constitution. Specifically, Plaintiffs seek discovery on the legislative history Article XII, § 4 of Louisiana Constitution.

b. Federal Defendants' and The City's Response in Opposition

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.

2. Federal Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction

a. Federal Defendants' Arguments¹²

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....