Barrack Childrens Irrevocable Trust et al v. Pailet et al
Filing
25
ORDER AND REASONS granting 11 Motion to Dismiss Case without prejudice as set forth in document. Signed by Judge Ivan L.R. Lemelle. (ijg, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THE BARRACK CHILDREN’S
IRREVOCABLE TRUST, ET AL
CIVIL ACTION
VERSUS
NO. 12-00784
KENNETH C. PAILET, ET AL
SECTION: “B”(2)
ORDER AND REASONS
Before the Court is Defendants’ Kenneth C. Pailet (“Pailet”)
and Pailet, Meunier and LeBlanc, L.L.P. (“PML”), collectively
(“Defendants”)1 Rule 12(b)(6) Motion to Dismiss.
11).
(Rec. Doc. No.
In opposition, The Barrack Trust, Dr. and Mrs. Robert L.
Barrack,
Cathey
N.
Grossman,
and
Jonathan
A.
collectively (“Plaintiffs”), filed response thereto.
No. 13).
Barrack,
(Rec. Doc.
For the reasons stated below,
IT IS ORDERED that the Defendants’ Motion to Dismiss is
GRANTED WITHOUT PREJUDICE, allowing parties to proceed before the
accounting review panel.
Procedural History
Plaintiffs
alleging
filed
professional
malpractice,
breach
the
of
contract
June
4,
2012,
action
on
March
breach
negligence,
capacity as tax preparers.
On
instant
of
fiduciary
against
Defendants
23,
2012
duty,
in
their
(Rec. Doc. No. 1 at 5).
Plaintiffs
filed
its
First
Amended
Complaint in response to Defendants’ Motion to Dismiss, adding
1
CAMICO Insurance Company is also a Defendant in the instant action but is not
join this instant motion. (Rec. Doc. No. 12 at 3).
Grossman and Jonathan A. Barrack as plaintiffs to the suit.2
(Rec.
Doc.
No.
12
at
1).
Plaintiffs
alleged
that
the
two
additional plaintiffs are Trustees to the Toby Barrack Trust and
Adam Barrack Trust.
(Rec. Doc. No. 12 at 2).
Additionally,
Grossman and Jonathan Barrack are alleged to be co-trustees of
the original Barracks Trust.
(Rec. Doc. No. 12 at 2).
Law and Analysis
A. Standard of Review
Rule
12(b)(6)
of
the
Federal
Rules
of
Civil
Procedure
permits a complaint to be dismissed for “failure to state a claim
upon which relief can be granted.”
FED. R. CIV. P. 12(b)(6).
A
motion to dismiss under 12(b)(6) attacks the legal sufficiency of
the complaint.
Cir. 2001).
Ramming v. United States, 281 F.3d 158, 161 (5th
The court must accept all well-pleaded factual
allegations as true and view them in the light most favorable to
the plaintiff.
1996).
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.
Additionally, “[f]actual allegations must be enough to
raise a right to relief above the speculative level.”
Corp. v. Twombley, 550 U.S. 544, 555 (2007).
Bell Atl.
A plaintiff has an
“obligation to provide the ‘grounds’ for his ‘entitlement to
relief,’ [and that] requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action.”
Id.
In order for a complaint to survive a motion to dismiss, it
2
In the First Amended Complaint, Plaintiffs also specifically identified CAMICO
as Defendants’ insurer. (Rec. Doc. No. 12 at 3).
2
must contain sufficient factual matter, accepted as true, to
state a claim for relief that is plausible on its face. Gonzales
v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). For a court to determine the
plausibility of a claim, a court is required to draw on its
common sense and experience in a context specific manner.
Iqbal,
556 U.S. at 678.
B. Louisiana Law Requires Plaintiffs to Present the Claims
Against a CPA, Accounting Firm, or its Insurer to an Accountant
Review Panel Prior to Commencing Litigation
Applicable Louisiana law requires that any action against a
certified pubic accountant, the firm, or the insurer, may not be
filed
in
any
court
prior
accountant review panel.
to
presenting
the
claims
LA. REV. STAT. ANN. § 37:105.3
to
an
If an
action is determined to be premature, then that action must be
dismissed under the Louisiana Code of Civil Procedure.
LA. CODE
CIV. PROC. ANN. art. 933 (2012); see Solow v. Heard, McElroy &
Vestal, L.L.P., 937 So. 2d 875, 878 (La. Ct. App. 4 Cir. 2005).
Dismissal without prejudice of premature claims is wellestablished under Louisiana law.
In Solow, the Louisiana Fourth
Circuit Court of Appeal dismissed the plaintiffs’ claim because
the
plaintiffs
did
not
follow
the
appropriate
presenting a claim against an accounting firm.
3
procedure
for
Solow, 937 So. 2d
Section 37:105 states: “[n]o action against a certified public accountant or
firm or his insurer may be commenced in any court before the claimant’s request
for review has been presented to a public accountant review panel . . . and the
panel has issued a written opinion.” LA. REV. STAT. ANN. § 37:105(A).
3
at 876.
The court found that the plaintiffs did not obtain an
agreement
accountant
requiring
to
waive
review
the
panel,
dismissal.
requirement
thereby
Id.
at
of
presentment
violating
878
(“When
to
the
statute
and
exception
of
the
an
prematurity is sustained . . . the court is required to dismiss
the action.”)
In
Desselles
v.
Brumfield,
the
Louisiana
Fourth
Circuit
Court of Appeal found that a suit for medical malpractice was
premature because the plaintiffs failed to present claims of
medical malpractice to a medical review panel, as required by
statute.4 Desselles v. Brumfield, 386 So. 2d 191, 193 (La. Ct.
App. 4 Cir. 1980), overruled on other grounds, Barracliff v. E.
Jefferson Gen. Hosp., 573 So. 2d 1200, 1203 (La. Ct. App. 4 Cir.
1991).
Federal courts in Louisiana have applied the same rule that
Louisiana state courts have applied. In Williams v. Webre, this
Court
upheld
the
dismissal
of
premature
medical
malpractice
claims because the complaint was filed prior to presentation of
the claims to the medical panel.
Williams v. Webre, No. 02-0599,
U.S. Dist. LEXIS 12892, at *2 (E.D. La. July 9, 2002).
The court
found that the plaintiff’s failure to comply with the statute
required dismissal of the case.
Id.
4
The relevant statute provides, “[n]o action against a health care provider
covered by this Part, or his insurer, may be commenced in any court before the
claimant’s proposed complaint has been presented to a medical review panel
established pursuant to this Section.” LA. REV. STAT. ANN. § 40:1299.47(B).
4
In the present case, viewing the facts in a light most
favorable to Plaintiffs, the claims against Defendants must be
dismissed as premature because Plaintiffs failed to follow the
appropriate
37:105.
statutory
Plaintiffs
procedures.
have
not
See
presented
LA. REV. STAT. ANN.
the
claims
to
§
the
accountant review panel and Louisiana law requires dismissal of
said claims.
LA. CODE CIV. PROC. art 933; Williams, U.S. Dist.
LEXIS 12892, at *4; Solow, 937 So. 2d at 876; Desselles, 386 So.
2d at 192.
Although Plaintiffs concede that the claims have not been
presented to an accountant review panel, Plaintiffs nevertheless
seek to stay the proceedings, allowing them time to present the
claims to the panel.5
(Rec. Doc. No. 13 at 4-5). Plaintiffs cite
several cases decided by this Court that seem to support their
position.
(Rec. Doc. No. 13 at 4-5).
However, decisions to
grant a stay generally occurred when there was a panel or other
ongoing administrative proceeding.
Cargill v. Ferrous Int’l v.
M/V Qiang, No. 07-1330, 2009 WL 911087, at *5-6 (E.D. La. Mar.
31, 2009) (granting a stay in proceedings because a portion of
the dispute was in arbitration); Sousa v. Prosser, No. 03-2942,
2004 WL 1497764, at *4 (E.D. La. Jul. 1, 2004) (granting a stay
in proceedings because the claim was pending before the medical
5
Plaintiffs reassert identical arguments in their Motion to Stay. (Rec. Doc.
No. 14). Because this Court is granting the Motion to Dismiss without prejudice,
Plaintiffs’ Motion to Stay is moot.
5
review
panel
with
respect
to
two
indispensable
defendants);
Cooper v. Sofamor, No. 92-3111, 1993 WL 17634, at *2 (E.D. La.
Jan. 15, 1993) (granting a stay in the proceedings pending the
outcome of the medical review panel); Maquar v. Synthes, Ltd.,
No. 92-0577, 1992 WL 111199, at *2 (E.D. La. May 14, 1992)
(granting a stay in proceedings because the medical malpractice
claim was pending before the medical review panel).
Because
Plaintiffs have not presented the claims to the accountant review
panel, Plaintiffs have not shown cause for staying the instant
proceeding.
New Orleans, Louisiana, this 27th day of June, 2012.
________________________________
UNITED STATES DISTRICT JUDGE
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