United States District Court, W.D. Louisiana, Lafayette Division
JOSEPH CLYDE POTIER, ET AL.
JBS LIBERTY SECURITIES, INC., ET AL.
MAURICE HICKS, JR., CHIEF JUDGE.
the Court is a Motion to Reconsider (Record Document 119)
filed by Plaintiffs Joseph Clyde Potier and Glenda Potier
(collectively “the Potiers”). Pursuant to Federal
Rule of Civil Procedure 54(b), the Potiers seek
reconsideration of a May 7, 2015 Memorandum Ruling and Order
issued by the Honorable Rebecca F. Doherty,  wherein the Court
dismissed the Potiers' claim of vicarious liability
brought against Defendant JBS Liberty Securities, Inc. d/b/a
JBS Investment Group, LLC (“JBS”) for the actions
of its employee, Roger Dale Lanclos (“Lanclos”).
See Record Documents 101 and 103. The Motion to
Reconsider is unopposed. See Record Documents 120,
128, and 130. For the reasons set forth below, the Motion to
Reconsider is GRANTED.
AND PROCEDURAL BACKGROUND
April 16, 2013, the Potiers brought suit against Lanclos,
their brokerage agent, and his employer JBS, alleging Lanclos
“had been pillaging their retirement accounts to
generate excessive commissions. . . .” Record Document
119-1 at 1. According to the Potiers, Lanclos was employed as
a broker and agent for JBS from November 2006 through
December 2010. Record Document 94-1 at ¶ 2. During that
time, Lanclos invested the Potiers' money and managed
their financial accounts by purchasing and selling various
securities and annuities through JBS. Record Document 14 at
¶¶ 14-15. The Potiers allege while managing their
accounts, Lanclos engaged in a continuous process of
purchasing and selling the same or similar annuity funds in
order to generate “large up-front commissions, bonuses,
and fees” for himself and JBS. Id. at ¶
17. The Potiers contend the annuities purchased by Lanclos on
their behalf were not suitable for their financial goals,
risk tolerance or investment objectives. Id. at
¶ 16-17. The Potiers further allege Lanclos made
material misrepresentations to them regarding the quality of
his investments and failed to disclose the financial
consequences of his investment decisions. Id. at
¶ 21. The Potiers assert Lanclos engaged in a pattern of
conduct intended to defraud them in order to benefit himself
and JBS. Id. at ¶¶ 18, 21-22, 24-26. The
Potiers' complaint sets forth various claims under
federal securities law against Lanclos and JBS. The complaint
additionally asserts one state law claim against JBS,
alleging JBS is vicariously liable for its failure to
properly train or supervise Lanclos and its failure to review
the Potiers' statements for evidence of suitability,
unauthorized trading, and excessive activity. Id. at
¶¶ 31, 61-63. On November 6, 2014, JBS filed a
Motion for Summary Judgment arguing all claims asserted
against it were time barred, and therefore all of the
Potiers' claims asserted against JBS must be dismissed.
Record Document 90. On May 7, 2015, the Court granted the
motion with regard to the Potiers' state law claim, and
denied the motion with regard to the federal law claims.
Record Document 101. As to the state law claim of vicarious
liability, the Court found the claim was perempted pursuant
to La. R.S. § 9:5606 (Actions for professional insurance
agent liability). Id. at 9.
Potiers now seek reconsideration of that portion of the
ruling dismissing their state law claim against JBS for
vicarious liability. The basis for the motion is that
subsequent to issuance of this Court's ruling, the
Louisiana Supreme Court clarified the law in this area by
resolving a circuit split and held that for actions involving
legal malpractice, once fraud is established the peremptive
periods set forth in La. R.S. 9:5605 do not apply and instead
courts must look to the ordinary one-year prescriptive period
set forth in La. Civ. Code art. 3492. See Lomont v.
Bennet, 2014-2483 (La. 6/30/15), 172 So.3d 620, 637.
Although Lomont addressed the fraud exception set
forth in La. R.S. 9:5605 (Actions for legal malpractice), the
Potiers contend the same reasoning should apply to their
claim brought under La. R.S. 9:5606 (Actions for professional
insurance agent liability), arguing because the two statutes
are virtually identical the same interpretation should govern
La. R.S. 9:5606. Record Document 119-1 at 2-3.
of interlocutory orders is governed by Fed.R.Civ.P. 54(b).
Austin v. Kroger Texas, L.P., 864 F.3d 326, 336 (5th
Cir. 2017). Rule 54(b) states in pertinent part, “[A]ny
order or other decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of
fewer than all the parties does not end the action as to any
of the claims or parties and may be revised at any time
before the entry of a judgment adjudicating all the claims
and all the parties' rights and liabilities.”
Fed.R.Civ.P. 54(b). “Under Rule 54(b), the trial court
is free to reconsider and reverse its decision for any reason
it deems sufficient, even in the absence of new evidence or
an intervening change in or clarification of the substantive
law.” Austin, 864 F.3d at 336 (internal
quotation marks omitted). “Although the district
court's discretion in this regard is broad, it is
exercised sparingly in order to forestall the perpetual
reexamination of orders and the resulting burdens and
delays.” Castrillo v. American Home Mortg.
Servicing, Inc., 2010 WL 1424398, *3 (E.D.La.) (citing
Calpetco 1981 v. Marshall Exploration, Inc., 989
F.2d 1408, 1414-15 (5th Cir.1993); 18B Charles A. Wright et
al., Federal Practice & Procedure § 4478.1 (2d ed.
2002)). “[A] successor judge has the same discretion to
reconsider an order as would the first judge, but should not
overrule the earlier judge's order or judgment merely
because the later judge might have decided matters
differently.” U.S. v. O'Keefe, 128 F.3d
885, 891 (5th Cir. 1997).
party may move for summary judgment, identifying each claim
or defense-or the part of each claim or defense-on which
summary judgment is sought.” Fed.R.Civ.P. 56(a).
“The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Id. “A genuine issue of material
fact exists when the evidence is such that a reasonable jury
could return a verdict for the non-moving party.”
Quality Infusion Care, Inc. v. Health Care Service
Corp., 628 F.3d 725, 728 (5th Cir. 2010). As summarized
by the Fifth Circuit:
When seeking summary judgment, the movant bears the initial
responsibility of demonstrating the absence of an issue of
material fact with respect to those issues on which the
movant bears the burden of proof at trial. However, where the
nonmovant bears the burden of proof at trial, the movant may
merely point to an absence of evidence, thus shifting to the
non-movant the burden of demonstrating by competent summary
judgment proof that there is an issue of material fact
Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618
(5th Cir.1994) (internal citations omitted).
reviewing evidence in connection with a motion for summary
judgment, “the court must disregard all evidence
favorable to the moving party that the jury is not required
to believe, and should give credence to the evidence favoring
the nonmoving party as well as that evidence supporting the
moving party that is uncontradicted and unimpeached.”
Roberts v. Cardinal Servs., 266 F.3d 368, 373 (5th
Cir.2001); see also Feist v. Louisiana, Dept. of
Justice, Office of the Atty. Gen., 730 F.3d 450, 452
(5th Cir. 2013) (court must view all facts and evidence in
the light most favorable to the non-moving party).
“Credibility determinations are not part of the summary
judgment analysis.” Quorum Health
Resources, L.L.C. v. Maverick County Hosp. Dist.,
308 F.3d 451, 458 (5thCir. 2002). Rule 56 “mandates the
entry of summary judgment . . . against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof.” Patrick v.
Ridge, 394 F.3d 311, 315 (5thCir. 2004)(alterations in
original)(quoting Celotex v. Catrett, 477 U.S. 317,
Potiers now seek reconsideration of that portion of this
Court's prior ruling dismissing their state law claim
against JBS for vicarious liability. Again, the motion is
unopposed. Relying upon the Louisiana Supreme Court's
decision in Lomont, the Potiers argue this Court
should reconsider the prior ruling “and find the
Potiers' state law claims against JBS are not time barred
under La. Rev. Stat. §9:5606.” Record Document
119-1 at 3 (citing Lomont v. Bennett, 2014-2483 (La.
6/30/15), 172 So.3d 620).
Lomont, a client filed a legal malpractice claim
against her former attorney, alleging the attorney had failed
to record a community property settlement giving the client
the family home, and as a result, a third-party creditor was
able to file a lien against the property. Lomont,
172 So.3d at 623-24. It was undisputed the act of malpractice
was the attorney's failure to record the settlement
agreement in the public records prior to February 20, 2009,
i.e., the date the third-party recorded its lien.
Id. at 626. Because suit was filed more than three
years after the act of malpractice, the attorney argued the
claim was perempted pursuant to La. R.S. 9:5605. Id.
time limits to file a legal malpractice action are set forth
in La. R.S. 9:5605, which provides in pertinent part:
A. No action for damages against any attorney at law duly
admitted to practice in this state . . ., whether based upon
tort, or breach of contract, or otherwise, arising out of an
engagement to provide legal services shall be brought unless
filed . . . within one year from the date of the alleged act,
omission, or neglect, or within one year from the date that
the alleged act, omission, or neglect is discovered or should
have been discovered; however, even as to actions filed
within one year from the date of such discovery, in all
events such actions shall be filed at the latest within three
years from the date of the alleged act, omission, or neglect.
B. . . . The one-year and three-year periods of limitation
provided in Subsection A of this Section are peremptive
periods within the meaning of Civil Code Article 3458 and, in
accordance with Civil Code Article ...