Jordan et al v. State Farm Fire & Casualty Co.
Filing
28
ORDER & REASONS granting 11 Motion for Judgment on the Pleadings. Signed by Judge Martin L.C. Feldman on 5/30/2012. (caa, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MORRIS JORDAN, ET AL.
CIVIL ACTION
v.
NO. 11-1743
STATE FARM FIRE & CAS. 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 U.S. Dist. LEXIS 8582, at *1-4 (E.D. La. Jan. 25, 2012).
On July 15, 2011 plaintiffs filed their supplemental and
amending complaint, which was assigned to this Court.
The
plaintiffs assert that their property was insured by an All Risk
homeowner’s policy and was “substantially damaged” as a result of
Hurricane Katrina.
Essentially cutting and pasting the
allegations of the mass joinder complaint, plaintiffs assert that
State Farm breached its insurance contract and arbitrarily and
capriciously violated its duties of good faith and fair dealing,
entitling plaintiffs to damages, including statutory penalties.
1
Again parroting the mass joinder complaint, 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. 075528, which was filed on September 11, 2007.
Because State Farm was allegedly named as a defendant in these
putative class actions, the plaintiffs assert that the pendency
of the class action litigation interrupted prescription as to
plaintiffs’ claims.
Plaintiffs’ supplemental and amending
complaint is one of sixty-eight 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 is the same as the one for deciding a motion under Rule
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
12(b)(6).
2010).
the
Gentilello v. Rege, 627 F.3d 540, 543-44 (5th Cir.
To survive a Rule 12 motion to dismiss or for judgment on
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 plaintiff to negate the presumption
by establishing that prescription has been suspended or
interrupted.
2.
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 class action until
3
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).
Id. at 729.
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.
2
The Court
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.
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agrees.
A.
The prescriptive deadline for Hurricane Katrina insurance
claims, as well-established and extended by the Louisiana
Legislature, was September 1, 2007.
Although the plaintiffs did
not file their individual claim 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
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
Farm.
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.
Court disagrees.
The
In fact, this Court has previously rejected
identical attempts by the same plaintiffs’ counsel to summarily
invoke the class action tolling doctrine.
See 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 U.S. Dist. LEXIS 8582, at *1-4 (E.D. La. Jan.
25, 2012).
Plaintiffs’ allegation 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 a putative member
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 list of 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
6
plaintiffs do not even suggest eligibility for Road Home benefits
such that their claims would align with the Louisiana Road Home
complaint.
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 30, 2012
_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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