Dixie Brewing Co. v. U.S. Department of Veterans Affairs

952 F. Supp. 2d 809, 2013 WL 2557108, 2013 U.S. Dist. LEXIS 82017
CourtDistrict Court, E.D. Louisiana
DecidedJune 10, 2013
DocketCivil Action No. 13-461
StatusPublished
Cited by3 cases

This text of 952 F. Supp. 2d 809 (Dixie Brewing Co. v. U.S. Department of Veterans Affairs) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dixie Brewing Co. v. U.S. Department of Veterans Affairs, 952 F. Supp. 2d 809, 2013 WL 2557108, 2013 U.S. Dist. LEXIS 82017 (E.D. La. 2013).

Opinion

ORDER AND REASONS

MARTIN L.C. FELDMAN, District Judge.

Before the Court is Dixie Brewing Company’s motion for a preliminary and permanent injunction. For the reasons that [811]*811follow, the motion is DENIED for lack of subject-matter jurisdiction.

Background

This dispute arises out of the ongoing construction of the Louisiana State University-Veterans Affairs Medical Center located in the New Orleans Mid-City neighborhood, which will replace Charity Hospital and the downtown New Orleans VA Medical Center.

The construction of the LSU-VA Medical Center has been controversial,1 in part because of LSU’s expropriation of approximately thirty-five acres of land in Mid-City for the new medical complex. The City of New Orleans, LSU, and the VA entered into, numerous agreements in which LSU agreed to invoke “quick-take” authority under Louisiana Revised Statute § 19:141 to assist New Orleans in providing land to the VA for its development of the medical center: LSU would expropriate the required land for both the- LSU and VA sections of the complex, and then LSU would transfer a portion of the land to the VA. The designated area for the VA hospital is bordered by Galvez Street, Rocheblave Street, Canal Street, and Tulane Avenue. The Dixie Brewing Company building, which at one time brewed the local Dixie beer, is located on a parcel at the corner of Rocheblave Street and Tulane Avenue.2 The Dixie property was not originally included in LSU’s expropriation efforts; however, in February 2010, the Dixie property was added to the land slated for expropriation, spurring a flurry of state-court activity ever since.

On April 29, 2010, LSU filed a petition in state court for access to the Dixie property for the purpose of inspecting and evaluating the property to make a just compensation offer. The petition was granted, and, after inspection, LSU tendered an offer of compensation to Dixie, which Dixie rejected. On February 16, 2011, Dixie filed a petition for a declaratory judgment, temporary restraining order, and injunctive relief in state court to prevent LSU from expropriating the Dixie parcel. The temporary restraining order was granted and subsequently dissolved on February 25, 2011; LSU’s exception was upheld and the suit was dismissed with prejudice. Dixie did not seek appellate review. On February 25, 2011, relying on its quick-take authority, LSU filed a petition for expropriation of the Dixie parcel in state court, which was granted. LSU took possession of the Dixie property the same day, and the land was ultimately transferred to the VA. On June 3, 2011, Dixie filed a motion to dismiss LSU’s petition for expropriation in state court, challenging the constitutionality of LSU’s quick-take authority. The motion has yet to be ruled on and it appears no hearing date is currently set.

Approximately six months later, on January 27, 2012, Dixie filed a petition for a [812]*812preliminary and permanent injunction in state court, requesting the court prevent LSU from entering into an agreement to transfer the Dixie property, to any third parties, including the. VA, without first offering it for resale back to Dixie. LSU filed exceptions of no cause and no right of action,.and Dixie’s petition was denied on February 7, 2012. Dixie provided LSU notice of its intent to apply for a supervisory writ, but failed to do so. On October 12, 2012, Dixie again filed a petition for a preliminary and permanent injunction in state court to prevent LSU from entering into an agreement to transfer the Dixie property to any third parties, including the VA, without first offering it for resale back to Dixie. LSU filed the exception of res judicata, and, again, Dixie’s petition was denied with prejudice on November 16, 2012.

On March 12, 2013, Dixie sued the VA, Clark Construction Group, LLC, and McCarthy Building Companies, Inc. in this Court,3 invoking federal question and diversity of citizenship jurisdiction, and seeking a temporary restraining order and a preliminary and permanent injunction. The Court denied Dixie’s request for a temporary retraining order, finding that Dixie failed to fulfill the.requirements under Rule 65 of the Federal Rules of Civil Procedure.4 LSU filed a motion to intervene on March 21, 2013, alleging that Dixie’s complaint is “inextricably interwoven” with LSU’s expropriation and subsequent transfer of the Dixie property. Dixie opposed LSU’s motion to intervene, asserting that LSU, as prior owner of the property, no longer has an interest in the land. On April 16, 2013, Magistrate Judge Sally Shushan considered the motion to intervene on the briefs and granted the motion, allowing LSU to intervene. The Court now considers Dixie’s request for a preliminary and permanent injunction.

Legal Standard

It is well settled that “preliminary injunction is an extraordinary remedy that should not be granted unless the party seeking it has clearly carried the burden of persuasion.” Bluefield Water Ass’n v. City of Starkville, Miss., 577 F.3d 250, 253 (5th Cir.2009) (quoting Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 196 (5th Cir.2003)); see also Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (noting that preliminary injunctions are “extraordinary and drastic” forms of judicial relief that should’ not be granted absent “a clear showing”); PCI Transp., Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 545 (5th Cir.2005). The Court can issue an injunction only if the movant shows:

(1) a substantial likelihood of prevailing on the merits;
(2) a substantial threat of irreparable injury if the injunction is not granted;
(3) the threatened injury outweighs any harm that will result to the nonmovant if the injunction is granted; and
(4) the injunction will not disserve the public interest.

Ridgely v. Fed. Emergency Mgmt. Agency, 512 F.3d 727, 734 (5th Cir.2008).

[813]*813“Speculative injury is not sufficient [to make a clear showing of irreparable harm]; there must be more than an unfounded fear on the part of the applicant.” Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir.1985); see Wis. Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C.Cir. 1985) (“[Irreparable] injury must be both certain and great; it must be actual and not theoretical.”). Where the injury is merely “financial” and “monetary compensation will make [the plaintiff] whole if [the plaintiff] prevails on the merits,” there is no irreparable injury. Bluefield, 577 F.3d at 253. But when the nature of economic “rights makes ‘establishment of the dollar value of the loss ... especially difficult or speculative,’ ” a finding of irreparable harm is appropriate. Allied Mktg. Grp., Inc. v. CDL Mktg., Inc., 878 F.2d 806, 810 n. 1 (5th Cir.1989) (quoting Miss. Power & Light Co. v.

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952 F. Supp. 2d 809, 2013 WL 2557108, 2013 U.S. Dist. LEXIS 82017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dixie-brewing-co-v-us-department-of-veterans-affairs-laed-2013.