Regenbogen v. United States of America et al

Filing 73

ORDER AND REASONS that Pemco's 54 Motion to Dismiss for Failure to State a Claim is GRANTED and Plaintiff's claims against it are DISMISSED with prejudice, at Plaintiff's cost, pursuant to Federal Rule of Civil Procedure 12(b)(6). Signed by Judge Eldon E. Fallon on 2/17/2017. (cms)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DAVID REGENBOGEN

CIVIL ACTION

VERSUS

NO. 14-1494

UNITED STATES OF AMERICA, ET AL.

SECTION “L” (4)

ORDER AND REASONS
Before the Court is Defendant Pemco Ltd.’s 12(b)(6) Motion to Dismiss Plaintiff David
Regenbogen’s claims on the grounds that they are prescribed. (R. Doc. 54). Having considered
the parties’ motions and the applicable law, the Court now issues this Order and Reasons.
I.

BACKGROUND

This lawsuit arises out of injuries allegedly sustained by Plaintiff David Regenbogen
(“Plaintiff” or “Regenbogen”) on November 2, 2012, while he visited a property that was for sale
at 5601 York Street in Metairie, Louisiana. (R. Doc. 1). Plaintiff seeks damages for severe
injuries he allegedly sustained when he fell as a result of a hazardous and dangerous condition on
the property, specifically a “slippery surface located on the back deck of the home.” (R. Doc. 21
at 1).
Following the accident, Plaintiff initially filed suit on November 1, 2013, against, inter
alia, the United States of America d/b/a U.S. Department of Housing and Urban Development
(“HUD”), pursuant to the Federal Tort Claims Act (“FTCA”). At the time the suit was filed,
Plaintiff had not exhausted all administrative remedies under the FTCA – Plaintiff’s Form 95
was still pending. Accordingly, HUD filed a Motion to Dismiss for lack of subject matter
jurisdiction. On June 2, 2014, this Court granted the United States’ Motion to Dismiss,

dismissing Plaintiff’s lawsuit as premature pending the outcome of the Form 95 and
investigation by the HUD.
On or about March 26, 2014, HUD sent notice that Plaintiff’s claim filed through Form
95 was denied. Upon receiving this denial, Plaintiff had exhausted all administrative remedies
allowed to him under the law. Accordingly, on June 26, 2014, Plaintiff re-filed his suit, naming,
inter alia, HUD as a defendant. (R. Doc. 1). Then, on January 6, 2015, Plaintiff filed an
Unopposed Motion to dismiss certain defendants and to “Substitute Cityside Management Corp.,
and Pemco Ltd for [HUD].” (R. Doc. 21). In his motion, Plaintiff stated:
Through the initial litigation process, it has become apparent that the
oversight, maintenance, management and preservation services for
the property located at 5601 York Street, Metairie Louisiana was in
fact contracted out to and the sole responsibility of both Cityside
Management Corp. and Pemco Ltd.
Id. On January 7, 2015, the Court granted Plaintiff’s Motion to Dismiss, thereby dismissing
Plaintiff’s claims against Shawn Thomas, State Farm Fire and Casualty Company, Action Realty
Inc. d/b/a Century 21 Action Realty and XYZ Corporation and substituting Cityside
Management Corp. (“Cityside”) and Pemco Ltd. (“Pemco”) as Defendants in place of HUD. (R.
Doc. 22). Thereafter, on February 25, 2015, a summons was issued to Pemco, through its
registered agent, requesting service of the instant action. (R. Doc. 25-1).
On October 12, 2015, Cityside filed a Motion to Dismiss arguing Plaintiff’s claims
against it were prescribed. (R. Doc. 40). The Court granted that Motion on November 18, 2015.
(R. Doc. 50). Plaintiff filed a notice of appeal on December 17, 2015. (R. Doc. 53). Defendant
Pemco filed this Motion to Dismiss on January 22, 2016. (R. Doc. 54). On March 19, 2016, this
Court stayed and administratively closed the case pending the outcome of the aforementioned
appeal. (R. Doc. 63). However, on June 27, 2016, the Fifth Circuit dismissed the appeal for lack
of jurisdiction, finding the appeal premature because it had been filed before all claims and
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parties were disposed of. (R. Doc. 64). Thereafter, the case was reopened and this Motion was
re-set for submission.
II.

PRESENT MOTION

Pemco moves to dismiss Plaintiff’s claims pursuant to Federal Rule of Civil Procedure
12(b)(6). In the instant action, filed on June 26, 2014, Plaintiff alleges that his injuries were
sustained on November 2, 2012, more than one year before the date of filing. The parties do not
dispute that the Plaintiff’s claims against Pemco are subject to a one-year prescriptive period.
However, the parties do dispute whether (1) the applicable one-year prescriptive period was
interrupted and (2) whether Plaintiff’s claims against Pemco relate back to the date of Plaintiff’s
original complaint. The Court will address each argument in turn.
III.

STANDARD OF REVIEW

The Federal Rules of Civil Procedure permit a defendant to seek dismissal of a complaint
based on the “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
A district court must construe facts in the light most favorable to the nonmoving party. The court
must accept as true all factual allegations contained in the complaint. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted).
Dismissal is appropriate only if the complaint fails to plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corporation et al. v. William Twombly, 550 U.S.
544, 570 (2007).

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Prescription may be raised in a Rule 12(b)(6) motion to dismiss. See Tigert v. Am.
Airlines Inc., 390 F. App’x 357 (5th Cir. 2010) (affirming dismissal of time-barred claim under
12(b)(6)). A prescriptive defense supports dismissal under 12(b)(6) “where it is evident from the
plaintiff’s pleadings that the action is barred and the pleadings fail to raise some basis for tolling
or the like.” Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003); Anderson v. City of New
Orleans, No. CIV.A. 03-3010, 2004 WL 1396325, at *3 (E.D. La. June 18, 2004) (“A complaint
is subject to dismissal for failure to state a claim upon which relief can be granted if the
prescriptive period has run.”).
IV.

LAW AND ARGUMENT

Liberative prescription is a method of barring actions due to inaction. La. C. C. art. 3447.
The type of action that a plaintiff brings determines the applicable prescriptive period. Starns v.
Emmons, 538 So.2d 275, 277 (La. 1989). A delictual action, like the one Plaintiff brings against
Pemco, is subject to a liberative prescription of one year, which begins to run on the date the
injury or damage is sustained. La. C. C. art. 3492. Generally, prescription statutes are strictly
construed against prescription and in favor of the claim sought to be extinguished by it. Bailey v.
Khoury, 04–620 (La.1/20/05), 891 So.2d 1268, 1275.
A. The prescriptive period was not interrupted pursuant to La. C. C.
art. 3462
La. C. C. art. 3462 controls how prescriptive periods are generally interrupted:
Prescription is interrupted when the owner commences action
against the possessor, or when the obligee commences action against
the obligor, in a court of competent jurisdiction and venue. If action
is commenced in an incompetent court, or in an improper venue,
prescription is interrupted only as to a defendant served by process
within the prescriptive period.
Both Plaintiff’s original complaint and the instant action allege an injury sustained on November
2, 2012. Although Plaintiff filed his original complaint within the applicable one-year period,
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this filing did not operate as an interruption of the prescriptive period because the Defendant was
not a party to the lawsuit at the time.
Pursuant to La. C. C. art. 3462, the running of prescription may be interrupted by the
timely filing of an action in one of two circumstances: (1) the court in which the action is filed is
competent, or, if not, (2) service of process on the defendant is perfected before prescription has
run. In this instance, neither of these circumstances have been satisfied. Under Louisiana law, a
court is competent if it has jurisdiction over the subject matter and is a proper venue for the
action. La. C. C. art. 5251(4). In this instance, Plaintiff’s original complaint was insufficient to
interrupt prescription as, at the time of the filing, this Court did not have subject matter
jurisdiction over Plaintiff’s claims. Further, since Pemco was not named as a defendant to
Plaintiff’s original complaint, service was not perfected on Pemco within the appropriate
prescriptive period.
B. The prescriptive period was not interrupted pursuant to La. C. C. art.
1799
Identifying more ways that prescriptive periods can be interrupted, La. C. C. at. 1799
provides that “[t]he interruption of prescription against one solidary obligor is effective against
all solidary obligors and their heirs.” Under La. C. C. art. 1794, “[a]n obligation is solidary for
the obligors when each obligor is liable for the whole performance. A performance rendered by
one of the solidary obligors relieves the others of liability toward the obligee.” Further, “an
obligation may be solidary though for one of the obligors it is subject to a condition or term.” La.
C. C. art. 1798.
Plaintiff argues that Pemco is a solidary or joint obligor with HUD because it entered into
a contract to market and sell the property. R. Doc. 72. However, Plaintiff offers no support for its
argument that a contract’s indemnification clause creates a solidary relationship. Moreover,

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under Louisiana law, parties are solidarily liable to the extent they share coextensive liability to
repair certain elements of the same damage.” Glasgow v. PAR Minerals Corp., 70 So. 3d 765,
772 (La. 5/10/11). Here, Plaintiff has not met its burden to prove that Pemco was a solidary
obligor in conjunction with any of the defendants, including HUD. Toomer v. A-1 Fence &
Patio, Inc., 2008-2197 (La. App. 1 Cir. 10/27/09), 29 So. 3d 609, 611-12 (La. Ct. App. 2009)
(“[W]hen the plaintiff’s basis for claiming an interruption of prescription is solidary liability
between two or more parties, the plaintiff bears the burden of proving that a solidary relationship
exists.”). In fact, HUD has no obligation to the Plaintiff and cannot be considered an “obligor,”
solidary or otherwise. See Etienne v. Nat’l Auto. Ins. Co., 1999-2610 (La. 4/25/00), 759 So. 2d
51, 56 (La. 4/25/00) (“Filing suit against a party who is later determined to be without obligation
to the plaintiff does not interrupt prescription against a purported solidary obligor who was not
timely sued.”). 1
C. Plaintiff’s claims against Pemco do not relate back to the date of his
complaint against HUD
Notwithstanding the foregoing, Plaintiff’s claims against HUD were not prescribed
because the Form 95 interrupted prescription. As was discussed above, before a lawsuit may be
filed under the FTCA, a Plaintiff must first exhaust all his administrative remedies. 28 U.S.C. §
2675. The requirement of exhaustion of remedies is a jurisdictional requisite to the filing of an
action under the FTCA. McAfee v. 5th Circuit Judges, 884 F.2d 199, 204 (5th Cir. 1981). The
purpose of the requirement that notice of the claim must be presented to the implicated agency
before suit may be filed under the FTCA is to provide sufficient opportunity to resolve the matter

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Because this Court finds that PEMCO and HUD are not solidarily liable, Plaintiff’s argument that
prescription may be interrupted by a timely suit filed against an immune defendant is moot.

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at the administrative level without the necessity of judicial intervention. Montoya v. United
States, 841 F.2d 102, 104 (5th Cir. 1988).
The prescriptive period for the FTCA is outlined in 28 U.S.C. § 2401(b) and states:
[A] tort claim against the United States shall be forever barred unless
it is presented in writing to the appropriate Federal agency within
two years after such claim accrues or unless action is begun within
six months after the date of the mailing, by certified or registered
mail, of notice of final denial of the claim by the agency to which it
was presented.
HUD received a claim for injury damages from Plaintiff on October 13, 2013. Plaintiff received
notice of the denial of his claim by HUD on March 26, 2014, indicating that his administrative
claim had been denied and that he could bring suit against United States in district court within
six months of the denial. Plaintiff proceeded to file the instant lawsuit on June 26, 2014, well
within the six month prescriptive period allowed under the FTCA. Therefore, Plaintiff’s lawsuit
against HUD was timely filed.
Accordingly, the question now before the Court is whether Plaintiff’s substitution of
Pemco for the HUD relates back to the filing of Plaintiff’s complaint on June 26, 2014. Federal
Rule of Civil Procedure 15(c) allows a plaintiff to amend a pleading to change a party even if the
amendment is filed after the statute of limitations has run against the party to be added if that
party has been sufficiently put on notice. Rule 15(c) provides:
(c) Relation Back of Amendments.
(1) When an Amendment Relates Back. An amendment to a
pleading relates back to the date of the original pleading
when:
(A) the law that provides the applicable statute of
limitations allows relation back;
(B) the amendment asserts a claim or defense that arose
out of the conduct, transaction, or occurrence set out-or attempted to be set out--in the original pleading;
or
(C) the amendment changes the party or the naming of
the party against whom a claim is asserted, if Rule
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15(c)(1)(B) is satisfied and if, within the period
provided by Rule 4(m) 2 for serving the summons and
complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not
be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would
have been brought against it, but for a mistake
concerning the proper party’s identity.
Rule 15(c)(1) allows an amended pleading to relate back when “relation back is permitted by the
law that provides the statute of limitations applicable to the action.” Id; see also Maltese v. Keller
Indus., Inc., 853 F. Supp. 945, 948-51 (E.D. La. 1994). The Louisiana statute of limitations is
applicable to this action. Under Louisiana law, “[w]hen the action or defense asserted in the
amended petition or answer arises out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, the amendment relates back to the date of filing
the original pleading.” La. C. Civ. P. art. 1153.
The Louisiana Supreme Court in Ray v. Alexandria Mall established the following
criteria for determining when article 1153 permits an amendment naming a new party to relate
back to the date of the filing of the original petition:
(1) The amended claim must arise out of the same transaction or
occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of
the institution of the action such that he will not be prejudiced in
maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have
known that but for a mistake concerning the identity of the
proper party defendant, the action would have been brought
against him;
(4) The purported substitute defendant must not be a wholly new or
unrelated defendant, since this would be tantamount to assertion
of a new cause of action which would have otherwise prescribed.

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With certain limited and irrelevant exceptions, Federal Rule of Civil Procedure 4(m) requires service of complaints
within 120 days after filing.

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434 So.2d 1083, 1086–87 (La. 1983) (emphasis added). Applying these criteria to the case sub
judice, the amended claim arises out of the same transaction in the original suit, as the amended
claim merely substitutes a different party. Therefore, the first Ray criterion is met.
The second requirement is that the purported substitute defendant must have received
notice of the action such that he will not be prejudiced in maintaining a defense. Pemco argues
that this means notice within 120 days of the date Plaintiff’s complaint was filed pursuant to
Rule 15(c)(1)(C). Plaintiff argues that Pemco had constructive notice of the suit because Century
21, who they contend were Plaintiff’s agent, had notice of the original complaint filed on
November 1, 2013. R. Doc. 72 at 9.
There has been no evidence presented to show that Pemco received any notice of the
instant action within 120 days after suit was filed. Indeed, a summons requesting service of the
instant action upon Pemco was not requested until February 25, 2015, which was over seven
months after the filing of the instant action. However, pursuant to Louisiana law and article
1153, the critical inquiry is whether the defendant is prejudiced by the untimely filing. Therefore,
the Court must determine whether Pemco received notice of the action such that it will not be
prejudiced in maintaining a defense.
In support of his argument that the amended petition relates back to the original petition,
the Plaintiff relies on Findley v. City of Baton Rouge, 570 So.2d 1168 (La.1991), reh’g denied,
Jan. 17, 1991. The plaintiff in Findley was injured in a public park in Baton Rouge, Louisiana,
and filed suit (within the prescriptive period) against the City of Baton Rouge, alleging that his
injuries were caused by a defective condition in a park roadway. Approximately 15 months after
the plaintiff’s accident, the City discovered that the park was owned by the Recreation and Park
Commission for the Parish of East Baton Rouge (BREC) and that the city had never owned,

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maintained, or controlled the property or its roadways. The City thereafter filed a motion for
summary judgment seeking dismissal, which was granted, and the plaintiff filed an amended
petition naming BREC as a defendant.
The trial court dismissed BREC on the basis of prescription, and the court of appeals
affirmed. The Louisiana Supreme Court reversed, finding that the Ray criteria had been met. Id.
The amended petition related back because (1) the two defendants were closely related and (2)
BREC was not prejudiced by the untimely filing given that the City notified BREC of its
investigation of the lawsuit shortly after the incident. Id. at 1171. The instant matter is factually
distinguishable from Findley in both these regards.
i. Cityside and HUD are not sufficiently closely related
In Findley, the relationship between the City of Baton Rouge and BREC was a “very
close relationship” such that notice to the City served as notice to BR. Id. at 1172. In fact, the
Louisiana Supreme Court characterized the relationship between them as “much the same as that
between a parent corporation and a subsidiary which is a separate legal entity.” Id. at 1171-72.
The relationship between Cityside and the United States, a contractual indemnity relationship, is
not a close relationship akin to that between a parent corporation and subsidiary.
Plaintiff fails to support their argument that agency relationship is sufficient for Pemco
and Century 21 to have an identity of interest. To find that a petition relates back, “[t]he original
and the new defendant must have an identity of interest. An identity of interest has been found
between a parent corporation and a wholly owned subsidiary and between corporations with
interlocking officers. The relationship must be such that there is an inference of notice.” Std. Fire
Ins. Co. v. Safeguard Storage Props., L.L.C., 04-794 ( La. App. 5 Cir 01/25/05), 894 So. 2d 502,
506. The court in Standard Fire found that the two defendants did not have an identity of interest

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even when they had the same counsel and shared a board member. Id. The entities had different
corporate residences and different agents for service of process. Further, the court found that
[t]here has been no showing that Safeguard had any control over
Fifteen, nor that Safeguard Storage is the parent corporation of
Fifteen. Indeed, there has been no showing that Safeguard Storage
and Fifteen are sufficiently related so as have an identity of interest.
Stated another way, Standard has not shown any duty owed to it by
Safeguard Storage.
Id. at 508. The relationship between Pemco and Century 21 in the instant case is even further
removed than the corporate relationship considered in Standard Fire. While Pemco contracted
with Century 21 to provide certain services at the Property this relationship is, at most, one of
agency, and is insufficient for identity of interest. There is no evidence the corporates shared
personnel or officers, nor is there any evidence that either party issued a measure of control over
the other. Plaintiff has failed to demonstrate a relationship between Century 21 and Pemco such
that notice to Century 21 constitutes notice to Pemco.
Further, the relationship between Pemco and the United States is analogous to the
relationship between defendants in Morris v. Westside Transit Line, 841 So.2d 920 (2003). In
Morris, an injured pedestrian brought an action against Westside Transit Line and American
Transit Corporation after she fell at a bus stop, which was allegedly under the care, custody, and
control of the named defendants. 841 So.2d 920 (2003). ATC/Vancom, which had been
improperly named as Westside Transit Line and American Transit Corportation, answered the
petition. ATC/Vancom subsequently filed a motion for summary judgment arguing that it had no
ownership or maintenance responsibility over the bus stop and that Jefferson Parish owned the
land upon which the bus stop was located. Plaintiff, after the prescriptive period had run, filed an
amended petition naming Jefferson Parish as a defendant to the proceedings. A second amended
petition was also filed naming Ferdinand Cerruti as an additional defendant.

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Thereafter, Jefferson Parish and Cerruti filed exceptions of prescription arguing
plaintiff’s claims against them were untimely lodged. In opposition to those exceptions, Morris
submitted evidence of a contract between Jefferson Parish an ATC/Vancom which called for
transit management services and included an indemnity agreement in favor of Jefferson Parish.
The trial court maintained defendants’ exceptions of prescriptions, dismissing plaintiff’s claims
against Jefferson Parish and Cerruti. An appeal followed wherein plaintiff contended, inter alia,
that the amended petitions filed against Jefferson Parish and Cerruti related back to the timely
filed original petition. The Louisiana Fifth Circuit Court of Appeal upheld the trial court’s
decision granting defendants’ exceptions of prescription, reasoning as follows:
In the present case, there is no evidence that ATC/Vancom had any
type of identity of interest or a sufficient connexity of relationship
with Jefferson Parish. There is no evidence that Jefferson Parish was
notified of the lawsuit during the prescriptive period or that
Jefferson Parish would not be prejudiced by the failure to receive
notice with the statutory prescriptive period. Rather, the record
shows that the Parish of Jefferson is a not a related party to the party
timely sued, and as such, the amended petition does not relate back
to the original petition pursuant to La. C.C.P. art. 1153.
Id. at 926. In the instant matter, as in Morris, Plaintiff has not shown a “sufficient connexity of
relationship” between the United States and Pemco such that notice of the suit to the United
States served as notice to Pemco. The only evidence presented by Plaintiff in support of his
relation back argument is the contract between the United States and Pemco. Plaintiff has not
presented any evidence to show that the parties are connected in any other way nor has he shown
that Pemco was put on notice of his claim prior to its being named as a Defendant and receiving
the summons issued in this matter.
ii. Cityside was prejudiced by Plaintiff’s untimely filing
In Findley, the amended petition did not prejudice BREC in preparing and conducting its
defense:
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BREC did not dispose of any documents or suffer the loss of any
witnesses who became unavailable because of the delay. There was
no prejudice by loss of opportunity to investigate, because the City,
upon being notified by the filing of the suit approximately six weeks
after the accident, did perform an investigation. It is undisputed that
the material gathered in the City’s investigation (which includes
photographs of the pot hole taken by the plaintiff’s agent on the day
of the accident) has been made available to BREC, which is an
agency established to provide recreational services to the citizens of
the City
Findley, 570 So.2d at 1171. In the instant matter, there was no notice to Pemco by any timelynamed defendant nor was an investigation into Plaintiff’s injuries conducted either on Pemco
behalf or by a party with sufficient “connexity of interests.”
Plaintiff has claimed significant personal injuries resulting from the November 2, 2012
incident including both a neck surgery performed in November 2012 and a back surgery
performed in July 2014. By the time Cityside was substituted as a Defendant in this matter, both
of the Plaintiff’s surgeries had taken place thereby prohibiting Cityside from obtaining a presurgery independent medical examination (“IME”), which prejudices Cityside’s defense of this
suit. While Plaintiff argues his injuries were severe and emergent, thus preventing an IME in any
case, the untimely addition of Pemco also prevented them from inspecting the Property where
the alleged injury occurred. By the time Pemco received notice of the suit, many months had
passed and the Property had been sold. The delay in notice prevented Pemco from conducting
any useful inspection of the Property. Accordingly, the lack of timely notice is unduly prejudicial
to Pemco’s defense in this case.
Because the second Ray criterion is not met, the Court need not analyze the remaining
third and fourth criteria.

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V.

CONCLUSION

For the foregoing reasons, the Plaintiff’s claims against Pemco are time-barred. Thus, IT
IS ORDERED that Pemco’s motion to dismiss (R. Doc. 54) is GRANTED and Plaintiff’s
claims against it are DISMISSED with prejudice, at Plaintiff’s cost, pursuant to Federal Rule of
Civil Procedure 12(b)(6).

New Orleans, Louisiana, this 17th day of February, 2017.

UNITED STATES DISTRICT JUDGE

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