United States District Court, W.D. Louisiana, Lake Charles Division
R. SUMMERHAYS, JUDGE
the Court is a "Motion to Dismiss for Failure to State a
Claim and Failure to Join a Party under Rule 19 and Motion
for More Definite Statement" (Doc. 5), wherein
Defendants Deborah Lynn Purdy, Werner Enterprises, Inc., and
Ace American Insurance Company move to dismiss
Plaintiffs' Petition for Damages for failure to state a
claim upon which relief can be granted and failure to join a
required party. Defendants first argue that Plaintiffs'
cause of action has prescribed, and therefore it must be
dismissed pursuant to Rule 12(b)(6). Plaintiff have not opposed
the motion, and the time for doing so has now
elapsed. Because the Court finds that the cause of
action is prescribed, the Motion to Dismiss will be granted
and the Petition for Damages will be dismissed.
Marlon Hanchett, Tracy Bellard, Dion Morris and M. H. (Marlon
Hanchett's minor daughter) were involved in an automobile
accident on January 14, 2017. Plaintiffs allege that Defendant
Deborah Purdy, the driver of a vehicle owned by Werner
Enterprises, Inc. and insured by Ace American Insurance
Company, struck Plaintiffs' vehicle causing injuries to
January 15, 2018, Plaintiffs' attorney faxed a Petition
for Damages to the Fourteenth Judicial District Court. The
original Petition for Damages was received and filed by the
Fourteenth Judicial District Court on January 29,
2018. Defendants removed the lawsuit to this
Court on October 5, 2018.
Federal Rule of Civil Procedure 12(b)(6) allows dismissal of
a complaint when it fails to state a claim upon which relief
can be granted. In considering a Rule 12(b) (6) motion, the
court must accept the factual allegations of the complaint as
true and resolve any ambiguities or doubts regarding the
sufficiency of the claim in the plaintiffs
favor. "In order to avoid, dismissal for
failure to state a claim, a plaintiff must plead specific
facts, not mere conclusory allegations. .
.," "Legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion to
dismiss.""[T]he complaint must contain either
direct allegations on every material point necessary to
sustain a recovery ... or contain allegations from which an
inference fairly may be drawn that evidence on these material
points will be introduced at trial."
cases where jurisdiction exists by diversity of citizenship,
28 U.S.C. § 1332, federal courts must apply state
substantive law. In Louisiana, delictual actions such as
negligence are subject to a liberative prescription of one
year. The prescriptive period begins to run
from the day the injury or damage is sustained.
Revised Statute 13:850(A) provides that any document in a
civil action may be filed with the clerk of court by
facsimile transmission and the "facsimile filing shall
have the same force and effect as filing the original
document, if the filing party complies with Subsection B
of this Section" Subsection B requires the
filing party to deliver the original document, including
attachments, exhibits and orders, to the clerk of court
within seven days, exclusive of legal holidays, after the
clerk of court receives the facsimile filing. Subsection C
states that "[i]f the filing party fails to comply with
any of the requirements of Subsection B of this Section, the
facsimile filing shall have no force or effect." The
burden of proof lies with the party asserting prescription.
However, where the petition shows on its face that it has
prescribed, the burden shifts to the plaintiff to prove that
the prescriptive period has been interrupted or
maintain that because Plaintiffs failed to comply with
Subsection B, Plaintiffs' cause of action against
Defendants is prescribed. The Court agrees. The alleged
accident that is the basis for this suit occurred on January
14, 2017. The Petition was filed in state court via facsimile
on January 15, 2018. The original Petition was received by
the clerk of court on January 29, 2018. Thus, the petition
shows on its face that Plaintiffs' cause of action is
prescribed because the petition was not received by the clerk
of court within seven days of the facsimile filing as
required by La. R.S. 13:850(B). As previously noted,
Plaintiffs' counsel has not responded to Defendants'
Motion to Dismiss.
reasons stated above, the Motion to Dismiss for failure to
state a claim will be granted, as the Court ...