Jourdain et al v. State Farm Fire and Casualty Company
Filing
33
ORDER & REASONS granting 14 Motion for Judgment on the Pleadings. Signed by Judge Martin L.C. Feldman on 5/15/2012. (caa, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LEAH JOURDAIN and
JOSEPH JOURDAIN
CIVIL ACTION
v.
NO. 11-1732
STATE FARM FIRE & CASUALTY CO.
SECTION "F"
ORDER AND REASONS
Before the Court is the defendant’s Rule 12(c) motion for
judgment on the pleadings on the basis of prescription.
For the
reasons that follow, the motion is GRANTED.
Background
This is a Hurricane Katrina insurance coverage dispute.
For
a discussion of the federal class action Katrina litigation prior
to the filing of plaintiffs’ supplemental and amending complaint,
see McKnight et al. v. State Farm Fire & Cas. Co., No. 11-1686,
2012 WL 219024, at *1-4 (E.D. La. Jan. 25, 2012).
On July 15, 2011 the plaintiffs filed their supplemental and
amending
complaint,
which
was
assigned
to
this
Court.
The
plaintiffs assert that their property at 2820 Republic in Orleans
Parish, Louisiana was insured by a State Farm homeowner’s policy
and
sustained
Katrina.
“substantial
damage”
as
a
result
of
Hurricane
Essentially cutting and pasting the allegations of the
mass joinder complaint, the plaintiffs assert that State Farm
breached the insurance contract and arbitrarily and capriciously
1
violated its duties of good faith and fair dealing, entitling
plaintiffs
to
damages,
including
statutory
penalties.
Again
parroting the mass joinder complaint, the plaintiffs suggest that
State Farm was named as a defendant in four putative class actions:
(1)
(2)
(3)
(4)
Connie Abadie, et al. v. Aegis Security Ins. Co., et al., No.
06-5164, which was filed on August 29, 2006;
Susan Abadie, et al. v. Aegis Security Ins. Co., et al., No.
07-5112, which was filed on August 28, 2007;1
The Insurance Master Consol. Class Action Complaint, which was
filed on March 15, 2007 in In re: Katrina Canal Breaches
Consol. Litig., No. 05-4182; and
Louisiana State, et al. v. AAA Ins. Co., et al., No. 07-5528,
which was filed on September 11, 2007.
Because State Farm was named as a defendant in these putative class
actions, the plaintiffs assert, the pendency of the class action
litigation interrupted prescription as to the plaintiffs’ claims.
Plaintiffs’ supplemental and amending complaint is one of about 68
identical complaints filed by the same plaintiffs’ attorney, on the
same day, in the U.S. District Court for the Eastern District of
Louisiana.
State Farm now seeks judgment on the pleadings in its favor on
the ground that the plaintiffs’ claims are prescribed.
I.
A.
The standard for deciding a motion for judgment on the
pleadings under Rule 12(c) of the Federal Rules of Civil Procedure
1
The Louisiana state legislature extended the prescriptive
period to September 1, 2007 for claims on property insurance
policies arising out of Hurricane Katrina.
La.R.S. 22:658.3(A).
2
is the same as the one for deciding a motion under Rule 12(b)(6).
Gentilello v. Rege, 627 F.3d 540, 543-44 (5th Cir. 2010).
To
survive a Rule 12 motion to dismiss or for judgment on the
pleadings, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its
face.’”
Gonzalez
v.
Kay,
577
F.3d
600,
603
(5th
Cir.
2009)(quoting Iqbal, 129 S.Ct. at 1949 (2009))(internal quotation
marks omitted).
“Factual allegations must be enough to raise a
right to relief above the speculative level, on the assumption that
all the allegations in the complaint are true (even if doubtful in
fact).”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
B.
1.
Prescription
The burden of proving prescription rests with the moving
party.
Taranto v. Louisiana Citizens Prop. Ins. Corp., 62 So.3d
721, 726 (La. 2011)(citing Bailey v. Khoury, 891 So.2d 1268, 1275
(La. 2005)).
However, if a petition is prescribed on its face,
then the burden shifts to the plaintiffs to negate the presumption
by
establishing
interrupted.
2.
that
prescription
has
been
suspended
or
Id.
Article 596 Class Action Tolling
Article 596 of the Louisiana Code of Civil Procedure is “a
special provision that prevents prescription from accruing against
the
claims
of
members
of
a
putative
3
class
action
until
the
propriety of the class action or the member’s participation in the
action is determined.” Taranto v. Louisiana Citizens Property Ins.
Corp., 62 So.3d 721, 729 (La. 2011)(citations omitted).
729.
Id. at
Article 596 provides that:
Liberative prescription on the claims arising out of the
transactions or occurrences described in a petition
brought on behalf of a class is suspended on the filing
of the petition as to all members of the class as defined
or described therein. Prescription which has been
suspended as provided herein, begins to run again:
(1) As to any person electing to be excluded from the
class, thirty days from the submission of that person’s
election form;
(2) As to any person excluded from the class pursuant to
Article 592, thirty days after mailing or other delivery
or publication of a notice to such person that the class
has been restricted or otherwise redefined to exclude
him; or
(3) As to all members, thirty days after mailing or other
delivery or publication of a notice to the class that the
action has been dismissed, that the demand for class
relief has been stricken pursuant to Article 592, or that
the court has denied a motion to certify the class or has
vacated a previous order certifying the class.
La.C.C.P. art. 596.2
II.
State Farm contends that it is entitled to judgment on the
pleadings, given that the plaintiffs have not stated plausible
claims for relief because their claims are prescribed.
The Court
agrees.
2
Article 596 was amended in 2010 to provide that
prescription continues to be tolled during the pendency of an
appeal of an order striking class allegations. However, because
the putative class actions invoked by plaintiffs here were filed
in 2007 and the order striking the class allegations was issued
in 2009, the 2010 amendment does not apply.
4
A.
The prescriptive deadline for Hurricane Katrina insurance
claims,
as
well-established
and
Legislature, was September 1, 2007.
not
file
their
individual
claim
extended
by
the
Louisiana
Although the plaintiffs did
until
July
15,
2011,
the
plaintiffs’ claim was originally filed as part of a mass joinder
that was filed on September 13, 2010.
Thus, there can be no
dispute that the plaintiffs did not sue State Farm within the
September 1, 2007 extended prescription deadline.
Because the
plaintiffs’ claims are facially prescribed, the plaintiffs bear the
burden of proving suspension of prescription.
The plaintiffs fall
well short of satisfying their burden to establish that their
claims were suspended.
B.
In an attempt to discharge their burden of proving suspension,
the plaintiffs invoke the class action tolling doctrine, codified
in La.C.C.P. article 596 and recently applied by the state high
court in Taranto,3 suggesting that its application saves their
facially prescribed claims against State Farm.
3
In Taranto v. Louisiana Citizens Property Ins. Corp., the
Louisiana Supreme Court applied La.C.C.P. article 596 and held
that the Taranto plaintiffs’ Katrina lawsuits were timely filed,
reasoning that prescription was suspended upon the timely filing
of certain pending class action suits, which included the Taranto
plaintiffs as putative class members. 62 So.3d 721, 724 (La.
2011).
5
The plaintiffs suggest that they have carried their burden by
summarily concluding in their amended complaint that State Farm was
a named defendant in four putative class actions.
disagrees.
The Court
In fact, this Court has previously rejected identical
attempts by the same plaintiffs’ counsel to summarily invoke the
class action tolling doctrine.
See, e.g., Cascio v. State Farm
Fire and Cas. Co., No. 11-1699, 2011 WL 5439331 (E.D. La. Nov. 9,
2011);
McKnight et al. v. State Farm Fire & Cas. Co., No. 11-1686,
2012 WL 219024, at *1-4 (E.D. La. Jan. 25, 2012).
Plaintiffs’ allegations here -- invoking the same four class
actions asserting the same conclusory allegations relating to
suspension -- fare no better: nowhere in the plaintiffs’ complaint
do they state that they are or were putative members of the class
actions they list; nor do they identify which claims were presented
in those putative class actions; nor do they suggest how their
current claims have identity with the claims presented in the
listed class actions.
Significantly, glaring realities undermine
the plaintiffs’ ability to carry their burden: as State Farm points
out, two class actions invoked by the plaintiffs (Abadie I and the
Master Class) involve attempts to recover for flood damage, whereas
the plaintiffs here seek to recover for wind damage under their
homeowners policy; the plaintiffs do not even suggest eligibility
for Road Home benefits or otherwise state how their claims would
align with the Louisiana Road Home complaint.
6
And as for a fourth
putative class action, Abadie II, even the plaintiffs concede that
State Farm was not named as a defendant.
Accordingly, the defendant’s Rule 12(c) motion for judgment on
the pleadings is GRANTED.
The plaintiffs’ claims are dismissed
with prejudice.
New Orleans, Louisiana, May 15, 2012
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
7
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