Opinion
Civil Action No. 02-2104 Section: "R" (5)
November 8, 2002
ORDER AND REASONS
Before the Court is the motion of defendant, Parish of Jefferson, to dismiss plaintiff's claims of civil rights violations on the basis of prescription under Federal Rule of Civil Procedure 12(b)(6). Also before the Court is the motion of plaintiff for summary judgment, seeking a default against defendant. For the following reasons, the Court GRANTS defendant's motion to dismiss on all but one claim, and DENIES plaintiff's motion for summary judgment.
In the Fifth Circuit, "it is well settled that wrongs committed by Louisiana state officials in violation of a plaintiff's constitutional rights are subject to the one-year prescriptive period for Louisiana tort actions." Morales v. Louisiana, 1996 U.S. Dist. LEXIS 11587, *6-7 (E.D.La. 1996) (citing cases). The Court must turn to federal law to determine when a plaintiff's cause of action accrued. See Id. (citing Moore v. McDonald, 30 F.3d 616, 620-21 (5th Cir. 1994); Helton v. Clements, 832 F.2d 332, 334 (5th Cir. 1986)). Under federal law, a cause of action accrues "the moment the plaintiff knows or has reason to know of the injury that is the basis of his complaint." Helton, 832 F.2d at 334-35. In his complaint, plaintiff complains of actions taken by defendant against him in March of 1998, in 1999 and in 2000. Plaintiff did not file his complaint until July 9, 2002, well over one year after he became aware of the events of which he complains. Therefore, the Court concludes that plaintiff's claims arising out of defendant's allegedly unlawful actions in 1998, 1999 and 2000 are prescribed. Plaintiff's only allegation that falls within the one-year prescriptive period concerns the defendant's July 23, 2001 action of reviving a lawsuit against plaintiff to enforce building code regulations and its taking a judgment against him in that proceeding. Any claim of that may arise from these 2001 events has not prescribed.
Plaintiff has filed a cross-motion for summary judgment on this remaining claim, seeking a default judgment on the grounds that defendant did not timely file an answer to plaintiff's complaint, but instead filed a motion to dismiss. Plaintiff is not entitled to judgment in his favor. A defendant may file a motion to dismiss and await its disposition before filing an answer. See FED. R. Civ. P. 12(a)(4). Even the filing of a partial motion to dismiss extends the defendant's time to answer the entire complaint. See CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE 2002 Supp. § 1346 at 146 (2d ed. 1990 Supp. 2002)
Accordingly, defendant's motion to dismiss is GRANTED on all of plaintiff's claims except for plaintiff's claim relating to defendant's activation of a lawsuit against him in July 2001. The Court expresses no opinion at this time as to whether this claim actually states a basis for relief. Further, plaintiff's motion for summary judgment is DENIED.
New Orleans, Louisiana, this 8th day of November, 2002.