V.L. CROSS, et al., Plaintiffs-Appellants, v. Howell K. LUCIUS, et al., Defendants-Appellees.
No. 82-3159.
United States Court of Appeals, Fifth Circuit.
Sept. 2, 1983.
With respect to the second motion to amend, Foster sought to invoke the plain language of the DTPA permitting filing without notice to avoid the statute of limitations. The district court engrafted a new requirement, not mentioned in the statute or Texas caselaw, that the plaintiff not have known of the relevant facts for 30 days prior to filing suit. If Texas had wished such a requirement, it would have been easy enough to include it in the statute; they did not.
For these reasons, we hold that the district court abused its discretion in denying both motions to amend.
The judgment of the trial court is, accordingly, REVERSED, and this case is REMANDED for further proceedings not inconsistent herewith.
Watson, Murchison, Crews, Arthur & Corkern, Arthur C. Watson, Natchitoches, La., Edgar Perkins, Jr., DeQuincy, La., Blanchard, Walker, O‘Quin & Roberts, John T. Cox, Jr., Shreveport, La., for Lucius et al.
William J. Guste, Jr., Atty. Gen., Charles E. Welsh, Shreveport, La., for Guste, Burges and Pickett.
RANDALL, Circuit Judge:
On appeal, the plaintiffs challenge the district court‘s dismissal of their case with prejudice for failure to state a claim upon which relief can be granted. See
Because the district court dismissed this case under
Plaintiffs V.L. Cross and Rufus Cross, for themselves and on behalf of all of their similarly situated relatives, have sued six of the descendants of R.J. Lucius, Jr., (the “Lucius defendants“) for $400,000 in damages and a declaration that the allegedly fraudulent deeds conveying the property from the Crosses to Lucius are null and void. The plaintiffs maintain that the wrongful deprivation of their ancestors’ land was accomplished in violation of
The district court dismissed the plaintiffs’ action against the Lucius defendants on the ground that R.J. Lucius, Jr.‘s descendants could not be held liable for his wrongful taking of the property from the plaintiffs’ ancestors:
The only allegation is that defendants were denied their rights to equal protection under the law and to due process of law by Mr. R.J. Lucius Jr. when he took the subject property from the plaintiffs’ ancestors in title . . . . Under no theory of law of which this court is aware may the descendants of Mr. Lucius be held liable for his actions.
Record at 64-65. In essence, the court concluded that the sins of the fathers would not be visited upon the children.1 In legal parlance, it concluded that the Cross ancestors’ cause of action against the Lucius ancestor for his tortious conduct did not survive the deaths of the original parties. The problem with the court‘s approach, a problem caused at least in part by the plaintiffs’ inartfully drawn pleadings, is in its assumption that this is indeed an action sounding in tort. The case may also be characterized as a suit by the Cross heirs about the present deprivation of their property. Viewed in this way, the suit is not a survivors’ action at all, but an action analogous to the Louisiana petitory action to obtain recognition of the plaintiffs’ owner-
The Lucius defendants requested dismissal of the plaintiffs’ action on the ground that it was barred by the Louisiana prescriptive statutes, as well as on the grounds that there were no allegations of tortious conduct for which relief could be granted and that the complaint failed to state a claim upon which relief could be granted. Because the statute-of-limitations defense provides a more well-marked path to a resolution of this case, we have chosen to take that route rather than the district court‘s.3 In so doing, however, we do not hold or mean to imply that the plaintiffs have stated a cause of action under
A statute-of-limitations defense may be raised in a motion to dismiss under
Under Louisiana law, an action for an “offense or quasi offense” against the person or property must be brought within one year.
The plaintiff‘s claim could also be analogized to a petitory action for the recognition of ownership of the property. See
The plaintiffs argue, however, that the ancient rule that “statutes of limitation do not run against those incapable of acting” should apply, thereby tolling the running of the statutes. The gist of this argument is that blacks in northern Louisiana have been incapable of bringing suits against whites for the past fifty years because racial prejudice, allegedly built into northern Louisiana society, prevented them from obtaining financial backing and legal representation.
The Louisiana doctrine suspending the statutes of limitation for those incapable of acting—contra non valentem agere nulla currit praescriptio—generally applies only in extremely limited circumstances. Section 3521 of the Civil Code expressly provides that “[p]rescription runs against all persons, unless they are included in some exception established by law.”
(1) Where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff‘s action; (2) Where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; . . . (3) Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action . . . [;] and (4) Where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.
Id. at 1321-22 (emphasis deleted and citations and footnotes omitted). The Corsey court added a fifth situation to the list—where the plaintiff‘s mental incapacity is the result of the defendant‘s wrongful conduct—but it restated the traditional rule that neither a person‘s physical illness nor his mental incapacity (unless he has been interdicted) will toll the prescriptive statutes. Id. at 1323.
A Louisiana Court of Appeals recently refused to apply the contra non valentem doctrine in a case similar to this one. In Grant v. Carroll, 424 So.2d 389 (La.App.1982), the plaintiff contended that the prescriptive period governing her medical malpractice action should have been suspended during the two-to-three-year period in which she had been unable to find an attorney to represent her. The appellate court disagreed and noted that
the defendant . . . did not act to prevent plaintiff from timely pursuing her claim nor was plaintiff ignorant of her cause of
action . . . . Further, there was no legal cause which prevented the attorneys from taking cognizance of or acting upon plaintiff‘s claim. Rather, the attorneys either declined for personal reasons or because they were of the opinion that plaintiff‘s claim had prescribed. Therefore, the prescriptive period of one year from the date of plaintiff‘s knowledge of the alleged negligent act was not tolled.
Id. at 392. Here, as in Grant, there is no allegation that the Lucius defendants, or even their ancestor, prevented the plaintiffs from pursuing their claim or kept them in ignorance of their cause of action, nor was there any legal barrier to the plaintiffs’ bringing this action. It would seem that the plaintiffs did not even try to contact an attorney until they obtained their present counsel. We conclude that the Louisiana courts would not apply the contra non valentem doctrine to the plaintiffs’ case.
Having concluded that the plaintiffs’ claim would be barred by the Louisiana prescriptive statutes, we must determine whether the application of those statutes would be inconsistent with the federal policy underlying the civil rights statutes. Tomanio, supra, 446 U.S. at 486, 100 S.Ct. at 1796. We find no inconsistency here. Even if the plaintiffs’ allegations that they could not have obtained legal representation during the earlier part of this century because no lawyer would represent a black person in a suit against a white person are true, the plaintiffs conceded at oral argument that this situation had improved by the 1960s, perhaps as a result of the upsurge in civil rights litigation during that period. The plaintiffs still delayed twenty years from that time until they brought this action.
Further, the policies underlying the civil rights statutes include the compensation of persons injured by the deprivation of federal rights and the prevention of abuses of power by those acting under color of state law. Robertson v. Wegmann, 436 U.S. 584, 590-93, 98 S.Ct. 1991, 1995-96, 56 L.Ed.2d 554 (1978). While the sheriff who allegedly aided R.J. Lucius, Jr., in taking the Cross ancestors’ property away fifty years ago may have been acting under color of state law, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (law enforcement officer acting in concert with private party), the lawyers and financial institutions who allegedly refused to aid the plaintiffs during the first half of the century were not. See Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (public defender‘s performance as counsel in state criminal proceeding not action under color of state law within the meaning of section 1983); cf. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (actions of regulated private utility not state action). Since the difficulty of obtaining counsel to represent black people in a suit against white people is concededly a relic of the past, the application of the Louisiana prescriptive statutes to a case such as this one will not undermine the policies of the civil rights statutes. Accordingly, we hold that the plaintiffs’ claim against the Lucius defendants was properly dismissed.
Our conclusion that the application of the Louisiana prescriptive statutes is not inconsistent with federal law would also resolve the plaintiffs’ claim against the state defendants that the prescriptive statutes are unconstitutional as applied. We have no jurisdiction to reach the plaintiffs’ claim against the state defendants, however, because there is presently no live case or controversy between the plaintiffs and the state defendants.
It is hornbook law that one who “would invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy.” City of Los Angeles v. Lyons, --- U.S. ----, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983) (citing Flast v. Cohen, 392 U.S. 83, 94-101, 88 S.Ct. 1942, 1949-1953, 20 L.Ed.2d 947 (1968)). “The basic inquiry is whether the ‘conflicting contentions of the parties . . . present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not
The plaintiffs sued the state judges as members of a class of judges who apply the Louisiana prescriptive statutes, and who allegedly would not make any inquiry into whether the plaintiffs could not have brought their claim earlier because black persons could not obtain legal and financial assistance. The plaintiffs also complain that the state judges do not appoint counsel to represent plaintiffs “threatened with the loss of real property rights in executory proceedings.” The plaintiffs, however, have never filed their claim in state court; hence, we have no way of knowing whether the state court judges would in fact apply the state prescriptive statutes as the plaintiffs fear.
While the case law discussed supra indicates that the state courts would reject the plaintiffs’ suggested application of the doctrine of contra non valentem, we can only speculate at this point that if the plaintiffs filed their case in state court, the Lucius defendants might plead a prescriptive bar, the state courts might not inquire into the reasons for the plaintiffs’ delay in bringing this action and might not appoint counsel to represent them. We know little more about the contents of the plaintiffs’ claim than did the Supreme Court in Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977), when the Court was unable to consider the merits of a claim where the plaintiff alleged that he “ha[d] another son who ‘if ever arrested or brought under an attempt at arrest or suspicion of a felony, might flee or give the appearance of fleeing, and would therefore be in danger of being killed by these defendants . . . .‘” Id. at 172 n. 2, 97 S.Ct. at 1740 n. 2 (emphasis in original). The plaintiffs’ hypothetical controversy with the state defendants simply has not ripened into a definite and concrete dispute capable of judicial resolution.5
The district court‘s dismissal of the plaintiffs’ action is AFFIRMED.
CLARK, Chief Judge, concurring:
While my analysis differs from that of the majority, I reach the same result.
The plaintiffs brought this suit under
Section 1988 teaches that we should look to state law in determining whether a cause of action under the civil rights statutes survives the death of a plaintiff or defendant.2 See Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978); Brazier v. Cherry, 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961); Pritchard v. Smith, 289 F.2d 153 (8th Cir.1961). See also Moor v. County of Alameda, 411 U.S. 693, 702 n. 14, 93 S.Ct. 1785, 1792 n. 14, 36 L.Ed.2d 596 (1973). This principle has not been extended, however, to cases such as this,3 and in my view it could not be. Here the alleged wrongdoer has been dead for decades. The defendants named in this suit are not here as survivor-representatives of the deceased violator but only because they happen to be successors-in-title to the only person the statutes allow to be sued. If they were complete strangers to the original R.J. Lucius and just happened to have purchased the property, the claim would be the same: R.J. Lucius acted under color of law to deprive our ancestors of this land, we are the rightful owners of title, give us back our land. Allowing the plaintiffs to proceed against these parties under sections 1983 and 1985(3) would create a right of action which these statutes do not grant. If those who hold the property that person acquired are to be made accountable, it must be under state property law, not these statutes. I agree with the district court: There is no room in these civil rights statutes for the sins of the father to be visited upon his children.
This view is consistent with Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which held the doctrine of respondeat superior inapplicable to actions brought under section 1983. In reaching this conclusion, the Monell Court emphasized that the language of section 1983 imposes liability only on the wrongdoer. Id. at 691-92, 98 S.Ct. at 2036. Therefore, for a city to be held liable under section 1983, the city itself, rather than a city employee, must have subjected the plaintiff to a deprivation of a federally secured right. Monell thus makes clear that a plaintiff who brings a civil rights action that is analogous to a state claim may not utilize concepts of state law applicable to that claim (such as respondeat superior) that are inconsistent with the plain words of the civil rights statute under which he brings his claim.
The majority finds hidden in the plaintiffs’ inartfully-drawn complaint “an action analogous to the Louisiana petitory action,” ante, at 155, the Louisiana civil-law version of an action to try title. I am not certain whether the majority means this is a civil rights claim that is analogous to a petitory action or a pendent state claim under the Louisiana petitory statute. If the former is intended, I would follow the analysis above instead of that relied on by the majority. If the latter is what is
Because either analysis would require dismissal without delving into the Louisiana law of prescription, I, like the majority, find it unnecessary to resolve the question whether application of the prescription statutes to the plaintiffs is unconstitutional.