* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30349

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,

United States Court of Appeals

Fifth Circuit

F I L E D

February 5, 2009

Charles R. Fulbruge III

Clerk
No. 07-30349

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).

2

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
No. 07-30349

3

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 againstLouisiana 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
No. 07-30349

4

(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, butthat 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
No. 07-30349

5

sanctions againstthem. We DENY both motions for sanctions, and AFFIRM the

decision of the district court in all regards.