Able Security and Patrol, LLC. v. Louisiana
| Decision Date | 24 July 2008 |
| Docket Number | Civil Action No. 07-1931. |
| Citation | 569 F.Supp.2d 617 |
| Parties | ABLE SECURITY AND PATROL, LLC. and Henry Jolly v. State of LOUISIANA, et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
John-Michael Lawrence, John-Michael Lawrence, LLC, New Orleans, LA, for Plaintiffs.
Lance Sterling Guest, Louisiana Department of Justice, Stephen P. Schott, Ryan M. McCabe, Montgomery Barnett, Mindy Brickman Patron, Deborah A. Van Meter, McGlinchey Stafford, PLLC, New Orleans, LA, Murphy J. Foster, III, Scott Nikolaus Hensgens, Breazeale, Sachse & Wilson, L.L.P, Baton Rouge, LA, for Defendants.
ORDER AND REASONS
IVAN L.R. LEMELLE, District Judge.
Before the Court are Rule 12(b)(6) Motions to Dismiss filed by Defendants, Blackwater Security Consulting, LLC and Eric Dean Prince, Rec. Doc. 26, and Corporate Security Solutions, Inc., and Christopher William Frain, Rec. Doc. 27. Plaintiffs oppose both Motions. Rec. Doc. 57. The Motions came hearing without oral argument on January 1, 2008. The Court, after hearing the arguments of the parties, found Plaintiffs' allegations as to their RICO claims lacking but rather than dismiss, allowed amendment.1 The Court deferred ruling on the Motion to Dismiss until Plaintiffs filed their Amended Complaint.
Plaintiffs filed their Amended Complaint and these Defendants responded by filing renewed Rule 12(b)(6) Motions to Dismiss. Rec. Doc. 72, 84. Plaintiffs oppose those Motions. Rec. Doc. 81. The Motions came for hearing without oral argument and were submitted on the briefs. For the following reasons, the Motion are DENIED IN PART and GRANTED IN PART.
Henry Jolly ("Jolly") established Able Security and Patrol, LLC ("Able"), a security company, in 2001. At all pertinent times, Able had approved occupational licenses in Orleans and Jefferson Parishes as well as was licensed with the Louisiana State Board of Private Security Examiners.
After assisting in the first-responder rescue missions post-Katrina, on September 2, 2005, Able and its staff moved operations to Baton Rouge. On September 5, 2005, Jolly met with the coordinator of the Louisiana State Board of Private Security Examiners ("LSBPSE") to discuss Able's status. It is alleged that Jolly informed the LSBPSE coordinator that the company was up and running. It is also alleged that Jolly and Able employees were in the New Orleans area on September 5, 2005, and "knew that recovery was underway and that [their] business would flourish."
On March 1, 2006, Plaintiffs received a cease and desist order executed by Wayne Rogillo, the executive secretary of the LSBPSE, revoking Able's operating certificate for non-compliance with regulations, specifically failure to maintain insurance. On May 9, 2006, Jolly faxed proof of insurance to the LSBPSE and on May 15, 2006, Jolly received a letter from the LSBPSE acknowledging it had received the insurance certificate; nevertheless, Plaintiffs were informed that they were obligated to pay a fine for failure to comply with the obligations to maintain insurance coverage. Also on May 15, 2006, Jolly received a cease and desist order dated May 11, 2006, revoking his classroom instructor license due to lack of insurance. Jolly called the LSBPSE and advised that there was proper insurance; however, while the LSBPSE stated it would rescind the order, it also indicated that a fine may be imposed.
In addition to, allegedly, issuing improper cease and desist orders, it is alleged that the LSBPSE and Rogillo, allowed unlicensed and uninsured out of state security firms to operate in Louisiana in violation of Louisiana statutes. One of these alleged firms was named Able Security & Investigations of Louisiana, LLC. Plaintiffs claim that by allowing this "Bogus Able" security company to operate in Louisiana the LSBPSE not only violated Louisiana law, but also were complicit in the improper use of Able's trade name. Plaintiffs urge that this "Bogus Able" deceived Plaintiffs' clients and competitors into believing that Bogus Able was affiliated with the Plaintiffs. Plaintiffs allege they complained to the LSBPSE and to Rogillio, to no avail.
Jolly and Able ("Plaintiffs") filed this action against the State of Louisiana, through the LSBPSE, the LSBPSE, Rogillio, and unknown members of the LSBPSE alleging these Defendants: (1) shattered Plaintiffs' operations by denying them their right to operate; (2) allowed out-of-state and unlicensed firms to operate; (3) allowed one of the out-of-state firms to violate Plaintiffs' state trade and business law rights; (4) favored "Bogus Able" and other out of state and unlicensed firms based on race and ties to LSBPSE board members; and (5) denied Plaintiffs the right to operate based on race. Plaintiffs claim all these actions were intentional and outrageous and have damaged Plaintiffs' reputation among its clients and others, deprived Plaintiffs of jobs and fees, injured Plaintiffs in their future business, caused Plaintiffs to incur expenses, fees, costs and suffer emotional harm.
In addition to the LSBPSE and Rogillio, Plaintiffs sued Able Security & Investigations, LLC ("Bogus Able"), its owner Walter D. Roberts ("Roberts"), and their insurer El Dorado Insurance Agency, Inc., alleging that these Defendants intentionally operated in the State of Louisiana as "Able Security" in violation of trade name and fair business statutes. Further, Plaintiffs allege that "Bogus Able" and Roberts purposefully profited off of the trade name of Plaintiffs, intentionally posed as Plaintiff, Able Security and Patrol, operated without a proper license, operated without proper insurance, and also operated in a way to cause damage to Plaintiffs reputation and ability to do business.
Plaintiffs also name Corporate Security Solutions, Inc. ("Corporate"), its owner Christopher Frain ("Frain"), their insurer Marsh Use, Inc., Insurance Company, Blackwater Security Consultants, LLC ("Blackwater"), its owner Erik Dean Prince ("Prince"), and their insurer Commercial Insurance Group, Inc. The allegations against these Defendants are that Corporate and Blackwater operated in Louisiana without a proper license, insurance and other necessary qualifications for business, solicited Plaintiffs clients and intentionally misrepresented Plaintiffs' status to get business. Plaintiffs allege these acts caused them financial injury and injury to their reputation.
At the conclusion of the oral argument on the first round of Motions to Dismiss, the Court allowed amendment of the Complaint. Rec. Doc. 60. Plaintiffs filed an Amended Complaint and allege that Defendants, collectively: violated section 1962(a), (b), (c) and/or (d) of the Racketeer Influenced and Corrupt Organization Act ("RICO"); violated Plaintiffs' 5th and 14th Amendment rights to due process and equal protection, violated 42 U.S.C. §§ 1981, 1983 and 1985; violated federal and state racketeering acts; violated Louisiana trade and business practice statutes; and intentionally and negligently inflicted tortious actions upon Plaintiffs in violation of Louisiana law.
The security company Defendants responded by filing the instant renewed FRCP 12(b)(6) Motions to Dismiss. Rec. Doc. 72, 84.
Dismissal pursuant to FRCP 12(b)(6) "is viewed with disfavor and is rarely granted." Lowrey v. Texas A & M University System, 117 F.3d 242, 247 (5th Cir.1997); Kaiser Aluminum & Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir.1982). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the original complaint must be taken as true. Oliver v. Scott, 276 F.3d 736, 740 (5th Cir.2002); Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir.1986). When evaluating a Rule 12(b)(6) motion to dismiss, the Court must accept as true all well-pleaded allegations and resolve all doubts in favor of the plaintiff. Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir.1988). The Court cannot dismiss a complaint under Rule 12(b)(6) unless it appears beyond doubt that the plaintiff cannot prove a plausible set of facts in support of his claim which would entitle him to relief. Bell Atlantic Corp. v. Twombly, ___ U.S. ___, ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007).
Plaintiffs have alleged violations of Section 1962(a), (b)(c) and/or (d). These RICO subsections state, in their simplest terms, that:
(a) a person who has received income from a pattern of racketeering activity cannot invest that income in an enterprise;
(b) a person cannot acquire or maintain an interest in an enterprise through a pattern of racketeering (c) a person who is employed by or associated with an enterprise cannot conduct the affairs of the enterprise through a pattern of racketeering activity; and
(d) a person cannot conspire to violate subsections (a), (b), or (c).
Abraham v. Singh, 480 F.3d 351, 354-355 (5th Cir.2007). Regardless of the subsection, RICO claims under § 1962 have three common elements: "(1) a person who engages in (2) a pattern of racketeering activity, (3) connected to the acquisition, establishment, conduct, or control of an enterprise." Word of Faith World Outreach Ctr. Church, Inc. v. Sawyer, 90 F.3d 118, 122 (5th Cir.1996)(quoting In re Burzynski, 989 F.2d 733, 741-42 (5th Cir. 1993)); Accord Price v. Pinnacle Brands, Inc. 138 F.3d 602, 606 (5th Cir.1998).
Defendants urge that Plaintiffs' RICO claim fails because, inter alia, they do not adequately allege a RICO "enterprise." The term "enterprise" is defined as including "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). An enterprise is a group of persons or entities associating...
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