Opinion
Civil Action NO. 00-2262
October 11, 2001
ORDER AND REASONS
Before the Court are defendants'. motions for summary judgment. For the following reasons, the Court grants the motions for summary judgment.
I. BACKGROUND
On July 12, 2000, plaintiff, a Louisiana resident, filed this suit in state court to recover damages allegedly resulting from his use of tobacco products. Plaintiff was diagnosed with throat cancer on February 12, 1993 and underwent a laryngectomy. In his complaint, plaintiff named several out-of-state manufacturers of tobacco products and several Louisiana wholesale distributors of tobacco products as defendants. Defendants removed the suit to this Court on August 1, 2000, on the basis of diversity jurisdiction. Plaintiff moved for remand, asserting that his redhibition claims against the Louisiana distributors destroyed diversity jurisdiction. On May 3, 2001, the Court denied plaintiff's motion to remand, ruling that all of plaintiff's claims against the in-state defendants were prescribed. Based on the Court's ruling, defendants Philip Morris Incorporated, Brown Williamson Tobacco Corporation, Quaglino Candy and Tobacco Co., Inc., Imperial Trading Company, J R Vending, and George W. Groetsch, Inc., now bring this motion for summary judgment based on prescription.
Louisiana Civil Code Article 2520 provides:
The seller warrants the buyer against redhibitory defects, or vices, in the thing sold. A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale. A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.
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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 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)). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one on 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 the pleadings, but must identify specific facts that establish a genuine issue exists for trial. See Id. at 325, 106 S.Ct. at 2553-54; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
B. Prescription
In a diversity action, the prescriptive period of the forum state applies. See Orleans Parish School Board v. Asbestos Corp. Ltd., 114 F.3d 66, 68 (5th Cir. 1997). In addressing prescription in plaintiff's motion to remand, the Court focused on plaintiff's redhibition claim against the in-state defendants. See Lanzas v. The American Tobacco Company, Inc., 2001 WL 474281, *2 — *3 (E.D. La. May 3, 2001) (finding redhibition claim had prescribed). The Court adopts the same analysis here because plaintiff has not introduced any new controlling legal arguments. Redhibition is the avoidance of a sale on account of some defect in the product that would render the item useless or so inconvenient to use that it would be presumed that a buyer would not have bought the thing had he known of the defect. LA. CIV. CODE art. 2520; Grenier v. Medical Engineering Corp., et al., 243 F.3d 200, 206 (5th Cir. March 8, 2001). In 1995, the Louisiana legislature changed the prescriptive period on redhibitory claims from one year to ten years. See Id. ( citing LA. Civ. CODE Art. 3499; LA. CIV. CODE Ann. art. 2534, Revision Comment (b)). In Grenier, the Fifth Circuit found that the 1995 change in the prescriptive period for redhibition did not apply retroactively. See id. Plaintiff and defendants agree that plaintiff did not purchase tobacco products after February of 1993, well before the change in the prescriptive period. The Court will therefore apply the one-year prescriptive period to plaintiff's redhibition claims, and the period begins to run from the discovery of the vice in the product. See Palmisano v. American Medical Engineering, 1999 WL 1138526, *1 (E.D. La. 1999) (applying former version of LA. Civ. CODE art. 2546).
In order to determine whether plaintiff's redhibition claims have prescribed, the Court must determine when the claims accrued. Defendants assert that plaintiff's claims accrued on February 12, 1993, the date plaintiff was diagnosed with cancer. Plaintiff relies on the doctrines of contra non valentum and class action tolling to establish the timeliness of his claims.
Under Louisiana law, contra non valentum prevents the running of liberative prescription in four situations: (1) when a legal cause prevented the courts from taking cognizance of the claim; (2) when some condition prevented the plaintiff from suing; (3) when a debtor does something to prevent a creditor from suing; or (4) when the cause of action is not known or reasonably knowable by the plaintiff. See Richardson v. Penzoil Prod. Co., 896 F.2d 919, 922 (5th Cir. 1990) ( citing Matthews v. Sun Exploration Production Co., 521 So.2d 1192 (La.Ct.App. 1988)). "As a judicial exception to the statutory rule of prescription, Louisiana courts strictly construe this doctrine and only extend its benefits up to `the time that the plaintiff has actual or constructive knowledge of the tortious act.'" Eldredge v. Martin Marietta Corp., 207 F.3d 737, 743 (5th Cir. March 22, 2000) ( quoting Bergeron v. Pan American Assurance Co., 731 So.2d 1037, 1042 (La.Ct.App. 1999)).
In his complaint, plaintiff alleges that he did not know of, and could not have reasonably discovered, defendants' alleged wrongdoing until the filing of the class action, Castano v. The American Tobacco Co., et al., 94-1044 (E.D.La. 1994), on March 29, 1994. ( See Compl. at ¶ 30.) Plaintiff also contends that the prescriptive period was tolled by the filing in 1996 of the class action, Scott v. The American Tobacco Co., et al., 96-8461 (Civ. Dist. Ct. Orleans Par. 1996), in which he was a class member until he opted out on June 12, 2000. (See Compl. at ¶ 30). Taking plaintiff at his word, plaintiff discovered defendants' tortious conduct when the Castano class action was filed in March of 1994. The prescriptive period on his claim was tolled by the filing of the Castano class action. See Smith, et al. v. Texaco, Inc., et al., 88 F. Supp.2d 663, 670 (E.D. Tex. March 7, 2000) ( citing Crown Cork Seal Co. v. Parker, 462 U.S. 345, 353-54, 103 S.Ct. 2392, 2397-98 (1983); American Pipe Constr. Co. v. Utah, 414 U.S. 538, 552-53, 94 S.Ct. 756, 766 (1974)). The Fifth Circuit decertified the Castano class on May 23, 1996. See Castano, et al. v. The American Tobacco Co., et al., 84 F.3d 734 (5th Cir. 1996). Therefore, the prescriptive period began to run on that date. See Smith, 88 F. Supp.2d at 670. Plaintiff alleges that prescription was interrupted again by the Scott class action in 1996 until he opted out in June of 2000. The Court disagrees.
It is true that if class certification is denied, the period between the beginning of the proposed class action and the denial is tolled for all putative class members and any subsequent individual lawsuits they may bring. See Smith, 88 F. Supp.2d at 670 ( citing Crown Cork Seal Co. v. Parker, 462 U.S. 345, 353-54, 103 S.Ct. 2392, 2397-98 (1983); American Pipe Constr. Co. v. Utah, 414 U.S. 538, 552-53, 94 S.Ct. 756, 766 (1974)). But courts apply a "no piggyback rule", which prevents tolling by a later class action. See Salazar-Calderon v. Presidio Valley Farmers Ass'n, 765 F.2d 1334, 1351 (5th Cir. 1985); see also, Basch v. Ground Round, Inc., 139 F.3d 6, 10-11 (1st Cir. 1998); Griffin v. Singletary, 17 F.3d 356, 359-60 (11th Cir. 1994); Andrews v. Orr, 851 F.2d 146, 149-50 (6th Cir. 1988); Korwek v. Hunt, 827 F.2d 874, 879 (2d Cir. 1987); Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir. 1987). Courts have noted that "the tolling rule (in class actions) is a generous one, inviting abuse;" therefore, courts apply the "no piggyback" rule to prevent putative class members from tolling the statute of limitations indefinitely. See Salazar-Calderon, 765 F.2d at 1351 ( citing Crown Cork Seal Co., 462 U.S. at 354, 103 S.Ct. at 2398; American Pipe Constr. Co. v. Utah, 414 U.S. at 561, 94 S. Ct. at 770 (Blackmun, J., concurring)). Therefore, the Court finds that only the Castano case tolled the prescriptive period on plaintiff's claims. Plaintiff had one year from decertification in Castano, or until May 23, 1997, to file his lawsuit. Plaintiff filed this lawsuit on July 11, 2000. His redhibition claims therefore are prescribed.
Besides redhibition, plaintiff's complaint alleges claims under the Louisiana Products Liability Act, breach of implied and express warranty, fraud, negligent misrepresentation, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. Plaintiff's complaint against defendants lists twenty-nine paragraphs of factual allegations. The same alleged "wrongdoing" is the basis for each of his alleged causes of action. Plaintiff states that it was not until Castano that he knew of or reasonably could have discovered this "wrongdoing." Accordingly, since the same "wrongdoing" is the basis for all of his claims, the Court finds that plaintiff's other claims are also barred by the prescription of one-year. Plaintiff's claims for express and implied warranty are governed by Louisiana's redhibition statute and the one-year prescriptive period applicable to redhibition claims. See In re Ford Motor Co. Vehicle Paint Litigation, 1996 WL 426548 (E.D. La. 1996) ( citing Manning v. Scott-Hixson-Hopkins, Inc., 605 So.2d 233, 235 (La.App. 2 Cir. 1992). Further, delictual actions are likewise covered by a one-year prescriptive period. See Hunter v. Tensas Nursing Home, et al., 743 So.2d 839, 842 (La.App. 2 Cir. 10/27/99); LA. CIV. CODE art. 3492. Therefore, plaintiff's. tort claims for products liability, fraud, negligent misrepresentation, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress are all prescribed.
Because there are adequate grounds to grant this motion based on plaintiff's admission that he knew of defendants' wrongdoing when the Castano class action was filed, the Court need not reach defendants' argument that plaintiff knew or should have known of his cause of action even sooner.
III. CONCLUSION
For the foregoing reasons, the Court finds that all of plaintiff's claims have prescribed. The Court hereby GRANTS defendants' motion for summary judgment.