Naquin v. Berryland Campers, LLC

Filing 11

ORDER & REASONS: granting 3 Defendants KZRV, LP and Berryland Motors, LLC's Motion to Dismiss. Signed by Judge Carl Barbier on 12/8/14. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

NAQUIN

CIVIL ACTION

VERSUS

NO: 14-2133

BERRYLAND CAMPERS, LLC

SECTION: "J”(5)

ORDER AND REASONS
Before the Court is a Motion to Dismiss (Rec. Doc. 3) filed
by

Defendants

KZRV,

LP

(KZRV)

and

Berryland

Motors,

LLC

(Berryland)1 and Plaintiff Charlotte Naquin's opposition thereto.
(Rec. Doc. 8) Having considered the motion and memoranda of
counsel, the record, and the applicable law, the Court finds that
the motion should be GRANTED for the reasons set forth more fully
below.
PROCEDURAL HISTORY AND BACKGROUND FACTS
This

litigation

derives

from

Plaintiff's

purchase

of

an

allegedly defective 2006 Montego Bay Camper from Berryland on or
about November 28, 2007. (Rec. Doc. 1, p. 2) Plaintiff alleges
that the vehicle was advertised and sold without any mention of
body work, prior collisions or other damage-causing events, or

1

Berryland Motors, LLC, was incorrectly named as Berryland Campers, L.L.C.

1

the incorporation of used parts within the vehicle. Id. at 3.
However, Plaintiff alleges that after delivery and inspection,
she discovered many hidden defects, which "could not be seen by
the buyer at the point of sale." Id. at 2. These defects include
faulty or missing sealing, leakage, rotting, other water damage,
and other missing or faulty parts. Id. at 2-3. Plaintiff and
Defendants then attempted to make repairs and remedy the defects,
with the last of such attempts taking place in December 2010. Id.
at 4. Despite these attempts, Plaintiff alleges that the defects
persist today. Id. at 4.
Plaintiff filed suit in the U.S. District Court for the
Eastern District of Louisiana on September 17, 2014, alleging
that Defendants2 violated Louisiana's Unfair Trade Practices and
Consumer Protection Law (LUTPA) and the Magnuson-Moss Warranty
Act, 15 U.S.C. § 2301, et seq. (MMWA). Id. at 5-8. Defendants
filed the instant Motion to Dismiss (Rec. Doc. 3) pursuant to
Federal Rule of Civil Procedure 12(b)(6) on October 21, 2014.

2

Plaintiff's complaint does not explain KZRV's role in this series of
events. However, Defendants' motion provides some clarification. (Rec. Doc. 3-1,
p. 3 n.2) Defendants explain that the vehicle identification
number of the
vehicle that Plaintiff purchased from Berryland "generally matches [KZRV's]
numbers." Id. Defendant KZRV therefore assumes that it is the manufacturer of
Plaintiff's allegedly defective vehicle. Id.

2

Plaintiff opposed the motion on December 2, 2014.3 (Rec. Doc. 8)
PARTIES' ARGUMENTS
Defendants argue that Plaintiff's LUTPA and MMWA claims are
time-barred and must be dismissed. (Rec. Doc. 3-1, pp. 1-2)
Plaintiff filed the instant litigation in 2014, nearly seven
years after she purchased the allegedly defective vehicle and
almost four years after Defendants' last alleged attempt to cure
the defects. Id. at 2. Although it is not clear when exactly
Plaintiff discovered the alleged defects, Defendants assert that
Plaintiff must have discovered them in October 2011 at the very
latest. Id. at 9. Defendants so argue because Plaintiff filed a
petition

in

state

court

deriving

from

the

same

factual

allegations on October 26, 2011, in which she clearly asserted
claims for redhibition.4 Id. at 9. Plaintiff's LUTPA and MMWA

3

The Court granted Plaintiff's motion for a continuance of the submission
date of Defendants' motion to dismiss on November 4, 2014. The Court reset the
motion for submission on December 3, 2014. Consequently, the deadline for
Plaintiff's opposition was November 25, 2014. Plaintiff again failed to file a
timely opposition. On December 1, 2014, Plaintiff filed a Motion Seeking to File
Opposition Late (Rec. Doc. 7), which was marked as deficient. Plaintiff then
filed her opposition (Rec. Doc. 8) on December 2, 2014, without filing a motion
for leave to file the opposition late. Counsel for Defendants notified the Court
on December 1, 2014, however, that they did not oppose Plaintiff's untimely
filing of her opposition. Although the Court could grant Defendants' meritorious
motion as unopposed, the Court will consider the arguments that Plaintiff
advances in her opposition given Defendants' position.
4

Plaintiff previously filed suit in the 21st Judicial District Court in
Tangipahoa Parish alleging claims for redhibition and for violation of the
Louisiana Lemon Law Statute, Louisiana Revised Statute 51:1491. (Rec. Docs. 3-2,
3-3)

3

claims are perempted or prescribed, respectively, after one year.
Id. at 6, 8. Thus, both Plaintiff's LUTPA and MMWA claims are
time-barred and must be dismissed.
Plaintiff contends that she "clearly makes the prima facie
case of the elements to make feasible claims under [the MMWA] and
[LUTPA]." (Rec. Doc. 8, p. 1) She further argues that these wellpleaded claims are not time-barred. Id. at First, Plaintiff's
LUTPA claim is not perempted because the United States Court of
Appeals for the Fifth Circuit has held that "the continuing
violation doctrine applies to the LUTPA peremptive period." Id.
at 6 (citing Tubos de Acero de Mexico, S.A. v. Am. Int'l Inv.
Corp., Inc., 292 F.3d 471, 481-82 (5th Cir. 2002)). Second,
Plaintiff's
assert

that

MMWA
the

claim

is

ten-year

not

prescribed

prescriptive

because

period

for

Defendants
breach

of

contract claims applies. Alternatively, if the Court finds that
the MMWA claim runs parallel with the LUTPA claim, then the
continuing violation doctrine prevents Plaintiff's MMWA claim
from prescribing here.
LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The

4

complaint must “give the defendant fair notice of what the claim
is and the grounds upon which it rests.” Dura Pharm., Inc. v.
Broudo,

544

U.S.

336,

346

(2005).

The

allegations

“must

be

simple, concise, and direct.” FED. R. CIV. P. 8(d)(1).
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
(2007)). A claim is facially plausible when the plaintiff pleads
facts that allow the court to “draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. A court
must accept all well-pleaded facts as true and must draw all
reasonable inferences in favor of the plaintiff. Lormand v. U.S.
Unwired, Inc., 565 F.3d 228, 232-33 (5th Cir. 2009); Baker v.
Putnal, 75 F.3d 190, 196 (5th Cir. 1996).

The court is not,

however, bound to accept as true legal conclusions couched as
factual allegations. Iqbal, 556 U.S. at 678.
DISCUSSION
Defendants argue that the Court should dismiss Plaintiff's
LUTPA and MMWA claims because they are time-barred. "A Rule
12(b)(6) motion to dismiss for failure to state a claim is an
appropriate method for raising a statute of limitations defense."

5

Mann v. Adams Realty Co., Inc., 556 F.2d 288, 293 (5th Cir.
1977). When the issue of prescription is raised,
[t]he burden of proof generally rests on the party
asserting prescription. However, when a Complaint
reveals on its face that the prescriptive period has
lapsed, the plaintiff bears the burden of establishing
a suspension or interruption of the prescriptive
period.
Frank v. Shell Oil Co., 828 F. Supp. 2d 835, 842 (E.D. La. 2011)
on reconsideration in part, No. 11-871, 2012 WL 1230736 (E.D. La.
Apr. 12, 2012)(internal citations omitted).
The actionable events alleged in Plaintiff's complaint began
between November 2007 and December 2010, thus Plaintiff's claims
are prescribed on their face. Therefore, Plaintiff bears the
burden of establishing that her claims are not time-barred.
A. LUTPA
Louisiana's Unfair Trade Practices and Consumer Protection
Law or LUTPA as it is often called, grants a private right of
action for the recovery of damages to “any person who suffers any
ascertainable loss ... as a result of the use or employment by
another person of an unfair or deceptive method, act, or practice
declared unlawful by R.S. 51:1405.” LA. REV. STAT. ANN. 51:1409.
“It has been established that this legislation is broad and does
not specify particular violations.” Monroe Med. Clinic, Inc. v.

6

Hosp. Corp. of Am., 522 So.2d 1362, 1365 (La. App. 2d Cir. 1988).
Therefore, “what constitutes an unfair trade practice is to be
determined by the courts on a case-by-case basis.” Id. Louisiana
courts have found that in order to recover under LUTPA, the
plaintiff “must prove some element of fraud, misrepresentation,
deception

or

other

unethical

conduct

on

defendant's

part.”

Marshall v. Citicorp Mortg., Inc., 601 So.2d 669, 671 (La. App.
5th Cir. 1992). A claim under LUTPA is subject to a one-year
peremptive period "running from the time of the transaction or
act which gave rise to [the claim]." See LA. REV. STAT. ANN. §
51:1409(E); Tubos de Acero de Mexico, S.A., 292 F.3d at 481 n.4.
Although

Plaintiff's

LUTPA

claim

is

facially

perempted,

Plaintiff argues that the continuing violation doctrine applies
and

prevents

her

claim

from

being

time-barred.

Under

the

continuing violation doctrine, the peremptive period does not
commence to run until the violation abates. See Tubos de Acero de
Mexico,

S.A.,

292

F.3d

at

481.

"A

continuing

violation

is

occasioned by unlawful acts, not the continuation of the ill
effects of the original, wrongful act." Crump v. Sabine River
Auth.,

737

So.

2d

720,

728

(La.

1999).

This

is

to

be

distinguished from a continuing failure to remedy the original,
wrongful act. Indeed, "the breach of the duty to right a wrong

7

and make the plaintiff whole simply cannot be a continuing wrong
which [prevents the peremptive period from commencing], as that
is

the

purpose

of

any

lawsuit

and

the

obligation

of

every

tortfeasor." Id. at 729. The party seeking to avail itself of the
continuing violation doctrine bears the burden of proving its
applicability. See Terrebonne Parish Sch. Bd. v. Mobil Oil Corp.,
310 F.3d 870, 886 (5th Cir. 2002).
The Court finds that Plaintiff has failed to meet her burden
of establishing that the continuing violation doctrine applies
here. In Plaintiff's opposition, she accurately provides the law
of the continuing violation doctrine. (Rec. Doc. 8, pp. 6-7) She
also

accurately

acknowledges

that

she

carries

the

burden

of

showing its applicability. Id. at 7. But, she makes absolutely no
attempt to do so. The opposition is entirely devoid of any such
discussion. Plaintiff's complaint does not shed any additional
light on the matter. If the Court assumes that the peremptive
period commenced to run on October 26, 2011, which is the date on
which Plaintiff filed her state action and, in the Court's view,
the

latest

possible

trigger

for

the

peremptive

period,

Plaintiff's LUTPA claim remains time-barred.5 Thus, the Court
5

Plaintiff argues that the Court may not consider her state court petition
without converting Defendants' motion to dismiss into a motion for summary
judgment because it is a matter outside the pleadings. However, the petition and
judgment are a matter of public record of which the Court may take judicial

8

finds that Plaintiff's LUTPA claim is perempted, and the Court
grants Defendants' motion to dismiss with respect to this claim.
B. MMWA
The Magnuson–Moss Warranty Act creates a statutory cause of
action

for

consumers

who

are

“damaged

by

the

failure

of

a

supplier, warrantor, or service contractor to comply with any
obligation [imposed by the Act] or [established by] a written
warranty, implied warranty, or service contract.” Walton v. Rose
Mobile Homes LLC, 298 F.3d 470, 474 (5th Cir. 2002). The MMWA,
however, does not contain a specific limitations period. Federal
courts therefore look to the analogous state law to ascertain the
applicable

period

of

limitation.

Heisser

v.

Contender

Boats,

Inc., No. 07-9777, 2009 WL 1309741, at *7 (E.D. La. May 7,
2009)(citing Lowe v. Volkswagen of Am., Inc., 879 F. Supp. 28, 30
(E.D. Pa. 1995)). Here, the analogous state law claim is one for
breach of warranty. Ford Motor Credit Co. v. Bower, 589 So. 2d
571, 573 (La. App. 1st Cir. 1991). In Louisiana, such claims are
"brought in redhibition, as opposed to as breach of contract
actions."

Id.

The

one-year

prescriptive

period

provided

by

Louisiana Civil Code article 2534 for claims in redhibition is

notice. See Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994). The Court may
consider matters of public record without converting a 12(b)(6) motion into one
for summary judgment. See Maloney Gaming Mgmt., L.L.C. v. St. Tammany Parish, 456
F. App'x 336, 340-41 (5th Cir. 2011).

9

therefore applicable here.6 Again, because Plaintiff's MMWA claim
is

prescribed

on

its

face,

Plaintiff

bears

the

burden

of

establishing that some interruption or suspension of prescription
applies to prevent her claim from being time-barred.
As

with

her

LUTPA

claim,

Plaintiff

argues

that

the

continuing violation doctrine applies and prevents her claim from
being prescribed. However, the Court has already determined that
Plaintiff failed to show the applicability of the doctrine here.
The Court therefore finds that Plaintiff has failed to meet her
burden of showing that prescription was suspended or interrupted
such that her claim is not now time-barred.
Accordingly,
IT IS HEREBY ORDERED that Defendants' Motion to Dismiss
(Rec. Doc. 3) is GRANTED.
New Orleans, Louisiana, this 8th day of December, 2014.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

6

For the purposes of this motion, the Court assumes without deciding that
Defendants were in bad faith. See LA. CIV. CODE ANN. art. 2534(A)(1),(B).

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