Opinion
CIVIL ACTION, NO. 01-2893, SECTION "L"
January 10, 2002
ORDER REASONS
Before the Court is Defendant's Motion to Dismiss Third Party Complaint of John R. Lee. For reasons set forth below, the motion is GRANTED. Accordingly, the party complaint by John Lee against Dan Spence is DISMISSED as premature.
BACKGROUND
JRL Enterprises ("JRL") originally filed suit against Associates ("Procorp") seeking declaratory judgment in Civil District Court for the Parish of Orleans. Procorp removed the case to this Court and counterclaim against JRL and its Chief Executive Officer, John R. Lee for breach of contract. John Lee then filed a third party libel claim against Procorp's President, Dan Spencer, for defamatory remarks the counterclaim against John Lee. Dan Spence was not a party to the litigation until named is a third party defendant by Lee in the defamation claim.
ANALYSIS
Because this is a diversity case, the federal court must apply Louisiana libel law. Fluor Ocean Services, Inc. v. Hampton, 502 F.2d 1169 (5th Cir. 1974). The court does, however, take note of rulings by the federal courts on this point of Louisiana law. In Fluor, the Fifth Circuit interpreting Louisiana law stated that "any cause of action which might arise from defamatory statements made in a judicial action does not arise until after the termination of that proceeding." Id. at 1170. Much earlier in United States v. New Orleans Chapter, etc., 127 F.2d 649 (5th Cir. 1942), the Fifth Circuit recognized that "[i]t is the law of Louisiana that an action for damages for libel based on defamatory pleadings may not be maintained until termination of the judicial pleadings." Id. at 651. See also Williams v. Hartford Fire Ins. Co., 515 F. Supp. 1208 (M.D. La. 1981) (adopting and discussing extensively the leading Louisiana case on this issue, Marionneaux v. King, 331 So.2d 180 (La.App. 1st Cir. 1976), which held that a cause of action based on libel and slander for statements made in legal proceedings not yet final will not be maintained whether it be asserted by reconventional demand or by separate action. (internal citations omitted)). |
The Plaintiff, John Lee, expresses concern that his action against Dan Spence will expire if he is not allowed to proceed with the claim at this time. However, this is not the case, because the cause of action does not come into existence, and, therefore, prescription does not begin to run on the libel claim, until the termination of the underlying proceedings. See Grant v. Politz, 575 So.2d 915 (La.App. 2nd Cir. 1991).
CONCLUSION
For the foregoing reasons the Motion to Dismiss the Third Party Complaint is GRANTED. Accordingly, the defamation claim made by John Lee against Dan Spence is DISMISSED as premature.