Summary
rejecting argument under 2324(C) that timely suit filed against other defendant interrupted prescription as to the movant, when other defendant was dismissed without liability having been imposed upon it
Summary of this case from Joseph v. Port of New OrleansOpinion
Civil Action No: 98-2312 Section: "R"(5)
June 6, 2000
ORDER AND REASONS
On April 27, 2000, this Court entered an Order granting as unopposed the motion for summary judgment of defendant, Sim Kar Lighting Fixture Co., Inc. a/k/a Victaulic Co. of America. The Court stated that any motion for reconsideration of its Order had to be filed within 30 days. Thirty days have now passed and the plaintiff, Lewis Harris d/b/a Body Dynamics, has not moved to reconsider the summary judgment motion. Because plaintiff's claims against Sim Kar have prescribed, the Court grants the motion f or summary judgment on the merits and dismisses plaintiff's claims against Sim Kar with prejudice.
I. BACKGROUND
The products liability case arises out of a fire which occurred on June 4, 1997 at Body Dynamics in Harvey, Louisiana. On June 1, 1998, plaintiff filed suit in state court against Advance Transformer Company and two fictitious defendants, "A-Z Company," and "1-99 Insurance Company." ( See Pet. ¶ 1.) Plaintiff alleges that the fire was caused by an overheated light ballast within a fluorescent fixture manufactured, produced and distributed by Advance Transformer. ( See Id. ¶ 3.) plaintiff further alleges that Advance and A-Z Companies were directly involved in the manufacturing, production, distribution and sale of the ballast and fixture and are liable for any and all defects related thereto. ( See Id. ¶ 9.)
On August 5, 1998, Advance Transformer removed the case to this Court on the basis of diversity jurisdiction. On March 9, 1999, Harris filed a First Amended and Supplemental Complaint naming Magnatek, Inc. as Company "A" of A-Z Companies, the manufacturer of the ballast and fixture. Nearly one year later, on February 22, 2000, Harris filed a Second supplemental and Amending Complaint naming Sim Kar as Company B of A-Z Companies, the manufacturer of the light ballast. Sim Kar is the only named defendant remaining in the case as plaintiff has voluntarily dismissed his claims against Advance Transformer and Magnatek. ( See Order to Dismiss Magnatek dated Jan. 4, 2000; Order Voluntary Dismissal of Advance Transformer dated March 26, 1999.)
II. DISCUSSION
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511 (1986)), on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1996). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. The nonmovant may not rest upon allegations and denials. See id. at 324, 106 S.Ct. at 2552.
B. Prescription
Sim Kar argues that summary judgment is appropriate here because plaintiff's claims have prescribed under Louisiana law. Pursuant to Local Civil Rule 56.2E, because plaintiff did not file an opposition to Sim Kar's summary judgment motion, "all material facts set forth [by Sim Kar] will be deemed admitted." The Court therefore deems admitted the Statement of Uncontested Material Facts attached by Sim Kar to its motion for summary judgment. After considering those facts and the applicable law, the Court finds that Sim Kar has established the absence of genuine issues of material fact and is therefore entitled to summary judgment as a matter of law.
Plaintiff's products liability claims are subject to the general one-year prescriptive period applicable to delictual actions under Louisiana law. See LA. Civ. CODE art. 3492; Vanhoose v. Sofamor Danek Group, Inc., 1999 WL 1129693, at *3 (W.D. La. June 17, 1999); Breaux v. Danek Medical, Inc., 1999 WL 64929, at *3 (E.D. La. Feb. 4, 1999). This one-year prescriptive period begins to run from the date that the injury or damage was sustained, or when the person had constructive notice of the tortious act. See LA. CIV. CODE art. 3492; Ducre v. Mine Safety Appliances, Inc., 963 F.2d 757, 760 (5th Cir. 1992) (citations omitted). "When a petition reveals on its face that prescription has run, the plaintiff has the burden of showing why the claim has not prescribed." Wimberly v. Gatch, 635 So.2d 206, 211 (La. 1994). Here, plaintiff's injury or damage was sustained on June 4, 1997, when the fire occurred at Body Dynamics. Plaintiff filed his complaint against the fictitious A-Z Company on June 1, 1998, just days before the prescriptive period was to expire. He did not identify Sim Kar as a defendant until he filed the second amended complaint on February 22, 2000, more than one year after the injury occurred. Accordingly, whether plaintiff's products liability claims have prescribed depends on whether the prescriptive period has been interrupted or suspended, or the second amended complaint relates back to the date of the original complaint.
Under Louisiana law, prescription may be interrupted by the filing of a suit in a competent court. See LA. Civ. CODE art 3463. Further, the interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors. See Id. art. 2324(C). plaintiff might therefore argue that because he sued Advance Transformer within the one-year prescriptive period, prescription is interrupted as to Sim Kar as a joint tortfeasor. However, "[when] no liability is found on the part of a timely sued alleged tortfeasor, prescription will not be interrupted as to another joint tortfeasor, who is not timely sued, since no joint or solidary obligation exists. See Gioustover v. Progressive American Ins. Co., 561 So.2d 961, 964 (La.App. 4th Cir. 1990) (prescription not interrupted as to alleged tortfeasor under article 2324(C) when timely sued defendants found free from fault and dismissed from suit) (citations omitted). plaintiff has voluntarily dismissed Advance Transformer from this suit. Accordingly, because Advance Transformer cannot be liable to plaintiff as a matter of law, it cannot be a joint or solidary obligor with Sim Kar. Article 2324 therefore does not prevent prescription from running against Sim Kar. See Smith v. Xerox Corp., 718 F. Supp. 494, 495-96 (E.D. La. 1989) (exception to prescription under Louisiana law for solidary obligor with defendant against whom plaintiff had timely filed suit did not apply when timely sued defendant had been dismissed from suit); Blanco v. Continental Oil Co., 2000 WL 575935, at *1 (E.D. La. May 11, 2000) (rejecting argument under article 2324(C) "that timely filed suit against the other defendants interrupted prescription against Premier, . . . [when] the other defendants have been dismissed without liability having been imposed upon them); Evans v. Shell Oil Co., 1992 WL 193544, at *3 (E.D. La. 1992) (same, solidary obligors under article 1799)
Plaintiff might also argue that his claims against Sim Kar are timely because the second amending complaint "relates back" to the original filing date under Federal Rule of Civil Procedure 15(c). Rule 15(c) provides that an amendment of a pleading relates back to the date of the original pleading when
(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the / period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
The time period provided by Rule 4(m) for service of the summons and complaint is 120 days. See FED. R. Civ. P. 4(m). Here, although plaintiff's amended claim against Sum Kar arises out of the same transaction as the claims set forth in the original petition, the fire at Body Dynamics, Rule 15(c)(3) does not apply because plaintiff Sim Kar did not receive notice of the claims against it within 120 days after the filing of the complaint on June 4, 1998. Indeed, it is undisputed that Sim Kar did not receive notice of this action until it was served with the complaint and amended complaint on February 29, 2000. ( See Mot. Summ. J., Stmt. Uncontested Material Facts ¶ 6.) Sim Kar is not the parent, subsidiary or alter ego of, nor does it share the same counsel as, any of the named defendants. ( See Id. ¶¶ 5, 6.) See, e.g., Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir. 1998) (inferring notice if "there is an identity of interest between original defendant and defendant sought to be added or substituted"). Likewise, there is no evidence in the record that Sim Kar knew or should have known that, but for an error in identifying the correct defendant, the action would have been brought against it. Accordingly, because the "notice" and "mistake" provisions in Rule 15(c)(3) have not been satisfied, the second amended complaint against Sim Kar does not relate back to the original complaint, and plaintiff's claims against Sim Kar are therefore time-barred.
This conclusion finds direct support in recent Fifth Circuit authority. In Jacobsen, the Fifth Circuit squarely addressed whether relation back should be permitted under the circumstances of this case and held that it should not. 133 F.3d at 320-21. There, the court stated that the purpose of Rule 15(c) is ". . . 'to allow an amendment changing the name of the party to relate back to the original complaint only if the change is the result of error, such as a misnomer or misidentification.'" Id. at 320 (quoting Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 469 (2d Cir. 1995), modified by 74 F.3d 1366 (2d Cir. 1996)). By contrast, relation back should not be allowed in order to prevent prescription from running against a John Doe defendant because "there was no 'mistake' in identifying the correct defendant; rather, the problem was not being able to identify that defendant." Id. at 321. See also Taylor v. City of Winnfield, 191 F.R.D. 511, 514-15 (W.D. La. 2000) (relation back doctrine of Rule 15(c) unavailable to plaintiff who failed to name John Doe defendants within 120 days after filing complaint due to lack of knowledge as to their identity).
The Court also finds that relation back is not appropriate under Rule 15(c)(1) and Louisiana law. The Louisiana Supreme Court has interpreted article 1153 of the Louisiana Code of Civil Procedure, the relation back article, to permit application of the doctrine under the same circumstances as Rule 15(c)(3). See Ray v. Alexandria Mall, 434 So.2d 1083 (La. 1983) (permitting relation back when Rule 15(c)(3) criteria are met and purported substitute defendant is not a wholly new or unrelated defendant, "since [that] would be tantamount to assertion of a new cause of action which would have otherwise prescribed"). Because the Court has already found that plaintiff did not satisfy the criteria for relation back under Rule 15(c)(3), application of the doctrine under Louisiana law is likewise precluded. See Findley v. City of Baton Rouge, 570 So.2d 1168, 1170-71 (La. 1990) (applying federal precedent to determine whether party satisfied article 1153)
III. CONCLUSION
For the foregoing reasons, the Court GRANTS Sim Kar's motion for summary judgment and dismisses plaintiff's claims against it.