United States District Court, E.D. Louisiana
MICHELE I. HAYES
UNITED STATES OF AMERICA
ORDER AND REASONS
M. AFRICK, UNITED STATES DISTRICT JUDGE
the Court is a motion filed by the City of New Orleans
(“the City”) to dismiss the negligence claim
asserted against it by plaintiff Michele Hayes
(“Hayes”) on the basis of prescription. Hayes
opposes the motion. For the following reasons, the
Court will grant the motion and dismiss the claim.
4, 2014, Hayes “was walking along the sidewalk in the
1200 block of Girod Street close to Loyola Avenue adjacent to
the United State[s] Postal Service, Main Post Office in the
City of New Orleans.” According to Hayes, the sidewalk
was “uneven, ” and as a result she tripped and
fell to the ground. Hayes alleges that she suffered injuries
from the fall.
this trip-and-fall incident, Hayes “filed claims for
personal injury” with both the U.S. Postal Service and
the City. In a letter dated December 30, 2014, the
City informed Hayes that it “respectfully den[ied] any
responsibility for [her damages].” The letter stated
that “[t]he Risk Management Unit has completed its
investigation and review of your claim, ” and had
concluded that “the accident was not caused by any
liability on the part of the City.” Specifically, the
City explained in the letter that “[a] search of the
Assessor's property database identified that the owner is
responsible for the property located at [the] 1200 block of
Girod Street” and that “[a] certified letter was
sent out to the owner to notify the owner (‘United
States of America') of the property abutting this
explaining its effort to notify the abutting property's
owner of the issue with the sidewalk, the City referenced the
Charter of the City of New Orleans (“City
Charter”). Hayes alleges that “[t]he [City
Charter] on its face shifts maintenance, repair, and tort
liability from the municipality to the abutting property
owner for sidewalk areas that are not at
intersections.” Hayes further alleges that
“[t]he sidewalk on which [she] fell was not at an
to Hayes, the information provided to her by the City in the
letter led her to believe that the City was not liable for
her injury, but rather “that the only party liable for
the sidewalk adjacent to the property in the 1200 block of
Girod Street where [she] fell was the United States of
America.” Hayes thereafter continued to pursue an
administrative claim against the United States, but did not
further pursue a claim against the City.
the United States denied her administrative claim,
Hayes filed this case against the United States on April 24,
2017. On December 7, 2017, she amended her
complaint to add the City as a defendant.
City now moves to dismiss Hayes' one and only claim
against it-a negligence claim arising under Louisiana law-on
the ground of prescription.
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
district court may dismiss a complaint, or any part of it,
where a plaintiff has not set forth well-pleaded factual
allegations that would entitle him to relief. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007);
Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007). A plaintiff's factual allegations must
“raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. In other
words, a complaint “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570)).
facially plausible claim is one where “the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. If the well-pleaded
factual allegations “do not permit the court to infer
more than the mere possibility of misconduct, ” then
“the complaint has alleged-but it has not
‘show[n]'-‘that the pleader is entitled to
relief.'” Id. at 679 (quoting Fed.R.Civ.P.
8(a)(2)) (alteration in original).
Rule 12(b)(6) motion to dismiss, a court limits its review
“to the complaint, any documents attached to the
complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the
complaint.” Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010);
see also Spivey v. Robertson, 197 F.3d 772, 774 (5th
Cir. 1999). In assessing the complaint, the Court must accept
all well-pleaded factual allegations as true and liberally
construe all such allegations in the light most favorable to
the plaintiff. Spivey, 197 F.3d at 774; Lowrey
v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir.
“the complaint on its face show[s] a bar to relief,
” then dismissal is the appropriate course. Cutrer
v. McMillan, 308 Fed. App'x. 819, 820 (5th Cir.
2009) (internal quotation marks omitted). For example,
“[a] statute of limitations may support dismissal under
Rule 12(b)(6) where it is evident from the plaintiff's
pleadings that the action is barred and the pleadings fail to
raise some basis for tolling or the like.” Jones v.
Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003); see
Anderson v. City of New Orleans, No. 03-3010, 2004 WL
1396325, at *3 (E.D. La. June 18, 2004) (Duval, J.) (“A
complaint is subject to dismissal for failure to state a
claim upon which relief can be granted if the prescriptive
period has run.”).
federal court exercises either diversity or supplemental
jurisdiction to adjudicate state law claims, state
substantive law and federal procedural law apply to those
claims. See Erie R.R. Co. v. Tompkins, 304 U.S. 64,
78 (1938). A state's substantive law includes
prescriptive statutes and their exceptions. See Beavers
v. Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir.
2009) (citing Guaranty Trust Co. v. York, 326 U.S.
99, 111-12 (1945)).
negligence claim against the City arises under Louisiana law.
Thus, Louisiana substantive law controls the claim.
City contends that Hayes' negligence claim against it is
prescribed.Hayes concedes that she filed this claim
outside the applicable prescriptive period.
Louisiana law, “a negligence claim is delictual and
prescribes [ ] one year” from the date of the injury.
Copeland v. Wasserstein, Perella & Co., 278 F.3d
472, 478 (5th Cir. 2002); see also La. Civ. C. art.
3492. Courts strictly construe prescription statutes in favor
of maintaining claims. Terrebonne Par. Sch. Bd. v.
Columbia Gulf Transmission Co., 290 F.3d 303, 320 (5th
Cir. 2002). To ...