McDonald v. Nationwide Building Services Inc et al

Filing 88

MEMORANDUM RULING re 82 MOTION for Partial Summary Judgment filed by Argel Building Services Inc. Signed by Judge Terry A Doughty on 9/18/2019. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
MARGARET MCDONALD

CIVIL ACTION NO. 3:17-CV-00981

VERSUS

JUDGE TERRY A. DOUGHTY

BROOKSHIRE GROCERY CO., ET AL.

MAG. JUDGE KAREN L. HAYES
RULING

Pending here is the Motion for Partial Summary Judgment on Behalf of Argel Building
Services, Inc. (“Argel”) [Doc. No. 82]. Plaintiff Margaret McDonald (“McDonald”) filed an
opposition [Doc. No. 87].
The motion is fully briefed, and the Court is prepared to rule.
I.

FACTS AND PROCEDURAL BACKGROUND
McDonald contends that she suffered injuries on June 20, 2016, when she slipped and fell

on water left after a floor was cleaned and buffed at the Brookshire store in Jonesboro, Louisiana.
On May 26, 2017, she filed a Petition for Damages against Defendants Brookshire Grocery
Company (“Brookshire”), Nationwide Building Services, Inc. (“Nationwide”), and The Travelers
Indemnity Company of Connecticut (“Travelers”) in the Second Judicial District Court for the
Parish of Jackson, State of Louisiana. On August 1, 2017, the lawsuit was removed to this Court.
On March 12, 2018, McDonald filed a First Supplemental and Amended Petition [Doc.
No. 16], adding as an additional Defendant Argel Building Services, Inc., (“Argel”). She alleged
liability on the basis that Brookshire had retained the services of Nationwide, who, in turn, had
retained the services of Argel to clean the floors of the business.
On March 5, 2019, McDonald filed a Second Supplemental and Amended Petition [Doc.

No. 36] adding as an additional Defendant United Specialty Insurance Company (“USIC”), the
alleged insurer of Argel.
On March 7, 2019, Nationwide filed a Motion for Partial Summary Judgment [Doc. No.
38], contending that it had no liability to McDonald because it had not cleaned or buffed the floors
at the Jonesboro Brookshire store, but, rather, had sub-contracted that work to Argel, as an
independent contractor.
On April 5, 2019, the Court granted Nationwide’s Motion for Partial Summary Judgment
[Doc. No. 38], concluding that Nationwide has no liability to McDonald because under Louisiana
law a party is not liable for the torts of its subcontractor unless that party retains the right to control
the manner in which the contractor performs his work, which, in this case, Nationwide did not do.
Thus, the Court concluded that Nationwide was entitled to judgment as a matter of law holding
that it has no liability to McDonald [Doc. Nos. 52, 53].
On April 30, 2019, Brookshire and Travelers filed a motion for partial summary judgment
asking that McDonald’s claims against them be dismissed because: (1) Brookshire did not perform
any floor cleaning services that allegedly caused or contributed to McDonald’s slip and fall; and,
(2) Brookshire contracted all floor cleaning services for the premises in question to Nationwide as
an independent contractor, and, therefore, Brookshire was entitled to summary judgment
dismissing McDonald’s claims against it for the same reason the Court granted summary judgment
in favor of Nationwide [Doc. No. 54].
On June 7, 2019, the Court granted Brookshire and Travelers’ motion for summary
judgment [Doc. Nos. 68, 69]. On July 1, 2019, McDonald filed a Notice of Appeal [Doc. No.
72], which the United States Court of Appeals for the Fifth Circuit dismissed for want of
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jurisdiction, on July 30, 2019 [Doc. No. 78].
On July 3, 2019, USIC, Argel’s insurer, filed a Motion to Dismiss on the basis that
McDonald’s tort claims are time-barred by liberative prescription [Doc. No. 73]. On August 26,
2019, the Magistrate Judge issued a Report and Recommendation in which she recommended the
motion to dismiss be granted [Doc. No. 84]. On September 10, 2019, the Court entered Judgment
adopting the Report and Recommendation [Doc. No. 86].
On August 24, 2019, Argel filed the pending Motion for Partial Summary Judgment [Doc.
No. 82], asserting that McDonald’s claim against it, too, is time-barred.
For the following reasons, Argel’s motion is GRANTED.
II.

LAW AND ANALYSIS
A.

Summary Judgment

Summary judgment Ashall [be] grant[ed] . . . if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.@ FED. R.
CIV. P. 56(a). A fact is Amaterial@ if proof of its existence or nonexistence would affect the
outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute about a material fact is Agenuine@ if the evidence is such that a
reasonable fact finder could render a verdict for the nonmoving party. Id.
If the moving party can meet the initial burden, the burden then shifts to the nonmoving
party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache
Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). The nonmoving party must show more than Asome
metaphysical doubt as to the material facts.@ Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). In evaluating the evidence tendered by the parties, the Court
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must accept the evidence of the nonmovant as credible and draw all justifiable inferences in its
favor. Anderson, 477 U.S. at 255.
B.

Analysis
1.

Prematurity

McDonald first argues that Argel’s motion for partial summary judgment is premature.1
According to McDonald, she timely appealed this Court’s decision granting summary judgment in
favor of Brookshire and Travelers, but her appeal was “remanded due to a defect in the judgment.”
[Doc. No. 87, pp. 6, 10]. She further asserts that the delay for appealing that judgment will not
begin to run until “the issue with the judgment is remedied” by this Court [Id.] She therefore
contends that this Court could be faced with a conflicting result should it choose to grant the
pending motion for partial summary judgment. Her reasoning is that once this Court deals with
the issue of its “defective” judgment, she can proceed with her immediate appeal of that judgment.
Thus, according to McDonald, the potential exists for the Fifth Circuit to reverse this Court’s
summary dismissal of Brookshire and Travelers, and if this event occurs following the granting of
the pending motion for partial summary judgment, there would be the possibility of a confusion
of issues.
McDonald’s interpretation of Federal Rule of Civil Procedure Rule 54(b) and the Fifth
Circuit’s Judgment dismissing her immediate appeal [Doc. No. 78] is incorrect. There is no
“defect” in the Court’s judgment, nor is there an “issue with the judgment” which the Court needs
to remedy.
Federal Rule of Civil Procedure 54(b) provides:

1 McDonald calls her argument an “exception,” but there are no exceptions in federal court. Typically, the relief
sought in an exception would be asserted through a motion to dismiss or a motion for summary judgment.

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When an action presents more than one claim for relief –whether as
a claim, counterclaim, crossclaim, or third-party claim—or when
multiple parties are involved, the court may direct entry of a final
judgment as to one or more, but fewer than all, claims or parties only
if the court expressly determines that there is no just reason for
delay. Otherwise, any order or other decision, however designated,
that adjudicates fewer than all the claims or the rights and liabilities
of fewer than all the parties does not end the action as to any of the
claims or parties and may be revised at any time before the entry of
a judgment adjudicating all the claims and all the parties’ rights and
liabilities.
(emphasis added)
Thus, ordinarily a judgment entered on fewer than all claims or all parties is not
immediately appealable. A party may move for a Rule 54(b) determination.

In this case,

McDonald made no such motion. Even if McDonald had made such a motion, this Court was not
required to grant it. To the contrary, whether to enter a judgment under Rule 54(b) is reserved
for the sound discretion of the district judge. See Curtiss-Wright Corp v. General Elec. Co. 446
U.S. 1, (1980); see generally Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437 (1956).
Because such judgments are contrary to the historic federal policy against piecemeal appeals, Rule
54(b) orders are not granted routinely, or merely with the hope of avoiding a trial, or as an
accommodation to counsel. See Curtiss-Wright, 446 U.S., at p. 10; see also Jones v. W. Plains
Bank & Trust Co., 813 F.3d 700, 703 (8th Cir. 2015). Instead, the district court must carefully
balance the needs of the parties for an immediate appeal against the interest of efficient
management of the litigation. Rule 54(b) determinations are the exceptions, not the rule. See
Elliott v. Archdiocese of New York, 682 F.3d 213, 220 (3d Cir. 2012).
As the Fifth Circuit explained in its Judgment denying McDonald’s immediate appeal
[Doc. No. 78], an order dismissing some of the claims or defendants is final for appellate purposes
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only if the district court has made an express determination that there is no just reason for delay as
well as an express direction for the entry of judgment under Rule 54(b), or certifies the case for
immediate appeal pursuant to 28 U.S.C. § 1292(b).
McDonald’s immediate appeal was dismissed by the Fifth Circuit because she did not seek
and obtain a Rule 54(b) or § 1292(b) determination, and the Court did not sua sponte find that
either such certification was appropriate.
Accordingly, to the extent that McDonald argues that the motion for partial summary
judgment should be denied as premature, her argument has no merit.
B.

Prescription

Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and
federal procedural law. Gasperini v. Ctr. For Humanities, Inc., 518 U.S. 415, 427, (1996); see also
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, (1938). Louisiana law provides that delictual actions
are subject to liberative prescription of one year, and that prescription commences from the day
the injury or damage is sustained. LA. C.C. art 3492. Prescription runs against all persons unless an
exception is established by legislation. LA. C.C. arts. 3467 and 3468. Louisiana recognizes three
exceptions to the running of prescription: suspension, interruption, and renunciation. Bouterie v.
Crane, 616 So.2d 657, 660 (La. 1993).
All of McDonald’s claims are tort claims and subject to a one-year prescriptive period. The
incident giving rise to this action occurred on June 20, 2016; the one-year period expired on June
20, 2017; and the amended petition naming Argel as an additional defendant was filed on March
12, 2018, more than one year from the date of the accident. Thus, McDonald must show an
exception to the prescriptive period.
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McDonald relies on three theories to establish prescription has not run. First, she argues
that the prescriptive period was interrupted because she named the defendants as liable in solido.
Second, she argues that the new claim relates back to the original claim under Federal Rule of
Civil Procedure 15(c)(1)(C). Finally, she argues that the prescriptive period was expanded by
contra non valentem.
1.

Interruption

McDonald asserts that her original filing of the claim against the original defendants
interrupted prescription and excuses her failure to timely file her claim against Argel. This
argument is premised on the notion that because the defendants are liable in solido, filing suit
against one means that prescription was interrupted as to all defendants.
In Louisiana, prescription is interrupted by the filing of suit in a court of competent
jurisdiction. LA. C.C. art. 3462. The interruption of prescription against one solidary obligor is
effective against all solidary obligors. LA. C.C. arts. 1799 and 3503. If the plaintiff’s basis for
claiming interruption of prescription is solidary liability between two or more parties, then the
plaintiff bears the burden of proving that solidarity exists. Kelley v. General Ins. Co. of America,
2014-0180, at p. 6 (La. App. 1st Cir. 12/23/14); 168 So.3d 528, 534 (quoting Younger v.
Marshall Industries, Inc., 618 So.2d 866, 869 (La. 1993)).
The Court must look to the petitions to see whether the plaintiff has carried her burden of
proof. Vincent v. Tusch, 618 So.2d 385 (La. 1993). The test is whether the alleged facts are
enough on their face to establish that the timely sued defendant and the untimely sued defendants
are solidarily liable. Id. (quoting Pearson v. Hartford Accident & Indemnity Co., 281 So.2d 724
(La. 1973)). Solidary liability is not to be presumed and arises either from a clear expression of
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the parties’ intent or from the law. LA. C.C. art. 1796.
Because McDonald’s basis for claiming interruption is solidary liability, she has the
burden of showing that solidarity exists. McDonald has not met that burden. Her petition and her
amended petitions each include a single, cursory reference to the in solido liability of the
defendants but fail to allege with any particularity why this type of liability should apply here.
Louisiana law is clear that solidarity of obligation is not to be presumed, yet McDonald relies
solely on the presumption of solidarity. She offers no facts to support her assertion that Argel
entered into an agreement to be bound in solido with the other defendants.
In addition, because all the timely-sued defendants have been dismissed on summary
judgment motions, there is no solidary obligor to which the claims against the remaining
defendants can relate. See Myers v. Doe, 2:06 CV 1785, 2009 WL 3790171, at *3 (W.D. La.
Nov. 10, 2009) (“this court dismissed the timely sued defendants, so there is no joint and
solidary obligation”).
Accordingly, interruption does not apply here.
2.

Relating Back

McDonald argues that Rule 15(c)(1)(C) applies because she made the errors the rule was
intended to protect against. First, she says that the rule is intended to allow a plaintiff to amend
her complaint when a claim against a defendant is not stated in the original petition but arises out
of the same facts as her other claims. Second, she says the rule protects against an inability to
name the correct defendant, which occurred in the present case because McDonald did not
discover the existence of Argel until October 2017.
The addition of a new defendant commences the lawsuit as to it. Braud v. Transport
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Service Co. of Illinois, 445 F.3d 801, 806 (5th Cir. 2006). Under federal law, adding a new
defendant generally does not relate back to the filing of the original complaint unless Rule
15(c)(1)(C) provides so. Id. This rule provides an exception for the misnomer of a defendant. Id.
at 806 & n. 12 (discussing how Rule 15(c)(1)(C) refers to substituting or changing a defendant
when there has been a misnomer). Also, under Louisiana law, the addition of a new defendant
does not relate back to the original complaint unless a misnomer situation as described in the
federal rule applies. See Ray v. Alexandria Mall, 434 So.2d 1083, 1087 (La. 1983) (noting that
Louisiana law models the federal rule and that relation back does not apply when adding a new
defendant).
Thus, a claim against a “new” party will only relate back when three distinct
requirements are met. First, the new claim must arise out of the same conduct, transaction, or
occurrence as set out in the original pleading. Fed. R. Civ. P. 15(c)(1)(C). Second, the new party
must have received notice of the action such that it would not suffer prejudice in defending
against that claim. Fed. R. Civ. P. 15(c)(1)(C)(i). This notice must be received within the period
provided under Rule 4(m) for serving the summons and complaint. Id. Third, the new party must
have known (or should have known) within the period provided under Rule 4(m) that it would
have been named as a defendant were it not for a mistake. Fed. R. Civ. P. 15(c)(1)(C)(ii). When
there is no mistake of identity alleged, Rule 15(c)(1)(C) is not triggered. Jacobsen v. Osborne,
133 F.3d 315, 320 (5th Cir. 1998) (quoting Barrow v. Wethersfield Police Dep’t, 66 F.3d 466,
469 (2d Cir. 1995)).
McDonald bears the burden of showing Rule 15(c)(1)(C) applies. Neither party disputes
that the amendment to sue Argel arises out of the same June 2016 incident contained in the
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original timely pleading. Yet the other requirements of Rule 15(c)(1)(c) are not satisfied because
this is not a case of mistaken identity. Instead, McDonald attempts to circumvent the prescriptive
period by claiming that Rule 15(c)(1)(C) allows her to add a new defendant when the claim
against the new defendant arises out of the same facts that gave rise to the original pleading. This
argument does not correctly apply Rule 15(c)(1)(C). Rule 15(c)(1)(C) is not a vehicle for
plaintiffs to bring new parties into litigation after a prescriptive period has expired. Instead, it
offers a narrow exception to statutes of limitation by allowing a plaintiff to correct a mistaken
identification. McDonald does not allege that she is attempting to correctly identify Argel as a
defendant after incorrectly naming a different defendant, but rather to add an entirely new
defendant she failed to timely plead. In addition, there is no allegation that the newly-added
defendant knew or should have known within the period provided under Rule 4(m) that it would
have been named as a defendant were it not for a mistake. Finally, the Court notes that, despite
her claim that she learned of Argel’s identity in October 2017, McDonald did not file her
amended pleading naming Argel as a defendant until March 12, 2018.
Accordingly, Rule 15(c)(1)(C) does not apply here.
3.

Contra non valentem

McDonald argues that it was not reasonable for her to know about the existence of Argel
until October 2017, when she learned about its existence via initial disclosures. In fact, she
contends that the only way for her to become aware of Argel’s existence was by commencing
litigation.
Contra non valentem prevents the running of liberative prescription when the cause of
action is neither known nor reasonably knowable by a plaintiff. Cole v. Celotex Corp., 620 So.
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2d 1154, 1156 (La. 1993); Renfroe v. State ex rel. Dept. of Transp. and Development, 809 So.2d
947, 953 (La. 2002). It is a judicially created doctrine, rooted in principles of fairness and equity,
intended to ameliorate the harshness that would result from an inflexible application of
prescription. Terrebonne Parish School Bd v. Mobil Oil Corp., 310 F.3d 870, 885 (5th Cir.
2002). Contra non valentem only applies in exceptional circumstances, typically when the
plaintiff cannot timely bring her claim for reasons outside her control. See LA C.C. Art. 3467,
comment (d). Because this is an exceptional remedy, it is strictly construed. Corsey v. State
Department of Corrections, 375 So.2d 1319 (La. 1979); Harsh v. Calogero, 615 So.2d 420 (La.
App. 4th Cir. 1993). In addition, the doctrine does not exempt the prescriptive period from
running if the plaintiff’s ignorance stems from her own neglect. Renfroe, 809 So.2d at 954
(quoting Corsey, 375 So.2d at 1322). A plaintiff will be deemed to know what she could have
learned through reasonable diligence. Id.
To successfully argue that contra non valentem applies in the present action, McDonald
must show that she acted reasonably. She has failed to do so. There is no reason offered that
explains why a diligent investigation could not have discovered Argel’s potential liability within
the prescriptive period. A reasonable plaintiff would have tried to determine who was
responsible for ensuring there was no excess water on Brookshire’s floor. McDonald has offered
no facts to demonstrate that she acted reasonably and diligently to discover what actors
contributed to her fall, nor has she explained how circumstances outside her control prevented
her from discovering Argel’s potential liability. Instead, McDonald claims she only discovered
Argel’s presence from the opponents’ disclosures and wants the Court to step in and apply an
equitable remedy to excuse her untimely suit. McDonald alleges no facts to show that she made
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reasonable efforts to investigate, or that any defendant prevented her from learning about Argel’s
potential liability such that fairness and justice would require an exception to the prescriptive
period.
Accordingly, contra non valentem does not apply here.
III.

CONCLUSION
For the foregoing reasons, the Motion for Partial Summary Judgment on Behalf of Argel

Building Services, Inc. [Doc. No. 82] is GRANTED. McDonald’s claims against Argel Building
Services, Inc. are DISMISSED WITH PREJUDICE.
MONROE, LOUISIANA, this 18th day of September, 2019.

____________________________________
TERRY A. DOUGHTY
UNITED STATES DISTRICT JUDGE

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