United States District Court, W.D. Louisiana, Lake Charles Division
R. SUMMERHAYS, UNITED STATES DISTRICT JUDGE
the court is a Motion for Summary Judgment [doc. 58] filed by
defendant Lowes Home Centers, LLC ("Lowe's"),
asserting that all claims against it should be dismissed as
prescribed. Plaintiffs Elmo and Sarah Green oppose the motion
and Lowe's has filed a reply memorandum. Docs. 63, 67.
Accordingly, the matter is now ripe for review, I.
action arises from the allegedly defective replacement of
plaintiffs' roof by former defendant Southeast Roofing
& Construction, Inc. ("Southeast"). Plaintiff
Sarah Green entered into a contract with Lowe's for the
roof replacement on March 16, 2015. Doc. 63, att. 5.
Lowe's subcontracted the job to Southeast, and this court
has determined that Southeast completed the work on or before
April 8, 2015. Doc. 38, att. 3 (affidavit and exhibits from
Southeast president); doc. 51, pp. 7-8; report and
recommendation adopted, doc. 52. Plaintiffs claim that
they learned of the alleged defective condition of the new
roof when it began to leak in a hard rain, which the court
has determined occurred on or before April 10, 2015. Doc. 38,
att. 4, p. 3; doc. 38 att. 5, p. 3; see doc, 51, p.
filed suit against Lowe's and Southeast in the Fourteenth
Judicial District Court, Calcasieu Parish, Louisiana, on
April 15, 2016. Doc. 1, att, 1, pp. 5-8. They allege that
both parties are liable for negligently installing the roof,
resulting in flooding to the Greens' home that led to
growth of toxic mold and extensive property damage.
Id. Southeast removed the matter to this court on
the basis of diversity jurisdiction, 28 U.S.C. § 1332.
Doc. 1. It then moved for summary judgment, alleging that
plaintiffs' claims against it had prescribed under
Louisiana's prescriptive period for tort claims. Doc. 38,
att. 1. Plaintiffs opposed the motion, alleging that there
were genuine issues of material fact as to (1) when they
became aware of the damage, starting the clock on any
delictual action, and (2) whether they had a contract with
Southeast, which could place their claims under the ten-year
prescriptive period for breach of contract. Doc. 45. The
court found no merit to either argument and dismissed all
claims against Southeast. Docs. 51, 52.
now moves for summary judgment, asserting that (1) although a
contract between the parties exists, plaintiffs' claims
must be construed as arising strictly in tort and (2)
plaintiffs' claims against it have likewise prescribed
under the one-year prescriptive period. Doc. 58, att. 1.
Plaintiffs oppose the motion, arguing that their claims must
be construed as arising from the contract and are therefore
subject to a ten-year prescriptive period.
should grant a motion for summary judgment when 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." Fed.R.Civ.P. 56. The party moving for
summary judgment is initially responsible for identifying
portions of pleadings and discovery that show the lack of a
genuine issue of material fact. Tubacex, Inc. v.
M/VRisan, 45 F.3d 951, 954 (5th Cir. 1995). The court
must deny the motion for summary judgment if the movant fails
to meet this burden. Id.
movant makes this showing, however, the burden then shifts to
the non-moving party to "set forth specific facts
showing that there is a genuine issue for trial."
Anderson v. Liberty Lobby, Inc., 417 U.S.
242, 248 (1986) (quotations omitted). This requires more than
mere allegations or denials of the adverse party's
pleadings. Instead, the nonmovant must submit
"significant probative evidence" in support of his
claim. State Farm Life Ins. Co. v. Gutterman, 896
F.2d 116, 118 (5th Cir. 1990). "If the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted." Anderson, 477 U.S. at
249 (citations omitted).
may not make credibility determinations or weigh the evidence
in ruling on a motion for summary judgment. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000). The court is also required to view all evidence in
the light most favorable to the non-moving party and draw all
reasonable inferences in that party's favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this
standard, a genuine issue of material fact exists if a
reasonable trier of fact could render a verdict for the
nonmoving party. Brumfield v. Rollins, 551 F.3d 322,
326 (5th Cir. 2008).