Hynes v. Lakefront Mgmt. Auth.
| Decision Date | 08 November 2022 |
| Docket Number | Civil Action 22-2001 |
| Parties | ALBERT J. HYNES v. LAKEFRONT MANAGEMENT AUTHORITY, ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
ALBERT J. HYNES
v.
LAKEFRONT MANAGEMENT AUTHORITY, ET AL.
Civil Action No. 22-2001
United States District Court, E.D. Louisiana
November 8, 2022
ORDER AND REASONS
JANIS VAN MEERVELD, UNITED STATES MAGISTRATE JUDGE
Before the Court is the Motion to Strike Pursuant to Louisiana Code of Civil Procedure Art. 971 or, in the Alternative, Motion to Dismiss Pursuant to Rule 12(b)(6) filed by defendants the Lakefront Management Authority (“LMA”) and Bruce L.A. Martin (with the LMA, the “LMA Defendants”). The court finds that the LMA Defendants are “persons” entitled to file a special motion to strike under Article 971 and that a conditional privilege governs the statements at issue here. Moreover, Hynes has failed to present any evidence to create a genuine issue of fact as to whether the LMA Defendants abused that privilege. Therefore, he has not established a probability of success on his defamation claims against the LMA Defendants, and these claims must be dismissed. Further, the court finds that because Hynes has not plead that the LMA Defendants employed Hynes, any employment discrimination claims against them are hereby dismissed. Accordingly, the Motion is GRANTED and Hynes' claims against the LMA Defendants are dismissed with prejudice.
Background
Plaintiff Albert J. Hynes seeks damages for his allegedly wrongful termination from employment as a civil service Southeast Flood Protection Orleans Levee District police officer on or about March 10, 2021. Hynes began his employment in March 2019 and was assigned the
LMA's New Orleans Lakefront Airport as the Orleans Levee District Police (“OLDP”) security officer and as liaison officer between OLDP and management at the Lakefront Airport. In this lawsuit, Hynes has named as defendants the LMA, Airport Director Martin, the Board of Commissioners of the Southeast Louisiana Flood Protection Authority-East (“FPA”), and unidentified insurance companies.[1] Hynes has asserted claims against the defendants for racial, gender, and age discrimination in violation of state and federal law. He has asserted that he is a whistleblower. He alleges that the complaints against him were false and libelous.
Hynes filed this action in state court on May 16, 2022. Defendants removed to this court on June 30, 2022. The parties consented to proceed before the undersigned magistrate judge.
Presently before the court is the LMA Defendants' Motion to Strike Pursuant to Louisiana Code of Civil Procedure Art. 971 or, in the Alternative, Motion to Dismiss Pursuant to Rule 12(b)(6). Of relevance to this motion, Hynes alleges in his verified Complaint that the investigation that resulted in his termination followed an August 10, 2020, written complaint by Martin to the LMA Board Chair. Martin alleged various concerns about Hynes, including that he was biased, harassing, and neglectful towards Flightline First's general manager in favor of Signature Aviation's general manager; that he failed to take a driver's test for operating a vehicle on the airport's non-public taxiways and runways; that he did not work evening hours; that he left his vehicle's rear door open while there may have been an AR-15 in the trunk; that he harassed two minority males who were at the airport for an interview; that he failed to conduct patrols unless he thought it would get him a headline; and that he was a liability to the LMA while at the airport and was a waste of the airport's money.
In his complaint, Hynes alleges generically that upon information and belief, defendants' written accusations[2] are false and libelous. He also alleges with more specificity that the incident involving the two males who were at the airport for an interview did not involve ethnicity. He explains that both men were white and Hynes had been alerted by the manager of Signature Aviation that the two men had been observed driving around the airport parking lot twice and then parking again. As to the assertion that there may have been an AR-15 in his SUV trunk while the rear door was open, Hynes alleges that the individual complaining about this incident did not base her assertions on what she actually saw in the rear of his SUV. Instead, he says the photos do not show a weapon and her text merely stated, “Hope there are no guns in his vehicle.” He alleges this statement was based on information from the complainant's police friends that they stored their weapons in the trunk.
According to the Affidavit of Louis Capo, Executive Director of the LMA, the airport received a verbal and written complaint regarding the incident with the two males through the Airport's Manager, Chris Henderson in late April and early May 2020. Henderson relayed the conversation he had with Randy Zimmerman and forwarded the written complaints of Zimmerman and the other male-Randy Solice-to Capo, Martin, and Wilma Heaton who was the LMA Board Chair at the time. It appears these complaints provide the basis for Martin's statements about the incident in his August 2020 letter.
After the LMA's receipt of Martin's letter, the LMA forwarded it to the FPA. The August 2020 letter is attached as an exhibit to Capo's affidavit. Additionally, Capo has attached the email correspondence from Henderson regarding Zimmerman's phone call, forwarding Zimmerman's written complaint, and forwarding Solice's written complaint. These complaints indicate that
Zimmerman and Solice felt that Hynes was rude to them, made threatening comments, and improperly detained them for more than 30 minutes.
Hynes has submitted the affidavit of Kerry Najiola, who was Superintendent of Police East Jefferson, Lake Borgne, and OLDP during the time period Hynes worked as an FPA police officer at the Lakefront Airport. Najiola attaches a document that reflects the information obtained by Hynes during the vehicle stop of Zimmerman and Solice, which was passed on to the DEA and customs during Hynes' investigation. The document states:
OK fellas. Randy Glen Zimmerman w/m d.o.b 03-10-1981. From Ohio. Driving a Toyota Corrola Mississippi License Plate KAB0432. Randall William Solice, w/m d.o.b 03-03-1963, from Shreveport La. Mr. Solace stated that he was interviewing for a job at Flight Line First. No information on the aircraft But we believe that the aircraft did not communicate with the F.A.A. tower. What do you think?
(Rec. Doc. 20-2).
Hynes also includes a statement of facts with his opposition to the present motion, but this statement is not certified or attested to by Hynes. Many of the allegations therein are similar to those alleged in his Complaint. He includes additional details about the incident with Zimmerman and Solice, asserting that there had been a series of auto burglaries and thefts in the area and that the airport was closed to the general public due to the COVID-19 pandemic at the time. He points out that Zimmerman and Solice do not identify themselves as minorities in their email complaints.
The LMA Defendants argue that Hynes' complaint against them must be dismissed under Louisiana's Code of Civil Procedure Article 971, which provides a procedure for early dismissal of meritless claims arising from a person's exercise of the right to free speech under the Louisiana or United States Constitution in connection with a public issue. They add that it appears that Hynes' only claim against them is the defamation claim because although he alleges generally that “defendants” are liable for gender, race, and age discrimination, disparate treatment, and creation
of a hostile work environment, Hynes was not employed by the LMA or Martin. Therefore, they argue, no employment discrimination claim can be stated against them.
Hynes opposes. He argues that Article 971 does not apply to the LMA because it is not a natural person with a freedom of speech right. He further argues that Martin's letter was not written in connection with a public issue because it did not concern an existing investigation. Even if Article 971 applies, he argues that his defamation claim should survive because Martin's letter was written with malice or gross negligence and because the LMA failed to investigate further before forwarding it to the FPA.
Law and Analysis
1. Louisiana's Anti-SLAPP Statute[3]
Louisiana Code of Civil Procedure article 971 provides that:
A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim
La. Code Civ. Proc. art. 971 (A)(1). The filing of a special motion to strike results in a stay of all discovery. Id. art. 971(D). And the prevailing party on such a motion is awarded its reasonable attorneys' fees and costs. Id. art. 971(B).
Article 971 further provides that an act “in furtherance of the person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” includes the following:
(a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.
(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
Id. art. 971(F).
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