IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 26, 2013
No. 12-30429 Lyle W. Cayce
Clerk
MCKNIGHT MCGEE; RUFUS MCGEE; GLADYS MCGEE,
Plaintiffs - Appellants
v.
STATE FARM FIRE & CASUALTY CO.,
Defendant - Appellee
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Cons w/ 12-30501
OTIS SARTIN; CYNTHIA M. SARTIN,
Plaintiffs - Appellants
v.
STATE FARM FIRE & CASUALTY COMPANY,
Defendant - Appellee
________________________________________
Cons w/ 12-30502
CATHERINE WILLIAMS,
Plaintiff - Appellant
v.
STATE FARM FIRE & CASUALTY COMPANY,
Defendant - Appellee
No. 12-30429
cons. w/ No. 12-30501
No. 12-30502
No. 12-30616
No. 12-30621
No. 12-30622
No. 12-30624
_______________________________________
Cons w/ 12-30616
LEAH JOURDAIN; JOSEPH JOURDAIN,
Plaintiffs - Appellants
v.
STATE FARM FIRE & CASUALTY COMPANY,
Defendant - Appellee
_______________________________________
Cons w/ 12-30621
MORRIS JORDAN; TERRI JORDAN,
Plaintiffs - Appellants
v.
STATE FARM FIRE & CASUALTY CO.,
Defendant - Appellee
_______________________________________
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No. 12-30429
cons. w/ No. 12-30501
No. 12-30502
No. 12-30616
No. 12-30621
No. 12-30622
No. 12-30624
Cons w/ 12-30622
TRAVELLA MCINTOSH,
Plaintiff - Appellant
v.
STATE FARM FIRE & CASUALTY COMPANY,
Defendant - Appellee
_______________________________________
Cons w/ 12-30624
ALVIN JACKSON; TEENER JACKSON,
Plaintiffs - Appellants
v.
STATE FARM FIRE & CASUALTY COMPANY,
Defendant - Appellee
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:11-CV-1686
Before JONES, DENNIS, and HIGGINSON, Circuit Judges.
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No. 12-30621
No. 12-30622
No. 12-30624
PER CURIAM:*
In these seven consolidated cases, McKnight McGee and other property
owners in Orleans Parish (“Appellants”) appeal the FED. R. CIV. P. 12(c)
dismissals of their claims seeking damages caused by Hurricane Katrina.
Because Appellants’ claims are untimely, we affirm.
I.
On September 3, 2010, Appellants filed a mass joinder suit seeking
payments from their homeowner insurer, State Farm Fire & Casualty Company
(“State Farm”), for wind damage caused by Hurricane Katrina. The district
court granted State Farm’s motion to sever the mass joinder and ordered
Appellants’ counsel to file individual amended complaints no later than July 19,
2011. Appellants filed their individual complaints on July 15, 2011, each
identical to the mass joinder complaint. State Farm moved for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c), noting that the
prescriptive period for filing Hurricane Katrina claims had expired more than
three years earlier on September 1, 2007. After concluding that Appellants had
not met their burden of pleading facts establishing suspension of prescription
under Louisiana law, the district court dismissed the claims with prejudice.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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II.
We review a district court’s order granting a Rule 12(c) motion for
judgment on the pleadings de novo, using the same standards applied to a
Rule 12(b)(6) motion to dismiss. Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir.
2004).
Under Louisiana law, all claims filed against an insurer related to losses
from Hurricane Katrina had to be filed by September 1, 2007. 2006 La. Acts
802. Appellants filed suit on September 7, 2010, more than three years after the
prescriptive deadline. Appellants’ claims are facially prescribed, and Appellants
bear the burden of proving suspension of the prescriptive period. Taranto v. La.
Citizens Prop. Ins. Corp., 62 So. 3d 721, 726 (La. 2011).1
Appellants assert suspension under Louisiana Code of Civil Procedure
Art. 596, which provides that “prescription on the claims arising out of the
transactions or occurrences described in a petition brought on behalf of a class
is suspended on the filing of the petition as to all members of the class as defined
or described therein.” La. Code Civ. P. art. 596 (2012). This suspension lasts
until, inter alia, there is notice that the court declined to certify the class. Id.
To receive the benefit of suspension of prescription provided in Article 596, “an
individual filing an independent suit must establish three predicate facts: (1) the
1
Contrary to Appellants’ assertions, whether prescription was suspended is a question
of law, not fact. Newby v. Enron Corp., 542 F.3d 463, 468 (5th Cir. 2008).
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No. 12-30624
existence of a timely filed class action proceeding against the defendant; (2) that
he or she is a member of the class described or defined in the identified class
petition; and (3) that the claims asserted in the independent action arise ‘out of
the transactions or occurrences described’ in that petition.” Quinn v. La. Citizens
Prop. Ins. Corp., No. 2012-CC-0152, 2012 WL 5374255, at *8 (La. Nov. 2, 2012).
In their complaints, Appellants listed the following federal class action
petitions that allegedly suspended prescription pursuant to Article 596:
(1) Connie Abadie et al. v. Aegis Security Ins. Co. et al., No. 06-5164 (E.D. La.
filed Aug. 29, 2006) (“Abadie I”); (2) Susan Abadie et al. v. Aegis Security Ins. Co.
et al., No. 07-5112 (E.D. La. filed Aug. 28, 2007) (“Abadie II”); (3) In re: Katrina
Canal Breaches Consol. Litigation, No. 05-4182 (E.D. La. filed Mar. 15, 2007)
(“Master Complaint”); and (4) Louisiana State et al. v. AAA Ins. et al., No. 07-
5528 (E.D. La. filed Sept. 11, 2007) (“Road Home”). The district court concluded
that none of these class action petitions met the requirements to suspend
prescription under Article 596 because (1) State Farm was not a defendant in
Abadie II; (2) Appellants’ claims were unrelated to the claims in Abadie I and the
Master Complaint;2 and (3) Appellants were neither class members of nor had
claims related to the class action in Road Home.
2
The district court noted that Abadie I and the Master Complaint involved attempts to
recover for flood damage, whereas the present claims seek payments for wind damage.
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No. 12-30616
No. 12-30621
No. 12-30622
No. 12-30624
On appeal, Appellants only assert all three of Article 596’s predicate
facts in regard to the Master Complaint.3 Appellants contend that prescription
is still suspended because there has been no notice that class certification was
denied by the U.S. District Court for the Eastern District of Louisiana in 2009,
even though federal rules do not allow for the publication of notice after a denial
of class certification. Recently, however, the Louisiana Supreme Court held that
“the suspension of prescription provided [under Article 596] applies only to
‘petition[s] brought on behalf of a class’ in the state courts of Louisiana.” Quinn,
2012 WL 5374255, at *15 (footnote omitted). As a federal class action petition,
the Master Complaint cannot suspend prescription under Article 596 as a matter
of law. Therefore, the district court correctly held that Appellants’ claims are
untimely.
The judgment of the district court is AFFIRMED.
3
Appellants concede that State Farm was not a defendant in Abadie II, fail to assert
membership in the Road Home class, and only cite Abadie I in the context of providing the
procedural history of the Master Complaint. Failure to adequately brief an issue on appeal
constitutes waiver of that argument. United States v. Thames, 214 F.3d 608, 611 n.3 (5th Cir.
2000).
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