Opinion
CIVIL ACTION 02-0159, SECTION "T" (5)
July 18, 2002
Before the Court is a Motion to Dismiss filed on behalf of the Defendants. The matter was taken under submission on a previous date. The Court, having considered the arguments of the parties, the Court record, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND
On September 15, 2000, the plaintiffs filed suit alleging constitutional violations and state law torts committed by the defendants. (Civil Action 00-2730) The plaintiffs' petition identified the date the violations occurred as November 18, 2000, a date which had not yet occurred. The plaintiffs were notified by the defendants of the defect but there was no response. As a result, the defendants filed a Rule 12(b)(6) motion based on prematurity. The motion was not opposed nor was the petition amended. The suit was dismissed without prejudice on May 18, 2001. After the dismissal, the plaintiffs filed an amended petition with which the defendants were never served. The suit was refiled on December 12, 2001 in state court. The case was removed to Federal District Court on January 18, 2002. On February 27, 2002 the defendants filed a Motion to Dismiss.
II. ARGUMENTS OF THE PARTIES
The defendants contend that the Motion to Dismiss should be granted because the plaintiffs' causes of action are prescribed. They argue the claims are prescribed because it has been over a year since the occurrence. The prescriptive period is one year based on the state law prescriptive period for personal injury claims. La. Civil Code Art. 3492. In anticipation of the plaintiff's arguments, the defendants also argue that the prescriptive period was not interrupted since the requirements set forth in Louisiana Civil Code Article 3463 have not been satisfied. It is their contention that the plaintiffs failed to prosecute their case because they neither amended the initial complaint nor opposed the Rule 12(b)(6) Motion. That failure, the defendants argue, means that interruption of prescription in accordance with Civil Code Article 3463 never occurred. Therefore, the claims are prescribed.
The plaintiffs argue that the Motion should be denied since their claims are not prescribed, due to an interruption in the prescriptive period. There was an interruption because their original suit was involuntarily dismissed without prejudice. They contend that they should be given one year from the date of the dismissal, May 18, 2001, to refile suit. Using Louisiana Civil Code Article 3463 as a basis, they believe that since there was an involuntary dismissal, the prescriptive period begins to run anew from the date of the dismissal. They contend that they did not fail to prosecute their case because a simple defect in any suit does not equal "failure to prosecute." The plaintiffs argue that since the trial court dismissed the case without prejudice, the plaintiff had a right to correct the defect and refile.
III. LAW AND ANALYSIS
A motion to dismiss for failure to state a claim upon which relief can be granted under FRCP 12(b)(6) "is viewed with disfavor and is rarely granted." Lowery v. Texas AM University System, 117 F.3d 242, 247 (5th Cir. 1997); Kaiser Aluminum Chem. Sales v. Avondale Shipyards, 677 F.2d 1045, 1050 (5th Cir. 1982). The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the original complaint must be taken as true. Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1980). A district court may not dismiss a complaint under FRCP 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Blackburn v. Marshall, 42 F.3d 925, 931 (5th Cir. 1995). The Fifth Circuit defines this strict standard as "whether in the light most favorable to the plaintiff and with every doubt resolved in his behalf, the complaint states any valid claim for relief." Lowrey, 117 F.3d at 247 (citing 5 Charles A. Wright Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1357, at 601 (1969)).
There is no valid claim for which relief can be granted if the claims are prescribed. Claims under 42 U.S.C. § 1983 are prescribed after one year. Elsy v. Roberson, 868 F.2d 793, 794 (5th Cir. 1989). The prescription period is considered interrupted if, according to Louisiana Civil Code Article 3463, the suit is pending. But interruption will not have occurred if there was abandonment, voluntary dismissal before or after the defendant appears, or there is a failure to prosecute the suit at trial. La. C.C. Art. 3463. If this Court finds that there was a failure to prosecute, then there was no interruption of the prescriptive period.
The law in Louisiana concerning what constitutes "failure to prosecute" is brief. McCallon v. Travelers Ins. Co., 302 So.2d 676 (La.App. 3rd Cir. 1974) is the one case which describes the phrase. In McCallon, the plaintiffs were involved in an automobile accident. McCallon, 302 So.2d at 676. The plaintiffs sued the defendants in a tort action. The defendants filed an answer and a third party demand. The Clerk of Court sent notice to the counsels of the plaintiffs and the defendants of the date for trial. McCallon, 302 So.2d at 677. On the day of trial, neither the plaintiffs nor their counsel appeared, however, the defendants and their counsel did appear. Since the plaintiffs failed to attend the trial, the defendants moved to dismiss which was granted without prejudice. Several days later, the plaintiffs again filed suit for the same causes of action. The defendants filed an exception on the basis of prescription of one year. The trial judge heard the exception and dismissed the suit. That dismissal formed the subject matter of the appeal which came before the Third Circuit. In the appeal, the plaintiffs-appellants argued that the period of prescription was interrupted because of the first suit and the involuntary dismissal and the prescription should have run from the date of the dismissal and that the second suit was timely filed. Meanwhile, the defendants argued that there was no interruption since the plaintiffs did not appear for trial constituting "failure to prosecute." Id. That argument was countered by the plaintiffs, who argued that a "failure to appear" does not rise to a "failure to prosecute". Id. The Third Circuit held that the plaintiffs failure to appear did constitute failure to prosecute since they failed to attend and present their case while having notice of a trial date. McCallon, 302 So.2d at 679. By finding that there was a failure to prosecute, the prescriptive period had not been interrupted and therefore had expired. McCallon v. Travelers Ins. Co., 302 So.2d 676 (La.App. 3rd Cir. 1974).
This Court recognizes that the facts in McCallon are not on point with the present case. However, this Court finds that McCallon does provide guidance in determining what constitutes "failure to prosecute". It appears to this Court that the McCallon court based its decision on two key things: (1) the plaintiff failed to protect its case by not attending the trial and forcing the trial judge to dismiss the suit by granting the motion to dismiss and (2) that there was adequate notice concerning the trial date from the Clerk of Court. Additionally, the plaintiff's counsel in McCallon failed to give the Court any evidence that the failure to appear at trial "was beyond his control." McCallon, 302 So.2d at 679.
The counsel for the plaintiffs is correct in that there was a simple defect in his initial pleading. However, that simple defect turned into a failure to prosecute when he did not respond to the 12(b)(6) motion and when he failed to amend his complaint. Those failures to act forced the trial judge in the initial suit to dismiss the case, therefore the plaintiffs did not protect their case. In the case at hand, the plaintiffs received adequate notice of the need to amend or to respond to the motion. The defendants contacted the plaintiffs' counsel concerning the incorrect date yet they received no response from the plaintiffs' counsel. The counsel for the plaintiffs had notice of the Motion, giving the plaintiffs adequate notice that there was a problem with their complaint. This Court previously found that "[p]laintiffs' counsel had every possible opportunity to prevent the dismissal of all of the defendants in this matter and through his own inaction failed to do so." See Order and Reasons, 10/04/01, Document 18, Civil Action 00-2730.
Both of the key concerns of the court in McCallon have been found in the instant case. Also, like the counsel in McCallon, the counsel for the plaintiffs has not shown this Court that his failures to act were because of circumstances beyond his control. Therefore, the plaintiffs failed to prosecute their case and there was no interruption of the prescriptive period.
III. CONCLUSION
Because any action that the plaintiffs may have against the defendants has prescribed, the plaintiffs have failed to state any valid claim for relief. Therefore, the Court grants the defendants Motion to Dismiss.
Accordingly,
IT IS ORDERED that the Motion to Dismiss (Document #7) filed on behalf of the Defendants be and the same is hereby GRANTED.
IT IS FURTHER ORDERED that the Motion to Remand (Document #4) filed on behalf of the Plaintiffs be and the same is hereby DENIED.