Marion's Cleaners, LLC v. National Fire & Indemnity Exchange, No. 2:2011cv02259 - Document 43 (E.D. La. 2016)

Court Description: ORDER granting 32 Motion for Judgment on the Pleadings; granting 13 Motion for Summary Judgment. Signed by Judge Susie Morgan. (Reference: all cases)(jrc)

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Marion&#039;s Cleaners, LLC v. National Fire & Indemnity Exchange Doc. 43 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A MARION ’S CLEAN ERS, LLC, Plain tiff CIVIL ACTION VERSU S N O. 11-2 2 59 N ATION AL FIRE & IN D EMN ITY EXCH AN GE, D e fe n d an t SECTION : “E” ( 4 ) Co n s o lid a t e d w it h : MARION ’S CLEAN ERS, LLC, Pla in tiff CIVIL ACTION VERSU S N O. 11-2 3 76 N ATION AL FIRE & IN D EMN ITY EXCH AN GE, D e fe n d an t SECTION : “E” ( 4 ) ORD ER AN D REAS ON S Before the Court are two m otions filed by the Defen dant, National Fire & Indem nity Exchange (“National Fire”): (1) a m otion for sum m ary judgm ent, filed in Case No. 11-2259; 1 and (2) a m otion for judgm ent on the pleadings, filed in Case No. 11-2376. 2 Both m otions are opposed by Plaintiff Marion’s Cleaners, LLC (“Marion’s” or “Plaintiff”). The Court has considered the briefs, the record, and the applicable law and is prepared to rule. For the reasons that follow, the m otions are GRAN TED . BACKGROU N D This consolidated m atter addresses two post-Hurricane Katrina insuran cecoverage lawsuits filed by Marion’s Cleaners against National Fire. 3 Prior to Hurricane 1 Marion’s Cleaners, LLC v. N ational Fire & Indem . Exch., No. 11-2259, R. Doc. 13 (E.D. La.). Marion’s Clean ers, LLC v. N ational Fire & Indem . Exch., No. 11-2259, R. Doc. 32 (E.D. La.) (originally filed in Marion’s Clean ers, LLC v . N ational Fire & Indem . Exch., No. 11-2376, R. Doc. 10 ). 3 Marion’s Cleaners, LLC v. N ational Fire & Indem . Exch., Nos. 11-2259, 11-2376 (E.D. La.). 2 1 Dockets.Justia.com Katrina, National Fire issued policies of insurance to Marion’s Cleaners for its com m ercial properties located at 10 6 Severn Avenue in J efferson Parish, Louisian a, and at 3142 Calhoun Street in New Orleans. The parties agree the insurance policies were in effect when Hurricane Katrina m ade landfall in Louisiana and Mississippi on August 29, 20 0 5. According to Marion’s, Hurricane Katrina inflicted “serious an d devastating dam ages” to its business locations in J efferson Parish and New Orleans, causing Marion’s to incur a “loss of inventory, loss of use and loss of business incom e” at both locations. 4 According to Marion’s, National Fire failed to pay for certain covered losses which Marion’s incurred at its properties in J efferson Parish and New Orleans. 5 As a result, Marion’s filed, though years later, separate lawsuits against National Fire in Louisian a state court. Specifically, on J uly 29, 20 11, Marion’s filed suit against National Fire in the Civil District Court for the Parish of Orleans (Case No. 11-2259) for the dam ages it allegedly sustained at 3142 Calhoun Street in New Orleans. 6 Then, on August 9, 20 11, Marion’s filed an identical lawsuit against National Fire in the 24th J udicial District Court for the Parish of J efferson (Case No. 11-2376) for its alleged dam ages sustained at 10 6 Severn Avenue in J efferson. 7 Both lawsuits were tim ely rem oved to federal court on different dates in Septem ber 20 11. 8 On J anuary 10 , 20 12, National Fire filed a m otion for judgment on the pleadings in Case No. 11-2376, 9 and on March 7, 20 12, National Fire filed a m otion for sum m ary 4 Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2259, R. Doc. 1 (E.D. La.); Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2376, R. Doc. 1 (E.D. La.). 5 Marion’s Clean ers, LLC v . N ational Fire and Indem . Exch., No. 11-2259, R. Doc. 1-2 at 2 (E.D. La.); Marion’s Cleaners, LLC v . N ational Fire and Indem . Exch., No. 11-2376, R. Doc. 1-2 at 2 (E.D. La.). 6 See Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2259, R. Doc. 1-2 (E.D. La.). 7 See Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2376, R. Doc. 1-2 (E.D. La.). 8 Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2259, R. Doc. 1 (E.D. La.); Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2376, R. Doc. 1 (E.D. La.). 9 Marion’s Cleaners, LLC v . N ational Fire and Indem . Exch., No. 11-2259, R. Doc. 32 (E.D. La.). National Fire’s m otion for judgm ent on the pleadin gs, which is found at Record Docum ent 32 in Case No. 11-2259, 2 judgm ent on sim ilar grounds in Case No. 11-2259. 10 National Fire seeks sim ilar relief in both m otions, arguing that Marion’s claim s against National Fire are prescribed and that, as a result, both of Marion’s lawsuits should be dism issed with prejudice. 11 Before the Court could rule on National Fire’s m otions, Marion’s filed m otions to stay the proceedings in both lawsuits. 12 Noting that the judicial landscape was rather unsettled on the prescription issues raised in National Fire’s m otions, Marion’s pointed the Court to two cases then pending before the Louisiana Suprem e Court involving the prescription of Hurricane Katrina-related claim s. 13 Marion’s thus argued it was “in the interest of justice and the best interests of the parties and the courts to have the Louisiana Suprem e Court finally decide the prescription issues once and for all.”14 The Court agreed and granted the m otions to stay, adm inistratively closing both suits. 15 On April 7, 20 15, Marion’s filed m otions to lift the stay in both lawsuits. 16 Marion’s noted the cases which were pen ding before the Louisiana Suprem e Court—Duckw orth and Beardon—had been resolved or rem an ded for further proceedings without a final decision from Louisiana’s high court on the relevant prescription issues. This Court granted the m otions and lifted the stay in both lawsuits on J uly 7, 20 15. The Court also was originally filed as Record Docum ent 10 in Case No. 11-2376. As explained below, these two actions were consolidated under Case No. 11-2259, and National Fire’s m otion for judgm ent on the pleadings was filed under Case No. 11-2259 as Record Docum ent 32. 10 Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2259, R. Doc. 13 (E.D. La.). 11 Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2259, R. Docs. 13-2 at 12– 13, 32-1 at 8 (E.D. La.). 12 Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2259, R. Doc. 14 (E.D. La.); Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2376, R. Doc. 13 (E.D. La.). 13 Those cases were (1) Duckw orth v. Louisiana Farm Bureau Mutual Insurance Co., 20 11-CA-0 837 (La. App. 4 Cir.) (La. Writ. No. 20 11-C-2835); and (2) Beardon v. Louisiana Citizens Property Insurance Corp., 20 11-CA-1319 (La. Ct. App. 4 Cir.) (La. Writ. No. 20 11-C-2654). 14 Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2259, R. Doc. 14-1 at 2 (E.D. La.); Marion’s Cleaners, LLC v . N ational Fire and Indem . Exch., No. 11-2376, R. Doc. 13-1 at 2 (E.D. La.). 15 Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2259, R. Doc. 28 (E.D. La.); Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2376, R. Doc. 25 (E.D. La.). 16 Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2259, R. Doc. 29 (E.D. La.); Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2376, R. Doc. 27 (E.D. La.). 3 reinstated the m otions which were pending prior to the m atters being stayed, including (1) National Fire’s m otion for judgm ent on the pleadings (Case No. 11-2376); and (2) National Fire’s m otion for sum m ary judgm ent (Case No. 11-2259). 17 On the sam e date, the Court consolidated Marion’s suits under Case No. 11-2259 pursuant to Federal Rule of Civil Procedure 42(a). LEGAL STAN D ARD S I. R ULE 12( C)—M OTION FOR J UDGMENT ON THE P LEADINGS The standard for deciding a Rule 12(c) m otion for judgm ent on the pleadings is the sam e as the standard for deciding a m otion under Rule 12(b)(6). 18 Under Rule 12(b)(6), and thus under Rule 12(c), “[t]o avoid dism issal, a com plaint m ust contain sufficient factual m atter, accepted as true, to state a claim to relief that is plausible on its face.”19 “To be plausible, the com plaint’s ‘[f]actual allegations m ust be enough to raise a right to relief above the speculative level.’”20 “In deciding whether the com plaint states a valid claim for relief, we accept all well-pleaded facts as true and construe the com plaint in the light m ost favorable to the plaintiff.”21 “We do not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions.”22 II. R ULE 56—M OTION FOR SUMMARY J UDGMENT Sum m ary judgm ent is appropriate only “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter 17 Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2259, R. Doc. 31 (E.D. La.). In re Katrina Canal Breaches Litig., 495 F.3d 191, 20 5 (5th Cir. 20 0 7). See also Gentilello v. Rege, 627 F.3d 540 , 543– 44 (5th Cir. 20 10 ). 19 In re Great Lakes Dredge & Dock Co., LLC, 624 F.3d 20 1, 210 (5th Cir. 20 10 ) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9)). 20 Id. (quotin g Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 555 (20 0 7)). 21 Id. (quotin g Doe v. My Space, Inc., 528 F.3d 413, 418 (5th Cir. 20 0 8)) (internal quotation m arks om itted). 22 Id. (citations and internal quotation m arks om itted). 18 4 of law.”23 “An issue is m aterial if its resolution could affect the outcom e of the action.”24 When assessing whether a m aterial factual dispute exists, the Court considers “all of the eviden ce in the record but refrains from m aking credibility determ inations or weighing the eviden ce.”25 All reasonable inferen ces are drawn in favor of the non-m oving party. 26 There is no genuine issue of m aterial fact if, even viewing the evidence in the light m ost favorable to the non-m oving party, no reasonable trier of fact could find for the nonm oving party, thus entitling the m oving party to judgm ent as a m atter of law. 27 If the dispositive issue is on e on which the m oving party will bear the burden of persuasion at trial, the m oving party “m ust com e forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’”28 If the m oving party fails to carry this burden, the m otion m ust be denied. If the m oving party successfully carries this burden, the burden of production then shifts to the non-m oving party to direct the Court’s attention to som ething in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of m aterial fact does indeed exist. 29 If the dispositive issue is one on which the non-m oving party will bear the burden of persuasion at trial, as in this case, the m oving party m ay satisfy its burden of production by either (1) subm itting affirm ative evidence that negates an essential elem ent of the nonm ovant’s claim , or (2) affirm atively dem onstrating that there is no evidence in the record 23 Fed. R. Civ. P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322– 23 (1986). DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 20 0 5). 25 Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8). See also Reeves v . Sanderson Plum bing Prods., Inc., 530 U.S. 133, 150 – 51 (20 0 0 ). 26 Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). 27 Sm ith v. Am edisy s, Inc., 298 F.3d 434, 440 (5th Cir. 20 0 2). 28 Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1263– 64 (5th Cir. 1991) (quoting Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)). 29 Celotex, 477 U.S. at 322– 24. 24 5 to establish an essential elem ent of the non-m ovant’s claim . 30 If the m ovant fails to affirm atively show the absence of evidence in the record, its m otion for sum m ary judgm ent m ust be denied. 31 Thus, the non-m oving party m ay defeat a m otion for sum m ary judgm ent by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the m oving party.”32 “[U]nsubstantiated assertions are not com petent sum m ary judgm ent evidence. The party opposing sum m ary judgm ent is required to identify specific evidence in the record and to articulate the precise m anner in which that eviden ce supports his or her claim . ‘Rule 56 does not im pose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to sum m ary judgm ent.’”33 D ISCU SSION I. National Fire contends, in both m otions, that it is entitled to judgm ent as a m atter of law because Marion’s claim s are prescribed. Because jurisdiction in this case is prem ised on diversity of citizenship, this Court applies the applicable Louisian a prescriptive period. 34 Under Louisiana law, the deadlin e for filing insurance claim s for property dam ages and losses caused by Hurricane Katrina was Septem ber 1, 20 0 7. 35 Both 30 Id. at 331– 32 (Bren nan, J ., dissentin g). id. at 332. 32 Id. at 332– 33. The burden would then shift back to the m ovant to dem onstrate the inadequacy of the evidence relied upon by the non-m ovant. Once attacked, “the burden of production shifts to the non m oving party, who m ust either (1) rehabilitate the evidence attacked in the m ovin g party’s papers, (2) produce additional evidence showin g the existence of a genuin e issue for trial as provided in Rule 56(e), or (3) subm it an affidavit explain in g why further discovery is necessary as provided in Rule 56(f).” Id. at 332– 33, 333 n .3. 33 Ragas v. Tenn . Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citin g Celotex, 477 U.S. at 324; Forsy th v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) an d quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 90 9, 915– 16 & n .7 (5th Cir. 1992)). 34 Holt v. State Farm Fire & Cas. Co., 627 F.3d 18 8, 191 (5th Cir. 20 10 ). See also Jam es v. Hanover Ins. Co., No. 11-2610 , 20 13 WL 3728 279, at *3 (E.D. La. J uly 12, 20 13). 35 Act No. 80 2, 20 0 6 La. Acts. See also Taranto v . La. Citizens Prop. Ins. Corp., 20 10 -C-0 10 5, p. 2 (La. 3/ 15/ 11), 62 So. 3d 721, 724. 31 See 6 parties agree Marion’s claim s against National Fire were subject to the Septem ber 1, 20 0 7 deadline. 36 Nevertheless, Marion’s filed the instant lawsuits years later on J uly 29, 20 11 (Case No. 11-2259) and on August 9, 20 11 (Case No. 11-2376). 37 It is beyond dispute that Marion’s did not sue National Fire prior to the Septem ber 1, 20 0 7 prescriptive deadline. Yet Marion’s contends its claim s did not prescribe, as the prescriptive period was, and rem ains, suspended. 38 As a general rule, the burden of proving prescription rests with the m oving party. 39 However, if the petition is prescribed on its face, prescription is presum ed and the burden of proof shifts to the Plaintiff to negate that presum ption by proving suspension or interruption. 40 Because Marion’s claim s against National Fire are prescribed on their face, it is Marion’s burden to prove that the prescriptive period was either suspended or interrupted. In an attem pt to carry its burden, Marion’s invokes the class-action tolling doctrine delineated in Louisiana Code of Civil Procedure article 596. 41 Article 596 provides that “prescription on the claim s 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 m em bers of the class as defined or described therein.” To receive the benefit of the suspension of prescription provided for in article 596, an individual filing an independent suit m ust establish three predicate facts: (1) the existence of a tim ely filed class action proceeding again st the defendant; (2) that he or she is a m em ber of the class described or defined in the identified class petition; and (3) that the claim s asserted in the 36 Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2259, R. Docs. 13-1, 19-1 (E.D. La.). See Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2259, R. Doc. 1-2 (E.D. La.); Marion’s Cleaners, LLC v . N ational Fire and Indem . Exch., No. 11-2376, R. Doc. 1-2 (E.D. La.). 38 Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2259, R. Docs. 13-1, 19-1 (E.D. La.). 39 Taranto, 62 So. 3d at 726. 40 Id. See also W illiam s v. State Farm Fire & Cas. Co., No. 11-1737, 20 12 WL 1198 810 , at *2 (E.D. La. Apr. 10 , 20 12). 41 See generally Marion’s Cleaners, LLC v . N ational Fire and Indem . Exch., No. 11-2259, R. Doc. 19 (E.D. La.); Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2376, R. Doc. 19 (E.D. La.). 37 7 independent action arise “out of the transaction or occurrences described” in that petition. 42 II. The Court first addresses this issue in the context of National Fire’s Rule 12(c) m otion for judgm ent on the pleadings, which National Fire filed in Case No. 11-2376 prior to that m atter’s consolidation with Case No. 11-2259. As noted above, in conducting a Rule 12(c) analysis, the Court is guided by the Rule 12(b)(6) standard and m ust determ in e whether the Plaintiff’s state-court petition, on its face, states a plausible claim for relief. Marion’s state-court petition does not. Because Marion’s claim s are prescribed on their face, it is Marion’s burden to show the prescriptive period was suspen ded or interrupted. But nowhere in its state-court petition does Marion’s even m ention the class-action tolling doctrine or allege that Marion’s is or was a m em ber or putative mem ber of a class. Marion’s only invokes the class-action tolling doctrine in its opposition to National Fire’s motion, and it does so sum m arily. The Court is not convinced that such sum m ary invocations of the class-action tolling doctrine are sufficient to carry Marion’s burden. 43 In W illiam s v. State Farm Fire & Casualty Co., a court in this district granted a defense m otion for judgm ent on the pleadings under sim ilar circum stances. 44 In W illiam s, the plaintiff suggested that she carried her burden by, according to the court, “sum m arily concluding in her am ended com plaint that State Farm was a nam ed defendant in four putative class actions.”45 The court found such conclusory allegations 42 Quinn v. La. Citizens Prop. Ins. Corp., 20 12-CC-0 152, p. 8 (La. 11/ 2/ 20 12), 118 So. 3d 10 11, 10 16. See, e.g., N ortshore Apothecary , Inc. v. Zurich Am . In s. Co., No. 11-2327, 20 11 WL 496560 3, at *1 (E.D. La. Oct. 19, 20 11) (granting Rule 12(b)(6) m otion to dism iss where plaintiff “m ade no showing that the runnin g of the prescription period was suspended at an y tim e”). 44 W illiam s v. State Farm Fire & Cas. Co., No. 11-1737, 20 12 WL 1198810 (E.D. La. Apr. 10 , 20 12). 45 Id. at *3. 43 8 to be insufficient, noting that “nowhere in the plaintiff’s com plaint does she state that she is or was a putative m em ber of the class actions she lists; nor does she identify which claim s were presented in those putative class actions; nor does she suggest how her current claim s have identity with the claim s presented in the list of class actions.”46 In this case, Marion’s state-court petition does not even list the class or putative class actions which Marion’s claim s to be a part of, let alone identify itself as a m em ber of those classes or explain how its claim s are sim ilar to the claim s asserted therein. Instead, Marion’s only states, in its opposition to National Fire’s m otion which raised prescription as a defense, that “[t]here were class actions involving National as a defendant after Katrina” and Marion’s was a “m em ber of those classes.”47 Sum m ary, con clusory allegations of this nature are not sufficient to invoke the class-action tolling doctrine. Based on these allegations, the Court finds that Marion’s state-court petition does not state a plausible claim for relief, an d National Fire’s Rule 12(c) m otion is granted. III. The Court now addresses these issues in the context of the m otion for sum m ary judgm ent filed by National Fire in Case No. 11-2259. Even if Marion’s state-court petition could survive a Rule 12(c) analysis, Marion’s has failed to carry its burden at the sum m ary judgm ent stage, an d National Fire’s m otion for sum m ary judgm ent m ust be granted. In this m otion, National Fire contends, as above, that Marion’s claim s are prescribed and that it is entitled to sum m ary judgm ent as a result. 48 Marion’s state-court petition in Case No. 11-2259 is identical to its petition in Case No. 11-2376, which the Court concluded is, without m ore, deficient. Assum ing, however, that the petition did 46 Id. See also Lew is v. Hanover Ins. Group, No. 10 -30 26, 20 14 WL 172383, at *2 (E.D. La. J an . 15, 20 14). Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2376, R. Doc. 19 at 3 (E.D. La.). 48 Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2259, R. Doc. 13-1 (E.D. La.). 47 9 satisfactorily state a plausible claim for relief on its face, Marion’s has still failed to establish, by pointing to undisputed facts in the record, that the prescription of its claim s was suspended under article 596 of the Louisiana Code of Civil Procedure. In its opposition to National Fire’s m otion for sum m ary judgm ent, Marion’s again argues that prescription was suspended because “[t]here were class actions involving National as a defendant after Katrina” and Marion’s was “a m em ber of those classes.”49 However, unlike its opposition to National Fire’s m otion for judgm ent on the pleadings, Marion’s opposition to the m otion for sum m ary judgm ent specifically identifies the class of which Marion’s contends it is a m em ber. 50 That class action is Louisiana State, et al. v. AAA Insurance, et al. (E.D. La. 0 7-5528), known as the “Road Hom e litigation.”51 Marion’s argues the Road Hom e litigation, which was filed in Louisiana state court on August 23, 20 0 7, interrupted the running of prescription on its claim s against National Fire, because Marion’s was a m em ber of that class and National Fire was involved in the action as a defendant. 52 However, a review of the relevant jurisprudence in this district leads the Court to the opposite conclusion. In Jam es v. Hanover Insurance Co., J udge Vance granted the defendant-insurer’s m otion for sum m ary judgm ent, finding “the filing of the Road Hom e class action could not suspend prescription of plaintiffs’ claim s under Article 596.”53 The Jam es court began by recognizing that, in the Road Hom e litigation, the class was defin ed in the state-court petition as: 49 Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2259, R. Doc. 19 at 2 (E.D. La.). Id. 51 Id. 52 Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2259, R. Doc. 19 at 2; R. Doc. 19-1 at 1– 2 (E.D. La.). 53 Jam es v. Hanover Insuran ce Co., No. 11-2610 , 20 13 WL 3728 279, at *4 (E.D. La. J uly 12, 20 13) (citing McGee v . State Farm Fire & Cas. Co., 515 F. App’x 291, 294 (5th Cir. 20 13)). 50 10 [a]ll current and form er citizens of the State of Louisiana who have applied for and received or will receive funds through The Road Hom e Program , and who have executed or will execute a subrogation or assignm ent agreem ent in favor of the State, and to whom insurance proceeds are due and/ or owed for dam ages sustained to any such recipient’s residen ce as a result of any natural or m an-m ade occurrence associated with Hurricane Katrina and/ or Rita under any policy of insurance, as plead herein, and for which the State has been or will be granted or be entitled to recover as repaym ent or reim bursem ent of funds provided to any such recipient through the Road Hom e program . 54 J udge Vance noted that the Road Hom e program is “a program developed by the state under which recipients m ay ‘apply for grants of funds to assist them in rebuilding their dam aged residen ces.’”55 “Any recipient desiring to receive funds under The Road Hom e Program had to m ake written application for funds by J uly 31, 20 0 7.”56 The court concluded: “Because plaintiffs have not alleged that they applied for benefits before the J uly 31, 20 0 7 deadline, they are not—and never were—m em bers of a class com prising ‘[a]ll current and form er citizens of the State of Louisiana who have applied for and received or will receive funds through The Road Hom e Program .’”57 This Court finds the Jam es decision to be instructive and persuasive. As in Jam es, there has been no allegation in this case that Marion’s applied for Road Hom e benefits prior to the J uly 31, 20 0 7 deadline, nor has Marion’s otherwise shown how it would qualify as a m em ber of the class of plaintiffs in the Road Hom e litigation. As a result, the Court finds that, because there has been no allegation that Marion’s applied for Road Hom e ben efits prior to J uly 31, 20 0 7, Marion’s has failed to carry its burden to show that the filing of the Road Hom e class suspended the prescription of its claim s under article 54 Id. (quotin g Louisiana State, et al. v . AAA Ins., et al., No. 2:0 7-CV-0 5528, R. Doc. 1-1 at 21). Id. 56 Id. (quotin g Louisiana State, et al. v . AAA Ins., et al., No. 2:0 7-CV-0 5528, R. Doc. 1-1 at 5) (internal quotation m arks om itted). 57 Id. 55 11 596. Moreover, the Road Hom e litigation involved plaintiffs who sustained dam ages and losses to residential properties. 58 In fact, the class in the Road Hom e litigation was defined as “current and form er citizens of the State of Louisiana who have applied for and received or will receive funds through The Road Hom e Program . . . and to whom insurance proceeds are due and/ or owed for dam ages sustained to any such recipient’s residence.”59 Therefore, even if Marion’s alleged it had applied for Road Hom e benefits prior to J uly 31, 20 0 7, it is not clear whether Marion’s would qualify as a m em ber of that class, as Marion’s seeks to recover for dam ages sustained by com m ercial properties. 60 The Court finds, for these reasons, that National Fire is entitled to sum m ary judgm ent. The m otion is granted. CON CLU SION For the foregoing reasons, IT IS ORD ERED that National Fire’s m otion for judgm ent on the pleadings (Case No. 11-2376) 61 and m otion for sum m ary judgm ent (Case No. 11-2259) 62 be and hereby are GRAN TED . N e w Orle a n s , Lo u is ian a, th is 14 th d ay o f March , 2 0 16 . ______________ _______ _ _______ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 58 Louisiana State, et al. v. AAA Ins., et al., No. 2:0 7-CV-0 5528, R. Doc. 1-1 at 21. Id. (em phasis added). 60 Marion’s Cleaners, LLC v . N ational Fire and Indem . Exch., No. 11-2259, R. Doc. 19 at 1 (E.D. La.); Marion’s Cleaners, LLC v . N ational Fire and Indem . Exch., No. 11-2376, R. Doc. 19 at 1 (E.D. La.). 61 Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2376, R. Doc. 10 (E.D. La.); No. 112259, R. Doc. 32 (E.D. La.). 62 Marion’s Cleaners, LLC v. N ational Fire and Indem . Exch., No. 11-2259, R. Doc. 13 (E.D. La.). 59 12

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