     Case: 18-31277    Document: 00515047184      Page: 1      Date Filed: 07/24/2019




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

                                                                            FILED
                                 No. 18-31277                           July 24, 2019
                               Summary Calendar
                                                                       Lyle W. Cayce
                                                                            Clerk
MARY F. EDMISTON,

             Plaintiff – Appellant,

v.

LOUISIANA SMALL BUSINESS DEVELOPMENT CENTER,

             Defendant – Appellee.



                 Appeal from the United States District Court
                    for the Western District of Louisiana


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      This case requires us to determine whether the Louisiana Small
Business Development Center is a juridical entity capable of being sued under
federal law for alleged age discrimination. Holding that it is not, we AFFIRM
the district court’s dismissal for failure to state a claim.
                                         I.
      Mary Edmiston, proceeding pro se, alleges that she was, inter alia, an
office manager for the Louisiana Small Business Development Center
(LSBDC) on the campus of Northwestern State University at Natchitoches.
She alleges that she is over 71 years old and was fired because of age
discrimination, in violation of the Age Discrimination in Employment Act
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                                        No. 18-31277
(ADEA) of 1967, 1 and in an act of retaliation, in violation of Title VII of the
Civil Rights Act of 1964. 2
      Edmiston’s complaint originally named the LSBDC and the State of
Louisiana as defendants. She amended her complaint to remove the State of
Louisiana. The Louisiana Attorney General’s office moved to dismiss under
Rule 12(b)(6) on the grounds that the LSBDC is not a legal entity and thus
lacks capacity to be sued. Edmiston moved to amend her complaint again to
add the State of Louisiana and the Board of Supervisors for the University
System of Louisiana as defendants.
      A magistrate judge recommended 12(b)(6) dismissal for failure to state a
claim and denial of the motion to amend as futile. The magistrate judge
acknowledged that there was not caselaw directly on point for whether the
LSBDC was an independent juridical entity. Nonetheless, the magistrate
judge concluded that the LSBDC did not exist separate and apart from the
Board of Supervisors for the University of Louisiana System, and that the
Board of Supervisors was immune from suit because the ADEA does not
abrogate state sovereign immunity. As to the Title VII claim—for which state
sovereign immunity would be abrogated—the magistrate judge noted that
Title VII applies only to claims based on race, color, religion, sex, or national
origin, and thus a claim alleging retaliation for complaining about age
discrimination cannot be brought under Title VII.
      The district court adopted all of the magistrate judge’s recommendations
and additionally held that the LSBDC does not meet the definition of an
“employer” under 29 U.S.C. § 630(b) of the ADEA (defining “employer” to mean,
inter alia, an entity with twenty or more employees).


      1   Pub. L. No. 90-202 (codified as amended at 29 U.S.C. §§ 621–634).

      2   Pub. L. No. 88-352 (codified as amended at 42 U.S.C. § 2000e et seq).
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                                       No. 18-31277
       Edmiston filed a timely notice of appeal, and this court has jurisdiction
pursuant to 28 U.S.C. § 1291. Edmiston argues on appeal that: (1) LSBDC is
an independent juridical entity that is not entitled to state sovereign
immunity; and that (2) LSBDC is an employer for ADEA purposes. 3 Our
analysis starts and ends with argument (1). 4
                                             II.
       Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) is subject
to de novo review. Johnson v. Hous. Auth. of Jefferson Par., 442 F.3d 356, 359
(5th Cir. 2006). To survive a Rule 12(b)(6) motion to dismiss, “a complaint
must contain sufficient factual matter” to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To state a claim to relief that
is plausible, the claim must be made against a juridical entity that has the
capacity to be sued and “enjoy[s] a separate legal existence.” See Darby v.
Pasadena Police Dep’t, 939 F.2d 311, 313 (5th Cir. 1991) (citation omitted).
Although we must accept as true all factual allegations in the complaint, that
presumption does not extend to legal conclusions. Ashcroft, 556 U.S. at 678.
                                             III.
       The Federal Rules of Civil Procedure direct that the capacity of an entity
which is neither an individual nor a corporation to be sued in federal court is
determined by state law. Fed. R. Civ. P. 17(b)(3). Under Louisiana law,
“[t]here are two kinds of persons: natural persons and juridical persons. A



       3  She also appears to argue that the LSBDC acted in bad faith and that she has been
denied procedural and substantive due process. These arguments are not in the complaint,
and Edmiston does not refer us to anywhere in the record where they were raised before the
district court. We do not consider theories of relief raised for the first time on appeal. See
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).

       As such, we do not address whether the LSBDC is an “employer” for the purposes of
       4

the ADEA.
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                                      No. 18-31277
natural person is a human being. A juridical person is an entity to which the
law attributes personality, such as a corporation or a partnership.”             La. C. C.
Art. 24. The Louisiana Supreme Court has held that “[i]n the absence of
positive law to the contrary, a local government unit may be deemed to be a
juridical person separate and distinct from other government entities, when
the organic law grants it the legal capacity to function independently and not
just as the agency or division of another governmental entity.” Roberts v.
Sewerage & Water Bd. of New Orleans, 634 So. 2d 341, 347 (La. 1994).
       Edmiston marshals several data points supporting her argument that
the LSBDC is an independent juridical entity and not an arm of the Board of
Supervisors.     First, she points to an opinion from the Supreme Court of
Virginia, which she argues held that a Virginia small business development
center was a juridical entity that could be sued and was not entitled to state
sovereign immunity. See Dr. William E.S. Flory Small Bus. Dev. Ctr., Inc. v.
Commonwealth, 541 S.E.2d 915 (Va. 2001). Second, she points to an alleged
agreement between the U.S. Small Business Administration (SBA) and the
LSBDC which states that “the SBDC state/regional director must have full
authority to manage and implement the budget without restrictions from the
host entity.” 5 Third, she points to the LSBDC’s website, which she notes is a
“.org,” and not a “.gov” or “.edu.” Fourth, she points to a Louisiana statute
directing that the Louisiana Workforce Advisory Council shall be comprised of,
inter alia, the LSBDC and several other organizations from the “general
business community.” La. Rev. Stat. § 23:2043(11)(c)(xi). Fifth, she asserts,
without citation, that the LSBDC can accept separate donations and is a
“juridical legal tax-exempt entity in accord with the [I.R.S.].”


       5 Edmiston cites the text of an announcement hosted online, and her brief does not
direct this court to where, if anywhere, an actual agreement between the LSBDC and the
SBA can be found in the record. However, the Appellee’s brief does not challenge this point.
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                                       No. 18-31277
      The Appellee responds by observing that the statute creating the LSBDC
office in question explicitly says that it “shall be subject to the constitutional
authority of the Board of Regents and the Board of Supervisors for the
University of Louisiana System.” See La. Rev. Stat. § 17:1812(A). As far as
the Appellee is concerned, this ends the inquiry. The Appellee asserts that
LSBDC’s agreement with the SBA and its enumeration among organizations
from the “general business community” in La. Rev. Stat. § 23:2043(11)(c)(xi)
cannot overcome the fact that the positive law establishing the LSBDC places
it under the authority of the Board of Supervisors. Lastly, the Appellee asserts
that any reliance on the Virginia Supreme Court’s decision in Flory would be
in error, because the small business development center at issue there was a
non-stock corporation, whereas here the LSBDC is not a corporation.
      We agree with the Appellee that the LSBDC is not an independent
juridical entity under Louisiana law. Under Louisiana law, a governmental
entity is an independent juridical entity when “the organic law grants it the
legal capacity to function independently and not just as the agency or division
of another governmental entity.” Roberts, 634 So. 2d at 347. The parties have
not briefed, nor have we discovered, any Louisiana caselaw to specifically
address whether an entity like the LSBDC would be a juridical entity.
Nonetheless, we will make an Erie guess 6 that the Supreme Court of Louisiana
would not hold the LSBDC to be an independent juridical entity.
      By statute, the LSBDC office at issue in this case was “establish[ed] and
operate[d]” by Northwestern State University at Natchitoches and expressly
made “subject to the constitutional authority of the Board of Regents and the
Board of Supervisors for the University of Louisiana System.” La. Rev. Stat.
§ 17:1812(A). Edmiston does not point us to any positive law enacted by the


      6   See generally Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
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                                  No. 18-31277
State of Louisiana that departs from La. Rev. Stat. § 17:1812(A) to vest the
LSBDC with the legal capacity to function independently of the Board of
Supervisors. In that respect, the relationship between the LSBDC and the
Board of Supervisors seems analogous to that between a Louisiana sheriff’s
office and a Louisiana sheriff, where we have held that Louisiana sheriffs are
juridical entities that can be sued, but Louisiana sheriff’s offices are not. See
Cozzo v. Tangipahoa Parish Council—President Gov’t, 279 F.3d 273, 283 (5th
Cir. 2002); see also Ferguson v. Stephens, 623 So.2d 711, 714–15 (La. App. 4th
Cir. 1993) (noting that “the Jefferson Parish Sheriff’s Office was simply an
office operated by the Sheriff of Jefferson Parish whose authority is derived
from the state constitution” (citing La. Const. art. 5, § 27)).
      Therefore, we conclude that the LSBDC is not an independent juridical
unit capable of being sued, and that the proper party to name as a defendant
would have been the Board of Supervisors.
      Furthermore, the Board of Supervisors is an arm of the state entitled to
state sovereign immunity against claims brought under the ADEA.                See
Richardson v. S. Univ., 118 F.3d 450, 456 (5th Cir. 1997) (holding the Board of
Supervisors to be an arm of the state); Kimel v. Fla. Bd. of Regents, 528 U.S.
62, 67 (2000) (holding that the ADEA did not validly abrogate state sovereign
immunity).     As such, amending the complaint to name the Board of
Supervisors as a defendant in this case would have been futile. See Rio Grande
Royalty Co. v. Energy Transfer Partners, L.P., 620 F.3d 465, 468 (5th Cir. 2010)
(noting the district court “acts within its discretion in denying leave to amend
where the proposed amendment would be futile because it could not survive a
motion to dismiss”).
      For those reasons, the district court’s dismissal for failure to state a
claim is AFFIRMED.


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