           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         February 5, 2009

                                       No. 07-30349                   Charles R. Fulbruge III
                                                                              Clerk

IN RE: KATRINA CANAL BEACHES LITIGATION


MAUREEN O’DWYER; HAROLD JOSEPH GAGNET; SALLY EGERTON
RICHARDS; SHANE E PORTER; STEPHANIE PORTER; ET AL,

                                                  Plaintiffs-Appellants
v.

DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, STATE OF
LOUISIANA; JOHNNY D. BRADBERRY, Individually and in His Official
Capacity as Secretary of the Department of Transportation and Development,
State of Louisiana; ET AL

                                                  Defendants-Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:05-CV-4182


Before KING, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiffs-Appellants are approximately 1000 “Victims of [Hurricane]
Katrina,” whom Attorney Ashton R. O’Dwyer, Jr. purports to represent in a suit
against various government and private actors. Through this and similar suits,


       *
        Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
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O’Dwyer has been responsible for a large volume of Hurricane Katrina-related
litigation in the district court, and for a corresponding bevy of appeals.1 We have
repeatedly rejected O’Dwyer’s arguments, but he persists in re-arguing the same
issues in subsequent appeals. The present appeal challenges an order issued
April 3, 2007, in which the district court dismissed claims that, for the most part,
it had previously dismissed (and whose previous dismissal we affirmed),2 but
which O’Dwyer re-filed in a new complaint. We AFFIRM the ruling of the
district court, and DENY the parties’ cross-motions for sanctions.
       The district court dismissed O’Dwyer’s claims against Louisiana agencies
and officers, in their official capacities, on sovereign immunity grounds under
Federal Rule of Civil Procedure 12(b)(1). We review a 12(b)(1) dismissal de novo.
Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). O’Dwyer argues that
Louisiana waived sovereign immunity by bringing other lawsuits as a plaintiff
in federal court, and constructively waived sovereign immunity by accepting
various forms of federal assistance after Hurricane Katrina.                     This court
considered and rejected similar arguments in a prior appeal of this case, and in
another argued by O’Dwyer. See O’Dwyer v. United States ex rel. U.S. Army
Corps of Eng’rs, No. 06-30840, 277 Fed. App’x 512 (5th Cir. 2008); Fairley v.
Stalder, No. 07-30589, 294 Fed. App’x 805 (5th Cir. 2008). Again in this appeal,
we hold that O’Dwyer fails to demonstrate that Louisiana’s litigation conduct
created “inconsistency, anomaly, and unfairness” to a degree that requires
waiver of sovereign immunity, or that Congress, by unmistakable statutory
language, conditioned post-Katrina aid on Louisiana waiving sovereign


       1
          O’Dwyer’s conduct in litigation below led to escalating sanctions, culminating in his
suspension from practice before the Eastern District of Louisiana. O’Dwyer has appealed that
suspension. Issues related to sanctions imposed against O’Dwyer below are not before the
court in the present appeal.
       2
        See O’Dwyer v. United States ex rel. U.S. Army Corps of Eng’rs, No. 06-30840, 277 Fed.
App’x 512 (5th Cir. 2008).

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immunity. See Fairley, 294 Fed. App’x at 810 (citing Lapides v. Bd. of Regents,
535 U.S. 613, 620 (2002), and Atascadero State Hosp. v. Scanlon, 473 U.S. 234,
243 (1985)).
      O’Dwyer presents two additional arguments regarding claims against
Louisiana. First, he argues the district court should have granted him discovery
regarding purported “strings attached” to federal Katrina aid, to help him
demonstrate constructive waiver. He made the same argument in Fairley,
where we determined that “discovery [was] unnecessary and dismissal [was]
appropriate,” because O’Dwyer failed to identify any statutory requirement of
sovereign immunity waiver. Id. at 810. Here as well, he fails to argue that any
such discovery would have helped him satisfy the elements of an otherwise
viable claim. Second, O’Dwyer suggests he should be allowed to sue Louisiana
actors in their official capacities under 42 U.S.C. § 1983. Will v. Michigan
Department of State Police, 491 U.S. 58 (1989), held that a state is not a “person”
subject to suit under § 1983. O’Dwyer argues that Will should not apply when
sovereign immunity is waived. Having affirmed the district court’s ruling that
sovereign immunity was not waived, we need not reach this argument.
      The district court dismissed O’Dwyer’s § 1983 claims against individual
state officers, on qualified immunity grounds, under Federal Rule of Civil
Procedure 12(b)(6). We review a dismissal for failure to state a claim de novo.
Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008). This court
rejected O’Dwyer’s § 1983 arguments, in connection with the present case, in
Appeal No. 06-30840. See O’Dwyer, 277 Fed. App’x at 513. We do so again. See
generally Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998).
      After dismissing O’Dwyer’s claims against Louisiana agencies and officials
in their public and individual capacities, the district court declined to retain
supplemental jurisdiction over related state law claims.         We review that
decision for abuse of discretion. See Guzzino v. Felterman, 191 F.3d 588, 596

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(5th Cir. 1999). We previously determined the district court was within its
discretion to decline to exercise supplemental jurisdiction in this case, see
O’Dwyer, 277 Fed. App’x at 513, and reach the same conclusion now. See
Guzzino, 191 F.3d at 594 (explaining that a district court may decline to exercise
supplemental jurisdiction when, inter alia, it has dismissed all claims with
original jurisdiction or there are other compelling reasons).
      In addition, the district court dismissed certain claims removed from state
court for failure to effect timely service of process pursuant to Federal Rule of
Civil Procedure 12(b)(5).    We review that decision for abuse of discretion.
Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 445 (5th Cir. 1996). Once the
validity of service has been contested, the plaintiff bears the burden of
establishing its validity. Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d
1344, 1346 (5th Cir. 1992). The parties dispute the source of law for determining
the service period, but that dispute is immaterial. O’Dwyer admits his tardiness
under any standard. The district court did not abuse its discretion when it
dismissed O’Dwyer’s claims under Rule 12(b)(5).
      O’Dwyer next complains about alleged misconduct in the proceedings
before the district court, while conceding that these issues are “not yet ‘squarely’
before This Honorable Court.” We agree, and do not consider them.
      Finally, O’Dwyer argues that the state’s lawyers deserve sanctions for
allegedly failing, in the proceedings below, to disclose the existence of lawsuits
that he argues waived sovereign immunity. It is not clear if this is a request for
sanctions from this court or an appeal of the district court’s denial of O’Dwyer’s
motion to disqualify the Louisiana Department of Justice.           We reject his
argument in either event. Sanctions are not appropriate, and the district court
was within its discretion to deny the motion.
      In addition to the merits of the appeal, Defendants-Appellees have filed a
motion for sanctions against O’Dwyer, to which he responded with a motion for

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sanctions against them. We DENY both motions for sanctions, and AFFIRM the
decision of the district court in all regards.




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