Joseph v. King
Filing
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ORDER AND REASONS: The 39 and 41 Motions to Dismiss are DENIED, as set forth in document. Signed by Judge Jay C. Zainey on 4/18/2024. (jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ELAINE JOSEPH
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VERSUS
KEVIN C. KING ET AL.
CIVIL ACTION NO. 22-1225
SECTION: “A”(3)
JUDGE JAY C. ZAINEY
MAGISTRATE JUDGE EVA J. DOSSIER
ORDER AND REASONS
The following motions are before the Court: Motion to Dismiss for Failure to State a
Claim (Rec. Doc. 39), filed by Defendant, Foremost Insurance Company, and Motion to
Dismiss for Failure to State a Claim (Rec. Doc. 41), filed by Defendant, Kevin C. King. Both
motions, which are identical, are opposed. The motions, submitted for consideration on March
27, 2024, are before the Court on the briefs without oral argument. For the reasons that follow,
both motions to dismiss are DENIED.
I.
Background
Plaintiff Elaine Joseph brought this Qui Tam action against Kevin C. King and Foremost
Insurance Company, among others, alleging causes of action under the False Claims Act and
various state laws.1 For several years, Joseph leased property at 5298 Tullis Drive in New
Orleans from Kevin C. King and Sheila King.2 (Complaint, Rec. Doc. 2, ¶ 2). She participated in
the Housing Choice Voucher Program, known as Section 8, administered by the Housing
Authority of New Orleans. (Id. ¶¶ 3-5). Under Section 8, tenants may rent from private landlords
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The United States elected not to intervene.
Defendants Kevin Logan King and Kevin C. King, although named separately in the Complaint, are the same
individual. (Rec. Doc. 50, at 2 n.2). Sheila King did not join in these motions to dismiss. Any reference to “King” in
this Order refers exclusively to Kevin King.
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of their choosing. The local housing authority, which falls under the U.S. Department of Housing
and Urban Development, pays a portion of the rent as calculated by the Section 8 program; the
tenant pays the remainder. 42 U.S.C. § 1437f. Throughout her tenancy, Joseph was eligible for
and participated in the Section 8 program. (Complaint, ¶ 36).
During Joseph’s tenancy, the property’s bathroom began leaking, which fostered mold
growth and ultimately caused the ceiling to cave in. (Id. ¶¶ 93-94). Although she reported the
leak, the defendants did not contact a licensed plumber or otherwise address the problem. (Id. ¶¶
96-97). Without a receipt evidencing that a plumber reviewed the leak, the Sewerage and Water
Board refused to lower Joseph’s water bills. (Id. ¶ 99). Joseph claims that King’s failure to
respond to the leak constituted a breach of several implied statutory warranties that were made
effective by the lease agreement. She alleges that because of the leak, she slipped and fell, was
charged excessive water bills, and lost use of a portion of her home. (Id. ¶¶ 95-98).
Consequently, she requests damages for her personal injuries and her out-of-pocket utility costs,
which she alleges rendered her cost-burdened and caused stress and mental anguish. (Id. ¶¶ 100,
138).
The False Claims Act allegations are not at issue in these partial motions to dismiss.
Rather, the motions focus exclusively on Count 4, which brings causes of action for breaches of
the warranties of habitability, against vices and defects, and of peaceful possession under the
Louisiana Civil Code articles 2682, 2691, 2696, 2699, and 2700. (Id. ¶¶ 130-39). Both King and
Foremost argue that Count 4 is a delictual action disguised as a contractual action, and is
therefore subject to a one-year prescriptive period.3 Because the alleged injuries occurred over
one year ago, they have moved to dismiss with prejudice. In response, Joseph contends that
La. Civ. Code. art. 3492 governs delictual actions, stating that they “are subject to a liberative prescription of one
year.”
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Count 4 is rooted in contract and is subject to a ten-year prescriptive period, and therefore is not
time-barred.4 Because these actions could possibly be considered as contract claims at this
juncture, the defendants’ motions to dismiss are DENIED.
II.
Legal Standard
The central issue in a Rule 12(b)(6) motion to dismiss is whether, in the light most
favorable to the plaintiff, the complaint states a valid claim for relief. Gentilello v. Rege, 627
F.3d 540, 544 (5th Cir. 2010) (quoting Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008)).
To avoid dismissal, a plaintiff must plead sufficient facts to “state a claim to relief that is
plausible on its face.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “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. The Court does
not accept as true “conclusory allegations, unwarranted factual inferences, or legal conclusions.”
Id. (quoting Plotkin v. IP Axess, Inc., 407 F.3d 690, 696 (5th Cir. 2005)). Legal conclusions must
be supported by factual allegations. Id. (quoting Iqbal, 556 U.S. at 679)).
In the context of a motion to dismiss, the district court must accept all factual allegations
in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. Lormand v.
US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (citing Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308 (2007); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Lovick v.
Ritemoney, Ltd., 378 F.3d 433, 437 (5th Cir. 2004)). However, the foregoing tenet is inapplicable
to legal conclusions. Iqbal, 556 U.S. at 678. Thread-bare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice. Id. (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Any ambiguities in the current controlling substantive law
La. Civ. Code art. 3499 governs personal actions, stating that “[u]nless otherwise provided by legislation, a personal
action is subject to a liberative prescription of ten years.”
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must be resolved in the plaintiff’s favor. Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001)
(citing Burchett v. Cargill, Inc., 48 F.3d 173, 176 (5th Cir. 1995)).
III.
Discussion
King and Foremost argue that the claims in Count 4—which allege violations of implied
contractual duties owed to lessees—are founded in tort law and are thus subject to a one-year
prescriptive period. As a general matter, “prescriptive statutes are to be strictly construed against
prescription and in favor of the claim that is said to be extinguished. Of the two possible
constructions, the one that maintains enforcement of the claim or action, rather than the one that
bars enforcement, should be adopted.” La. Health Serv. & Indem. Co. v. Tarver, 635 So. 2d
1090, 1098 (La. 4/11/1994). It is the defendant’s duty to prove that the prescriptive period is
applicable and that the plaintiff failed to bring a cause of action in a timely manner. Spott v. Otis
Elevator Co., 601 So. 2d 1355, 1361 (La. 1992). Once the defendant has shown that the action is
prescribed on its face, the burden shifts to the plaintiff to show that the action is not prescribed.
Id.
Here, the defendants have not shown that the action is facially prescribed. They have
simply stated that Joseph’s slip-and-fall and mold exposure claims are delictual actions and
therefore subject to a one-year prescription period. This conclusory statement, taken alone, is
insufficient for this Court to grant these motions. However, the pleadings also reveal that Joseph
has a plausible claim under her lease agreement.5 King and Joseph are in privity through the
lease. Joseph’s claims arise under implied statutory warranties made effective by this lease
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Louisiana state courts determine which prescription statute applies by the pleadings. That is, the applicable statute is
determined by whether the cause of action is pleaded as a delictual claim or a contract claim. Because federal pleading
standards apply here, this Court is not bound by this practice, but the Court notes that the plaintiff alleged the cause
of action as a contract claim.
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agreement. It is therefore plausible that the injuries resulted from King’s breach of these
warranties.
In similar contexts, Louisiana courts have permitted actions which could constitute
negligence by the landlord to be brought as either contract or delictual actions. See, e.g.,
McCrory Corp. v. Latter, 331 So. 2d 577, 579 (La. App. 1 Cir. 1976). In McCrory, the court
stated that the defendant landlord had a statutory obligation to “maintain the lessee in the
peaceable possession of the leased premises during the continuance of the lease and to guarantee
him against all of the vices and defects of the thing leased.” Id. The lessor’s failure to keep the
property’s basement waterproof—a requirement under the lease—was a breach of both the
contract and the underlying statutory warranties. Id. Even where particular acts of negligence are
alleged, the claim may still be rooted in contract. See Fed. Ins. Co. v. Ins. Co. of N. Am., 263 So.
2d 871, 872 (La. 1972). “[W]hen a party has been damaged by the conduct of another arising out
of a contractual relationship, the former may have two remedies, a suit in contract or an action in
tort . . . .” Id. Such allegations of negligence may be “necessary to plaintiff’s action in contract
for recovery of some of the damages” sought and therefore do not preclude the application of a
ten-year prescriptive period. Id. Further, other cases have linked personal injury claims to the
ten-year prescriptive period for personal actions where the underlying violation was a breach of
lease warranties. See, e.g., Richardson v. Hubbs, 525 So. 2d 736, 739 (La. App. 1 Cir. 1988)
(finding that a slip-and-fall claim could be maintained as contractual breach of statutory
warranties through a lease agreement); Thompson v. Cane Gardens Apartments, 442 So. 2d
1296, 1299 (La. App. 1 Cir. 1983) (finding that a personal injury claim could be a personal
action styled as a violation of statutory warranties and therefore subject to a ten-year prescriptive
period).
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Joseph has pleaded that she and King were parties to a leasing contract. The Louisiana
Civil Code gives rise to several extracontractual implied warranties in leasing contracts,
including those asserted in the Complaint. It is plausible under a Rule 12(b)(6) inquiry to
interpret these causes of action as arising from contract, thus subjecting them to a ten-year
prescriptive period. Because the injuries occurred within ten years of the filing date, the claims
are not prescribed.
Accordingly;
IT IS ORDERED that the Motion to Dismiss (Rec. Doc. 39) filed by Defendant,
Foremost Insurance Company, and the Motion to Dismiss (Rec. Doc. 41) filed by Defendant,
Kevin C. King, are both DENIED.
April 18, 2024
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JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
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