Governmental / Municipal Liability & Lobbying – Case Results

Walker v. Winn Dixie, et al
(June 2014)

Thomas Anzelmo and Craig Canizaro obtained summary judgment on behalf of the City of Westwego and two Westwego Police Department deputies.  Plaintiff alleged he suffered neck, shoulder, and elbow injuries as a result of excessive force and battery, as well as mental anguish as a result of racial profiling by the deputies who responded to an alleged theft at a grocery store.  Plaintiff brought claims pursuant to 42 U.S.C. § 1983 for violations of his 14th Amendment rights, as well as state law claims for battery.  The defense submitted that plaintiff lacked any evidence of a custom, policy or practice resulting in the violation of a constitutional right, that the officers were entitled to qualified immunity, and that plaintiff lacked any evidence of excessive force, a battery, or racial profiling by the deputies.  The Court sided with the defendants, noting the lack of evidence of wrongdoing by the officers and the lack of any custom, policy or practice by the city that lead to a violation of constitutional rights.  Accordingly, all claims were dismissed.

 

Tyron Eastwood v. Niblett’s Bluff Park Authority and Southern Insurance Company
(April 2014)

Michael Sistrunk, Devin Fadaol and Lynda Tafaro won a victory for The Republic Group in this personal injury lawsuit alleging multiple injuries and surgeries to the legs, hip and lower back as a result of a slip and fall at the Niblett’s Bluff Park.   Defendants filed a Motion for Summary Judgment seeking dismissal of all of Plaintiff’s claims pursuant to Louisiana’s Recreational Use Immunity statutes, La. R.S. 9:2791, et seq.  The trial court originally granted the Motion for Summary Judgment, then reversed itself in a rehearing.  After the Louisiana Court of Appeals for the Third Circuit upheld the denial of Defendants’ Motion for Summary Judgment, Defendants took a writ to the Louisiana Supreme Court.  The Louisiana Supreme Court unanimously granted the writ application and granted the Motion for Summary Judgment, concluding that Defendants are immune from liability pursuant to the Recreational Use Immunity Statue.

 

Warino v. Lafleur
(February 2013)

 Tommy Anzelmo and Craig Canizaro successfully represented Westwego City Councilman Larry Warino in an election challenge brought on his behalf seeking the disqualification of a candidate for Chief of Police for the City of Westwego.  The Court disqualified the defendant candidate, Roy Lafleur, on the grounds that he was not domiciled within the City of Westwego for the year preceding his qualification as a candidate for Chief of Police.  The Court was presented with an array of documents that evidenced Lafleur habitually resided in Bridge City rather than Westwego.  In response, Lafleur submitted a 2006 residential lease and voter ID card showing an address within the city.  Plaintiff rebutted both documents by noting more recent documents contradicted the lease and voter ID card.   The Court determined the plaintiff carried his burden of proof in objecting to Lafleur’s candidacy even in light of the liberal deference the Court must show to the candidate in a residency challenge over his qualifications to run for office.  Thus, the Court took the rare step of disqualifying a candidate for elected office on the basis of a lack of domicile.

 Case No. 723-920, 24th Judicial District Court for the Parish of Jefferson

Yur-Mar, LLC, et al v. Jefferson Parish
(November 2011)

Tommy Anzelmo, Kyle Kirsch, Lannie Gwartney, and Kevin Kress successfully defended Jefferson Parish in a number of state and federal lawsuits challenging the constitutionality of a new zoning ordinance establishing regulations and design standards for the “Fat City” area of Metairie, Louisiana. The ordinance was passed following a multi-year study and drafting process, and was intended to address problems of crime, blight, urban decay, and declining property values in Fat City. The ordinance set closing hours for stand-alone bars and nightclubs in Fat City of midnight during the week and 1:00 a.m. on weekends. Prior to the passage of the ordinance, no closing hours existed for these businesses, and many operated late into the night or did not close.

Yur-Mar, LLC, along with several other owners and operators of bars and nightclubs in Fat City, filed several lawsuits in federal court challenging the ordinance as violation of their due process rights, a violation of their right to equal protection, and a 5th Amendment “taking” of their property. The lawsuits also claimed that the new zoning requirements were arbitrary and capricious and lacked a rational basis. Multiple lawsuits were also filed in state district court seeking injunctions that would prevent the ordinance from going into effect in general or as applied to a particular establishment.

Our firm’s attorneys successfully defeated these challenges, obtained a dismissal of all claims against Jefferson Parish, and had the ordinance upheld as constitutional. The federal lawsuits were consolidated and the bar owners appealed the dismissal of their claims to the United States Fifth Circuit, which heard oral argument on these appeals in October 2011. Tommy Anzelmo argued before the Fifth Circuit on behalf of Jefferson Parish, and the court issued a decision affirming the dismissal of all of the bar owners’ claims (Yur-Mar, LLC, et al v. Jefferson Parish Council, et al, 2011 WL 5840265 (5th Cir. 2011)).

Maloney Gaming Management, LLC v. St. Tammany Parish
(May 2011)

Maloney Gaming Management, LLC sued St. Tammany Parish, alleging that the Parish violated its due process rights under the Louisiana Constitution in enacting an ordinance that prohibits video bingo in the unincorporated areas of St. Tammany Parish. Plaintiff also alleged that it relied to its detriment on the state of the law prior to the ordinance, and expended significant sums in renovating properties that it planned to lease to charitable organizations that would have operated video bingo parlors. The Parish filed a motion to dismiss the action on the grounds that the ability to operate video bingo parlors is a revocable privilege, and not a protected property right. The Parish further argued that plaintiff, as a commercial lessor, was prohibited by law from operating video bingo, and could not reasonably rely that a third party would be allowed to conduct video bingo in the future. Although the district court denied the motion to dismiss, Tommy Anzelmo, Kyle Kirsch, and Kevin Kress, with Lannie Gwartney assisting on the appeal, successfully appealed the ruling to the Louisiana First Circuit Court of Appeal, who overruled the trial court and ordered the dismissal of the plaintiff’s claims against the Parish.

Toga Society, Inc. v. Harry Lee, et al.
(April 2009)

Thomas P. Anzelmo and Kyle P. Kirsch won a victory in favor of Jefferson Parish in the case entitled Toga Society v. Harry Lee, et al. in the United States District Court for the Eastern District of Louisiana where plaintiff maintained “that it is entitled to total damages in the amount of $436,057.24 for its losses for three “parade” years–those being 2003-04, 2004-05, and 2005-06.” Toga Society v. Harry Lee, et al., 2005 WL 1578726, at p.1 (E.D. La. 2005). Jefferson Parish after taking over twenty depositions brought a Motion for Summary Judgment on damages which was granted by the district court. The district court found “that the only damages to which Toga is entitled to $3,485.00 in security costs paid in 2002 for its 2003 parade. The rest of the claims are specious at best and without any support in admissible evidence.” See Toga Society, 2005 WL 1578726, at p.7. This ruling was affirmed by the U.S. Fifth Circuit on appeal. See Toga Society v. Normand, 2009 WL 909431 (5th Cir. 2009).

Whelen v. Chief Penouilh, et al.
(January 2009)

Thomas P. Anzelmo and Kyle P. Kirsch won a victory in favor of Jean M. Llovet and Dr. Green in a case entitled Whelen v. Penouilh, 2009 WL 86667 (E.D. La. 2009). The plaintiff sued the defendants alleging his Civil Rights were violated when the defendants allegedly failed to provide him adequate medical care for his diabetes which he claimed led him to become legally blind. The District Court dismissed plaintiffs’ inadequate medical care claims against Llovet and Dr. Green because plaintiffs Complaint, as amended by his testimony at the Spears hearing, was insufficient to establish a §1983 claim since his medical records and testimony on cross-examination established that “he received constitutionally adequate medical care . . ..”

Martin v. Davis et al.
(January 2009)

Thomas P. Anzelmo and Kyle P. Kirsch won a victory in favor of the City of Westwego and Officer Michael Davis in the case entitled Martin v. Davis, 2009 WL 152648 (E.D. La. 2009). The plaintiffs sued the City of Westwego and Officer Davis for excessive force alleging that the decedent’s Civil Rights were violated when he was shot a killed while Officer Davis was responding to a domestic violence 911 call. The District Court dismissed plaintiffs’ claims on summary judgment finding that Officer Davis’ actions were objectively reasonable in light of the fact that “Davis was facing a fleeing irrational man who had just fired a gun, who would not comply with simple commands and who was aggressively approaching Davis and his gun while asking to be shot.”

White v. City of Kenner
(December 2008)

 McCranie Sistrunk Attorneys, representing the interest of the Kenner Police Department, prevailed through motion practice resulting in the dismissal of the plaintiff’s suit. Lloyd White was allegedly injured when he was a passenger in a vehicle which collided with an 18-wheel truck. White claimed that another vehicle’s movement had caused the driver of his vehicle to collide with the truck. The Kenner Police Officer who investigated the accident determined that the other vehicle was not involved in the accident and did not memorialize any information pertaining to the other vehicle or its driver in the police report. White subsequently filed suit, naming the City of Kenner through its Police Department, claiming he was deprived of the right to sue the other driver because of the officer. Specifically, White claimed that the officer breached his duty under La. R.S. 32:398(D) which sets forth the criteria for investigating an accident. White also claimed the officer violated La. R.S. 14:133 by filing a police report which contained allegedly “false statements.” In affirming the 24th Judicial District Court’s judgment, the Louisiana Fifth Circuit Court of Appeal held that the officer, in complying with his statutory duty to investigate the accident, was within his discretion in determining that the other vehicle was not involved in the accident and further found that the officer did not knowingly or intentionally file any false documents. The Louisiana Supreme Court denied writs to review the Fifth Circuit’s ruling.

Walker v. Llovet, et al.
(November 2008)

Thomas P. Anzelmo and Kyle P. Kirsch won a victory in favor of Jean M. Llovet and Glen D. Jett in the case entitled Walker v. Llovet, 2008 WL 4949038 (E.D. La. 2008). The plaintiff sued Llovet and Jett alleging his Civil Rights were violated when Llovet allegedly failed to provide him adequate medical care after he was allegedly injured in an altercation with prison officials. The District Court dismissed plaintiffs’ inadequate medical care claims against Llovet and Jett because plaintiff’s medical records established that his “claims of injury were not ignored and that his medical needs were not met with deliberate indifference.”

Castellanos v. Jefferson Parish Correctional Center, et al.
(August 2008)

Thomas P. Anzelmo and Kyle P. Kirsch won a victory in favor of Jean M. Llovet in the case entitled Castellanos v. Jefferson Parish Correctional Center, 2008 WL 3975606 (E.D. La. 2008). The plaintiff sued Llovet alleging his Civil Rights were violated when the defendants allegedly failed to provide him adequate medical care after he was allegedly seriously injured in an altercation with a prison official. The District Court dismissed plaintiff’s inadequate medical care claims against Llovet because plaintiff’s medical records established that every time a request for medical care was made the medical department promptly responded.

Bookerrena Kraft, et al. v. Harry Lee, et al.
(December 2006)

Thomas P. Anzelmo and Kyle P. Kirsch won a victory in favor of Jefferson Parish, the Jefferson Parish Council and Deborah Villio in the case entitled Bookerrena Kraft, et al. v. Harry Lee, et al. in United States District Court for the Eastern District of Louisiana. Plaintiffs sued the defendants alleging their Civil Rights were violated when the defendants failed to provide them adequate medical care and excessive force when Jefferson Parish Sheriff Deputies allegedly shot hundreds of bullets into a car injuring the plaintiffs and killing the driver. The District Court dismissed plaintiffs’ inadequate medical care claims against the remaining defendants because plaintiffs failed to allege how the defendants denied them adequate medical care. The District Court threw out plaintiffs’ Civil Rights claim against the Parish finding that the Parish was not responsible for the Sheriff’s alleged custom, policy or practices. Finally, the District Court dismissed plaintiffs’ claims against the Council because it was not an entity capable of being sued.

Kevin Friloux v. St. Charles Parish School Board, et al.
(June 2006)

Michael R. Sistrunk and Kyle P. Kirsch won a victory in favor of the Superintendent of the St. Charles School Board in the United States District Court for the Eastern District of Louisiana. Plaintiff (a former Parish President) brought Civil Rights and state law claims against Superintendent Rodney Lafon for allegedly terminating him for the exercise of his First Amendment rights. The district court granted defendants summary judgment motion finding that the actions of Superintendent Lafon were objectively reasonable and dismissed all of plaintiff=s claims against the superintendent.

Joseph Almerico v. City of Harahan
(March 2006)

Thomas P. Anzelmo and Kyle P. Kirsch won a victory in favor of the City of Harahan in the case entitled Joseph Almerico v. City of Harahan. Plaintiff sued the City for (1) negligent infliction of emotional distress; (2) reckless infliction of emotional distress; (3) intentional infliction of emotional distress; (4) malicious prosecution; (5) defamation/slander; and (6) abuse of process after the civil service board found that plaintiff’s termination was done in bad faith. The trial court dismissed all of plaintiffs’ claims on the City of Harahan’s Exception of No Cause of Action which was affirmed on appeal. See Joseph Almerico v. City of Harahan, 05-749 (La. App. 5 Cir. 03/28/06), 927 So.2d 586.

Kimball v. Malinda
(March 2006)

 McCranie Sistrunk Attorneys won a victory in favor of East Jefferson Levee District in a case entitled Kimball v. Malinda in the 24th District Court in Jefferson Parish. The case involved two fatalities and three seriously injured. The allegations against the Levee District were that it failed to maintain the bushes and shrubs on the neutral ground which contributed to an auto accident resulting in two fatalities and three seriously injured. Counsel successfully proved that the neutral ground in question was not under the care, custody or control of the Levee District and therefore had no duty to the plaintiffs. Derrick Bramlett, et al. v.

Thomas Buell
(July 2005)

Kyle P. Kirsch won a victory in favor of the City of Mandeville, Police Chief Thomas Buell, Detective Wade Major and Officer Kenny Lemulle in the case entitled Derrick Bramlett, et al. v. Thomas Buell, et al. in United States District Court for the Eastern District of Louisiana. Derrick Bramlett sued defendants for a shooting that took place on a Mardi Gras parade route in Mandeville, Louisiana. Mr. Bramlett was shot a total of three times because the vehicle he was driving was headed toward a crowd of bystanders that were watching the parade and had their backs to Bramlett. The trial court granted defendants summary judgment motion dismissing all of plaintiffs federal claims with prejudice because it found that the police officers acted reasonably in using deadly force to subdue Bramlett. Mr. Bramlett’s remaining state law claims were dismissed in state court via an Exception of Res Judicata/Motion for Summary Judgment.

Greater New Orleans Expressway Commission v. Olivier, et al.
(January 2005)

Thomas P. Anzelmo, Burgess McCranie and Kyle P. Kirsch brought suit on behalf of the Greater New Orleans Expressway Commission seeking a writ of mandamus to require the judges of First Parish Court for the Parish of Jefferson to enforce La. R.S. 32:57(G). In response to the mandamus action the judges challenged the constitutionality of La. R.S. 32:57(G). The trial court initially determined that the judges had standing to challenge the constitutionality of the statute and found it to be unconstitutional. On appeal to the Louisiana Supreme Court determined that the judges lacked standing to challenge the statute and vacated the trial court’s ruling. Greater New Orleans Expressway Commission v. Olivier, 2005 WL 106498 (La. 2005). After the Louisiana Supreme Court rendered its decision the judges issued an order requiring the imposition of the cost mandated by La. R.S. 32:57(G).

Parish v. Harry Lee, et al.
(January 2005)

Thomas P. Anzelmo and Kyle P. Kirsch obtained a dismissal of plaintiff’s 42 U.S.C. §1983 claims against Jefferson Community Correctional Center Medical Program, Dr. Joseph Hambrick Dr. Richard Richoux, Dr. Lawrence Durante, and Miriam Schultz. Plaintiff claimed that defendants’ denied him medical care in violation of his constitutional rights and sought $500,000.00 in damages. The trial court dismissed plaintiff’s claims against all defendants, but Ms. Schultz, on pre-trial motions. After trial, the court granted defendants’ post trial motion dismissing plaintiff’s remaining claims against Ms. Schultz based on the fact that plaintiff had not proven Ms. Schultz had any knowledge that plaintiff was being denied or receiving inadequate medical care. The court also found that plaintiff had failed to prove physical harm as a result of any of Ms. Schultz’s alleged actions or inactions.

Legania v. East Jefferson General Hospital
(May 2003)

Thomas P. Anzelmo and Kyle P. Kirsch won a victory in favor of East Jefferson General Hospital in a case entitled Joseph Legania v. East Jefferson General Hospital before United States District Court for the Eastern District of Louisiana District Judge Stanwood R. Duval. Judge Duval granted the hospital’s motion for summary judgment dismissing plaintiffs’ Equal Pay Act claim, disparate treatment claim, and plaintiff’s gender and race discrimination claim based on a failure to promote. See Legania v. East Jefferson General Hospital, 2003 WL 21277127 (E.D. La. 2003). Plaintiff voluntarily dismissed his remaining retaliation claim prior to trial.