Opinion
No. 22-30407
08-28-2023
John LOUSTEAU, Plaintiff—Appellant, v. HOLY CROSS COLLEGE, INCORPORATED; Congregation of Holy Cross Moreau Province, Incorporated, incorrectly named as Congregation of Holy Cross Southern Province, Incorporated, Defendants—Appellees.
Frank E. Lamothe, III, Julien Guy Lamothe, Kristi Schubert, Lamothe Law Firm, L.L.C., New Orleans, LA, Kevin Hastings, PCVA Law, Tacoma, WA, Michael Thomas Pfau, Pfau Cochran Vertetis Amala, P.L.L.C., Seattle, WA, for Plaintiff—Appellant. William P. Gibbens, Esq., Ian Lewis Atkinson, Esq., Attorney, Schonekas, Benjamin O. Flaxenburg, Esq., Evans, McGoey & McEachin, L.L.C., New Orleans, LA, for Defendants—Appellees. Brittany R. Wolf, Gerald Edward Meunier, Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C., New Orleans, LA, for Amicus Curiae Child USA. Chimene St. Amant, Assistant Attorney General, Louisiana Department of Justice, Baton Rouge, LA, David Jeddie Smith, Jr., Baton Rouge, LA, for Amicus Curiae Jeff Landry. Mark Alan Mintz, Samantha Oppenheim, Robert Patrick Vance, Esq., Jones Walker, L.L.P., New Orleans, LA, for Amicus Curiae Roman Catholic Church of the Archdiocese of New Orleans. Richard C. Stanley, Esq., Eva Joelle Dossier, Matthew James Paul, Stanley, Reuter, Thornton & Alford, L.L.C., New Orleans, LA, for Amici Curiae Jesuit High School of New Orleans, and United States Central & Southern Province, Society of Jesus. Richard Arthur Bordelon, Todd Ryan Gennardo, I, Ian Gunn, Denechaud & Denechaud, L.L.C., New Orleans, LA, for Amicus Curiae Louisiana Conference of Catholic Bishops. Charles Michael Pisano, Roedel Parsons Blache Fontana Piontek & Pisano, A.L.C., New Orleans, LA, for Amici Curiae American Tort Reform Association, American Property Casualty Insurance Association, and Louisiana Association of Self-Insured Employers.
Appeal from the United States District Court for the Eastern District of Louisiana, USDC No. 2:21-CV-1457, Jay C. Zainey, U.S. District Judge Frank E. Lamothe, III, Julien Guy Lamothe, Kristi Schubert, Lamothe Law Firm, L.L.C., New Orleans, LA, Kevin Hastings, PCVA Law, Tacoma, WA, Michael Thomas Pfau, Pfau Cochran Vertetis Amala, P.L.L.C., Seattle, WA, for Plaintiff—Appellant. William P. Gibbens, Esq., Ian Lewis Atkinson, Esq., Attorney, Schonekas, Benjamin O. Flaxenburg, Esq., Evans, McGoey & McEachin, L.L.C., New Orleans, LA, for Defendants—Appellees. Brittany R. Wolf, Gerald Edward Meunier, Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C., New Orleans, LA, for Amicus Curiae Child USA. Chimene St. Amant, Assistant Attorney General, Louisiana Department of Justice, Baton Rouge, LA, David Jeddie Smith, Jr., Baton Rouge, LA, for Amicus Curiae Jeff Landry. Mark Alan Mintz, Samantha Oppenheim, Robert Patrick Vance, Esq., Jones Walker, L.L.P., New Orleans, LA, for Amicus Curiae Roman Catholic Church of the Archdiocese of New Orleans. Richard C. Stanley, Esq., Eva Joelle Dossier, Matthew James Paul, Stanley, Reuter, Thornton & Alford, L.L.C., New Orleans, LA, for Amici Curiae Jesuit High School of New Orleans, and United States Central & Southern Province, Society of Jesus. Richard Arthur Bordelon, Todd Ryan Gennardo, I, Ian Gunn, Denechaud & Denechaud, L.L.C., New Orleans, LA, for Amicus Curiae Louisiana Conference of Catholic Bishops. Charles Michael Pisano, Roedel Parsons Blache Fontana Piontek & Pisano, A.L.C., New Orleans, LA, for Amici Curiae American Tort Reform Association, American Property Casualty Insurance Association, and Louisiana Association of Self-Insured Employers. Before King, Smith, and Elrod, Circuit Judges. Per Curiam:
John Lousteau appeals the dismissal of his complaint in the district court. In light of an opinion rendered by the Louisiana Supreme Court in the intervening period, see T.S v. Congregation of Holy Cross S. Province, Inc., 366 So.3d 64 (La. June 27, 2023), we VACATE the district court's decision and REMAND.
On August 1, 2021, Plaintiff-Appellant John Lousteau brought an action against Defendants-Appellees Holy Cross College, Inc. and Congregation of Holy Cross Moreau Province, Inc. (collectively, "Holy Cross") in the United States District Court for the Eastern District of Louisiana. Lousteau alleges that he suffered from sexual abuse carried out by Brother Stanley Repucci on two separate occasions while attending summer camp at Holy Cross as a 10-or 11-year-old boy in either 1968 or 1969. Brother Repucci was a teacher at Holy Cross College, Inc. and monitored a large dormitory there; he died years before the instant action was filed. Lousteau asserts that Holy Cross is liable for Brother Repucci's conduct under the doctrine of respondeat superior.
Lousteau incorrectly referred to Congregation of Holy Cross Moreau Province, Inc. as Congregation of Holy Cross Southern Province, Inc. when filing his complaint.
At the time of the alleged abuse, such an offense was subject to a one-year liberative prescriptive period. T.S, 366 So.3d at 69 n.7. In 1993, Louisiana's Legislature extended the prescriptive period for offenses involving the abuse of a minor to ten years following the time at which the minor attained the age of majority. LA. STAT. ANN. § 9:2800.9(A) (1993). But that legislation was silent as to claims that would have already been prescribed at the time of its enactment. In 2021, the Legislature passed Act 322, which altogether eliminates the prescriptive period for offenses involving the abuse of a minor. 2021 La. Acts 322 § 1 (amending La. Stat. Ann. § 9:2800.9(A)). Act 322 also permits "any party whose action under [§] 9:2800.9 was barred by liberative prescription prior to the effective date" of Act 322 "to file an action under [§] 9:2800.9 against a party whose alleged actions are the subject of [§] 9:2800.9" for three years following Act 322's enactment (the "Revival Provision"). Id. § 2. Lousteau invokes the Revival Provision as his basis to bring a suit that would otherwise ostensibly be prescribed. Holy Cross subsequently moved for judgment on the pleadings.
On June 8, 2022, the district court granted Holy Cross's motion and dismissed Lousteau's complaint. After determining that the Revival Provision applied to Lousteau's claims, the court turned to the provision's constitutionality and examined whether the Revival Provision violated the Louisiana Constitution's Due Process Clause. See LA. CONST. Ann. art. I, § 2. Following its analysis of the relevant Louisiana caselaw and recognizing that this issue had yet to be addressed by Louisiana's Supreme Court, the court made an Erie guess and concluded that the Revival Provision was violative of the Louisiana Constitution's Due Process Clause. Lousteau now appeals the district court's decision and requests that we certify this issue to the Louisiana Supreme Court.
Alternatively, Lousteau asks that the district court's decision be vacated.
While this appeal was pending, the Louisiana Supreme Court issued its decision in T.S v. Congregation of Holy Cross Southern Province, Inc., 366 So.3d 64, a case with facts nearly identical to our own. In T.S, the namesake plaintiff alleged that he was abused by Brother Repucci while attending Holy Cross in the 1960s and similarly relied on the Revival Provision to avoid a prescription defense. Id. at 66-67. The trial court, however, dismissed the suit, holding that the Revival Provision was unconstitutional. Id. at 66-67. On direct appeal, the Louisiana Supreme Court vacated the trial court's decision, avoiding the constitutional question entirely. Id. at 67-68, 72. Specifically, the Court held that, in enacting the Revival Provision, Louisiana's Legislature "did not clearly express an intent to revive prescribed sexual abuse claims that occurred prior to 1993." Id. at 68. The Court reasoned that the Revival Provision only revives actions that are prescribed under § 9:2800.9; actions prescribed by predecessor statutes, such as the one brought by T.S., remain unaffected. Id. at 68-69 & n.7. Accordingly, the Court ruled that "T.S.'s action had long since prescribed" because it remained subject to a one-year liberative prescriptive period. Id. at 69.
While Holy Cross College, Inc. is a defendant in both suits, Holy Cross Southern Province, Inc. is the other defendant named in T.S as opposed to Holy Cross Moreau Province, Inc., the other defendant in our case.
With the benefit of the T.S decision, we are now certain as to how this case should be resolved under Louisiana law. As previously noted, the facts of both cases are nearly identical. Therefore, it is apparent that the district court should not have ruled on the Revival Provision's constitutionality. Instead, it is now clear that the Revival Provision's wording makes it inapplicable to Lousteau's claims. Accordingly, his complaint should be dismissed for that sole reason. On remand, the district court may consider whether Lousteau should be provided with leave to amend his complaint.
VACATED and REMANDED.