Mercato Elisio, LLC v. Deveney et al, No. 2:2015cv00563 - Document 72 (E.D. La. 2016)

Court Description: ORDER AND REASONS - the Court DENIES Mercato'S motion to strike exhibits to defendantS' motion for summary judgment regarding prescription. The Court GRANTS defendantS' motion for summary judgment regarding prescription. The Court DENIES AS MOOT defendants' motion for summary judgment on the merits and Mercato's related motion to strike.. Signed by Judge Sarah S. Vance on 8/8/16. (jjs)

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Mercato Elisio, LLC v. Deveney et al Doc. 72 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA MERCATO ELISIO, LLC VERSUS CIVIL ACTION NO. 15-563 J OHN DEVENEY, DEVENEY COMMUNICATION CONSULTING, LLC, AND CHRIS COSTELLO SECTION “R” (1) ORD ER AN D REASON S Defendants J ohn Deveney, Deveney Com m unication Consulting, LLC, and Chris Costello have filed two m otions for sum m ary judgm ent on plaintiff Mercato Elisio, LLC’s claim s. The first m otion seeks summ ary judgment on the grounds that plaintiff’s claim s are barred by the applicable one-year prescriptive period. The second m otion seeks sum m ary judgm ent on the m erits. In response, Mercato Elisio, LLC has filed m otions to strike the exhibits accompanying defendants’ two m otions and has also responded on the m erits. For the following reasons, the Court holds that defendants’ prescription exhibits are adm issible under the Federal Rules of Evidence and denies Mercato Elisio, LLC’s m otion to strike. Further, the Court grants defendants’ m otion for sum m ary judgm ent on grounds of prescription because there is no genuine issue of m aterial fact that each of plaintiff’s Dockets.Justia.com claim s accrued and prescription began to run m ore than one year before plaintiff filed this action. The Court denies as m oot defendants’ m otion for sum m ary judgm ent on the merits and Mercato Elisio, LLC’s related motion to strike the exhibits subm itted in support of that m otion. I. BACKGROU N D Mercato Elisio, LLC filed suit on February 20 , 20 15 against J ohn Deveney, Deveney Com m unication Consulting, LLC, and Chris Costello for im properly influencing the Historic District Landm arks Com m ission for the City of New Orleans (HDLC) to fail to approve an application filed by Mercato that was necessary for one of its projects. 1 Defendant J ohn Deveney is an HDLC com m issioner, a m ember of the Fauborg Marigny Im provement Association (FMIA), and the owner of Deveney Com m unications. Defendant Chris Costello is an em ployee of Deveney Com m unications and an officer of the FMIA. 2 Deveney Com m unications is a New Orleans m arketing and consulting firm . 3 The FMIA is a neighborhood com m unity organization that 1 2 3 R. Doc. 1. Id. at 5. Id. at 2, 5. 2 opposed Mercato’s application, and Deveney Com m unications has, in the past, performed both paid and unpaid work on behalf of the FMIA. 4 Mercato owns property located at 50 1 Elysian Fields Avenue in the Fauborg Marigny neighborhood of New Orleans. 5 In 20 12, Mercato sought to build out the existing structures on the Elysian Fields property and develop an apartm ent building, dubbed the “Elisio Lofts.”6 Fauborg Marigny is a designated historic district, and New Orleans m unicipal ordinances require owners of property situated in such districts to apply for and receive a Certificate of Appropriateness before perform ing exterior construction. 7 Certificates are granted by the HDLC. After a hearing on August 10 , 20 12, Mercato’s application for a Certificate of Appropriateness failed to win a m ajority vote of the HDLC, effectively denying the application. 8 Mercato successfully appealed the HDLC decision to the New Orleans City Council and received a conditional approval to begin dem olition and construction in September 20 12. 9 4 5 6 7 8 9 Id. at 5. Id. at 3. Id. Id. at 4. R. Doc. 17-4. R. Doc. 17-5 at 34. 3 Mercato’s core allegation is that defendant J ohn Deveney should have recused himself from the discussion surrounding the Elisio Lofts project, and that his failure to do so denied Mercato a fair vote. Deveney did not actually vote on Mercato’s Certificate of Appropriateness; he was out-of-town for a wedding. 10 Instead, Deveney sent a letter to his fellow HDLC com m issioners outlining his opposition to Mercato’s application and urging the comm ission to deny it. 11 Mercato alleges that this letter im properly influenced HDLC m embers and thereby denied Mercato a fair hearing. Mercato also alleges that Costello contributed to drafting the letter. Mercato argues that Deveney had a conflict of interest because Deveney Com m unications had perform ed paid work for the FMIA in the past. The com pany therefore, according to Mercato, “stood to profit” if Mercato was denied its Certificate and the FMIA was perceived to have won a public relations battle against the Elisio Lofts project. 12 The com plaint alleges that both Deveney and Costello also “stood to profit,” presum ably through Deveney Com m unications, if Mercato’s application failed to win approval. 13 Based on this purported conflict of interest, Mercato has asserted 10 11 12 13 See R. Doc. 17-7 at 2. Id. R. Doc 1 at 6. Id. at 8-9. 4 claim s against the three defendants under the United States and Louisiana constitutions, state tort law, and the Louisiana Unfair Trade Practices Act (LUTPA). Defendants’ first m otion for sum m ary judgment asserts that all of Mercato’s claims have prescribed. For the following reasons, the Court grants the motion. The Court denies defendants’ m otion for sum m ary judgm ent on the merits as m oot. II. LEGAL STAN D ARD Sum m ary judgment is warranted when “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 of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either 5 support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 10 75. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-m oving party.” EEOC v. Sim baki, Ltd., 767 F.3d 475, 481 (5th Cir. 20 14). If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonm oving party can then defeat the m otion by either countering with evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or “showing that the m oving party’s evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by m erely pointing out that the evidence in the record is insufficient with respect to an essential elem ent of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a 6 genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)). III. D ISCU SSION A. Me rcato ’s Mo tio n to Strike Exh ibits Su p p o rtin g D e fe n d an ts ’ Mo tio n fo r Su m m ary Ju d gm e n t Re gard in g Pre s criptio n . The Court first considers Mercato’s m otion to strike the exhibits accom panying defendants’ m otion for sum m ary judgm ent regarding prescription. Mercato contends that defendants have failed to properly authenticate any of the exhibits. Mercato also argues that Exhibits A, C-F, and H are hearsay. In response to Mercato’s m otion to strike, defendants subm itted an affidavit prepared by J oyce J oseph, a Deputy City Attorney with the City of New Orleans. 14 14 The affidavit attests to the authenticity of the exhibits R. Doc. 33-2. 7 accom panying defendants’ m otion for sum m ary judgm ent regarding prescription. 15 Mercato argues that the J oseph affidavit is untim ely and the Court should ignore it. Under Federal Rule of Civil Procedure 56(e), “[i]f a party fails to properly support an assertion of fact . . . the court m ay: (1) give an opportunity to properly support or address the fact; . . . or (4) issue any other appropriate order.” The Fifth Circuit has held that district courts have discretion to permit a party to cure defects in evidence supporting or opposing sum mary judgm ent. See Stingley v. Den– Mar Inc., 347 Fed. App’x. 14, 20 (5th Cir. 20 0 9) (“[T]he decision of whether to give parties the opportunity to remedy m aterial presented for sum m ary judgm ent is within the discretion of the district court.”); Gordon v. W atson, 622 F.2d 120 , 123 (5th Cir. 1980 ) (“When sum m ary judgm ent is inappropriate because the supporting or opposing m aterials are im proper, the district court has am ple discretion to call upon the parties to rem edy the defects, by subm itting affidavits or otherwise.”); see also McMahon v. Digital Equipm ent Corp., 162 F.3d 28, 34 n.6 (1st Cir. 1998) (supplemental affidavits in response to m otion to strike cured initial failure to authenticate documents). Accordingly, the Court chooses to consider the J oseph Affidavit in deciding 15 Id. 8 defendants’ m otion for sum m ary judgment. In doing so, the Court notes that (1) Mercato has never challenged the authenticity, as distinguished from the need for an authenticating affidavit, of any exhibit; (2) the exhibits Mercato m oves to strike are all either public records, documents that were produced to Mercato in a public records request, or docum ents created by Mercato’s counsel; (3) Mercato stipulated to the authenticity of several of these exhibits in a related state court proceeding, 16 and (4) Mercato had the opportunity to, and did, brief its opposition to the substance of the sum m ary judgment m otion these exhibits support. Rule 56(c)(4) sets out the requirements for an affidavit used to support or oppose sum m ary judgment. Such affidavits “m ust be m ade on personal knowledge, set out facts that would be adm issible in evidence, and show that the affiant or declarant is com petent to testify on the m atters stated.” Fed. R. Civ. P. 56(c)(4). Because the J ohnson affidavit m eets these requirements, defendants have met their burden to “produce evidence sufficient to support a finding that” each exhibit “is what the proponent claim s it is.” Fed. R. Evid. 90 1. Mercato’s authenticity argument therefore fails. Mercato’s hearsay argument fares no better. Each of the challenged exhibits is either subject to a hearsay exception or is not hearsay. Exhibit A 16 R. Doc. 33-1. 9 is a letter on City of New Orleans letterhead from a New Orleans Building Plans Exam iner, which “confirm s the actions” of the HDLC concerning Mercato’s application. 17 The letter is a statement of a public office that sets out the office’s activities, and it therefore falls under the public records hearsay exception. Fed. R. Evid. 80 3(8)(A)(1); see also W atkins v. Se. N ew spapers, Inc., 163 F. App’x 823, 825 (11th Cir. 20 0 6) (upholding adm ission of letter from Copyright Office); Oriental Health Spa v. City of Fort W ay ne, 864 F.2d 486, 490 (7th Cir. 1988) (holding that video record of city council m eeting fell under public records hearsay exception). As for Exhibits C-F, Deveney and Costello rely on these docum ents solely to establish Mercato’s knowledge of the inform ation contained in them . 18 Because these exhibits are not offered for the truth of the m atters asserted in them , they are not hearsay. Fed. R. Evid. 80 1(c)(2); see also United States v. Obregon-Rey es, 50 7 F. App’x 413, 424 (5th Cir. 20 13) (“A statement that D made a statem ent to X is not subject to attack as hearsay when its purpose is to establish the state of m ind thereby induced in X, such as . . . having knowledge.” (quoting 2 McCorm ick on Evidence § 249 (6th ed. 20 0 6)). 17 18 R. Doc. 17-4. See R. Doc. 17 at 4. 10 Finally, Exhibit H is a letter from Mercato’s attorney to the HDLC concerning the then-upcom ing vote on Mercato’s application for a Certificate of Appropriateness. 19 Because the letter is offered against Mercato, and was m ade by a party authorized by Mercato to speak on the subject, it is not hearsay. Fed. R. Evid. 80 1(d)(2)(C); see also Hanson v. W aller, 888 F.2d 80 6, 814 (11th Cir. 1989) (noting that Rule 80 1(d)(2)(C) “has been applied to allow in evidence statem ents m ade by attorneys in a representational capacity.”); W illiam s v. Union Carbide Corp., 790 F.2d 552, 555 (6th Cir. 1986) (“It is the general rule that ‘statem ents m ade by an attorney concerning a m atter within his em ploym ent m ay be adm issible against the party retaining the attorney.’” (quoting United States v. Margiotta, 662 F.2d 131, 142 (2nd Cir. 1981), cert. denied, 461 U.S. 913 (1983))). Because J oseph’s affidavit cured any purported authenticity issues with defendants exhibits, and because all of defendants’ challenged exhibits are either not hearsay or fall under a hearsay exception, Mercato’s m otion to strike is denied. Mercato further requests that if the Court perm its defendants to cure their sum mary judgm ent evidence, Mercato be given an opportunity to file a second opposition to defendants’ motion for sum m ary judgment. This 19 R. Doc. 17-11. 11 request is denied. As noted above, Mercato already had the opportunity to, and did, respond to the substance of defendants’ argum ent. Further, Mercato has identified no additional argum ents that it intends to put before the Court. B. D e fe n d an ts ’ Mo tio n fo r Su m m ary Ju d gm e n t Re gard in g Pre s criptio n . In their m otion for sum m ary judgm ent, defendants assert that all of Mercato’s claim s are barred by the applicable one-year prescriptive period. Mercato, however, insists that its claim s did not accrue until February 20 , 20 14—exactly one year before this case was filed—when Mercato became aware that Costello had aided in the drafting of Deveney’s letter to the HDLC. Mercato further argues that defendants’ conduct constituted a continuing tort, and that, even if its claim s accrued earlier, the prescriptive period is tolled by the doctrine of contra non valentem agere nulla currit praescriptio. Mercato bring claim s (1) under 42 U.S.C. § 1983 for violation of Mercato’s Fourteenth Am endm ent right to due process, (2) under article I, section 2 of the Louisiana Constitution which guarantees due process, (3) for negligent or intentional tort, and (4) under the Louisiana Unfair Trade Practices Act (LUTPA). The Court first considers the Section 1983 claim , and then the state claims. 12 a. 4 2 U .S.C § 19 8 3 Although Section 1983 provides a federal cause of action, the law borrows the statute of lim itations applicable to forum -state personal-injury torts. W allace v. Kato, 549 U.S. 384, 387 (20 0 7). “In Louisiana, the applicable statute is Louisiana Civil Code article 3492, which provides for a one-year prescriptive period from the date of injury or dam age.” Treadw ell v. St. Tam m any Par. Jail, 599 F. App’x 189, 190 (5th Cir. 20 15). Although the period of lim itation is set by state law, “the accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law.” W allace, 549 U.S. at 388 (em phasis in the original). “Under federal law, a claim generally accrues the m om ent the plaintiff becomes aware that he has suffered an injury or has sufficient inform ation to know that he has been injured and that there is a connection between his injury and the defendant’s actions.” W ashington v. Tex. Dep’t. of Crim inal Justice, No. 1520 369, 20 16 WL 3563933, at *1 (5th Cir. J une 30 , 20 16) (internal quotations om itted); see also Gartrell v. Gay lor, 981 F.2d 254, 257 (5th Cir. 1993) (“Under federal law, a cause of action accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action.”). As noted above, Mercato m aintains that its claim s did not accrue until it learned of Costello’s involvement in drafting Deveney’s letter to the HDLC. 13 As an initial m atter, a plaintiff need not know the identity of every potential defendant in order to start the prescription clock. See, e.g., Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir. 1998) (Section 1983 claim accrued as to all defendants when plaintiff was injured, not years later when plaintiff learned identity of additional defendants). Mercato argues, however, that until it learned of Costello’s specific role in drafting the letter, it “could not have known of the involvem ent of the FMIA in constructing the letter, and therefore [could] not have com prehended the substantial econom ic interest involved.”20 This argument is underm ined by Mercato’s own allegations. Mercato’s theory of im proper influence, as outlined in its com plaint, appears to run as follows: (1) J ohn Deveney is both a voting m ember of the HDLC and the sole owner of Deveney Com m unications; (2) Deveney Com munications has, in the past, performed paid work for the FMIA; (3) the FMIA publically opposed the Elisio Lofts project; and (4) Deveney Com m unications would— in some unspecified way—“benefit financially” if the FMIA’s opposition to the Elisio Lofts project was successful. Deveney, under Mercato’s theory, should have recused him self, and, although he did not actually vote on the 20 R. Doc. 35 at 9. 14 project, the letter Deveney sent to his colleagues constituted im proper participation in the debate and discussion of the m atter. It is unclear what, if anything, Costello adds to the purported scheme. Mercato provides no reason why, if Deveney Com m unications im properly sought to influence the HDLC vote for its own profit, that influence would have to com e from Costello, a m ere em ployee and editor of the offending letter, and not Deveney him self who ow ns Deveney Com m unications and wrote the letter under his own nam e. Mercato, in fact, alleges that both J ohn Deveney and Deveney Com m unications “stood to profit” if Mercato’s application was unsuccessful. 21 It alleges that Deveney him self had a “duty to recuse himself and not to participate in debate or discussion on the m atter” of Mercato’s application. 22 Mercato’s alleged injury therefore occurred when Deveney wrote and sent a letter to HDLC m embers, and the com m ission did not approve Mercato’s application. Even if Costello had taken no part in the drafting of the letter, the injury would rem ain the sam e. Accordingly, Mercato’s cause of action arose for purposes of Section 1983 when Mercato knew both that (1) Deveney had sent the letter to the HDLC com m issioners, and (2) Deveney, Deveney Com m unications, and the FMIA 21 22 R. Doc. 1 at 8-9. Id. at 7. 15 were connected in the ways described above. For the reasons outlined below, the Court finds that the claim accrued no later than April 19, 20 13. Mercato does not dispute that it received Deveney’s letter to the HDLC com m issioners on April 19, 20 13 in response to a public records request to the City of New Orleans. 23 Mercato therefore knew of the letter no later than that date, which is m ore than one year before it filed suit on February 20 , 20 15. Defendants provide further uncontroverted evidence that Mercato was aware—and suspicious—of the connection between Deveney, Deveney Com m unication long before it received Deveney’s letter from the City. In a letter to the HDLC dated August 7, 20 12—days before the HDLC voted on the Elisio Lofts application—counsel for Mercato 24 outlined the “substantial concerns” of his client “with regard to certain Com m ission m embers considering [the Elisio Lofts] project.”25 In the letter, Mercato’s counsel alleges that Deveney has not recused himself “despite obvious conflicts of interest,”26 and states that “[i]t is well known that Mr. Deveney’s com m unications firm , Deveney Com munications, has perform ed both paid 23 R. Doc. 17-2; R. Doc. 17-6. For purposes of prescription, knowledge of Mercato’s attorney is im puted to Mercato. See, e.g., Veal v. Geraci, 23 F.3d 722, 725 (2d Cir. 1994) (plaintiff’s Section 1983 claim time-barred because his attorney knew of injury outside three-year statute of lim itations period). 25 R. Doc. 17-11 at 1. 26 Id. 16 24 and pro bono m arketing and com m unications work for the FMIA . . . .”27 The letter goes on to allege that “[a] sim ple internet search for ‘Deveney Com m unications FMIA’ produces links that further evidence” the association between Deveney and the FMIA. 28 In another letter, dated J anuary 4, 20 13, an attorney for Mercato writes: It has com e to m y attention that the Historic District Landm arks Com m ission (“HDLC”) m ay have violated the due process rights of Mercato Elisio LLC in failing to afford im partial review and basic fairness in connection with the HDLC’s review of this com pany’s application for a certificate of appropriateness . . . . In particular, we have received m ultiple docum ents and other inform ation which m ay suggest that Com m issioner J ohn Deveney m ay have inappropriately or unethically influenced or m anipulated the HDLC’s review of and its August 10 , 20 12 vote regarding this application. This conduct underm ines the integrity of the adm inistrative process and the im portant public trust afforded to the HDLC. 29 Because Mercato’s purported injury is based on the connection between Deveney, Deveney Com m unications, and the FMIA, and the August 7 and J anuary 4 letters dem onstrate that Mercato was aware of that connection when it received Deveney’s letter from the City of New Orleans, the 27 28 29 Id. at 2. Id. R. Doc. 17-10 at 8. 17 uncontroverted evidence before the Court shows that Mercato’s Section 1983 cause of action accrued no later than April 19, 20 13. Although Mercato’s action accrued in 20 13, that does not end the inquiry. Mercato’s claim s m ay still be viable if the prescriptive period was tolled. Louisiana law governs tolling of Mercato’s Section 1983 claim . W allace v. Kato, 549 U.S. 384, 394 (20 0 7) (“We have generally referred to state law for tolling rules, just as we have for the length of statutes of lim itations.”); Rubin v. O’Koren, 644 F.2d 10 23, 10 25 (5th Cir. 1981) (“[F]ederal courts, in § 1983 actions, m ust not only apply the appropriate state statute of lim itations, but also must apply the applicable state rule for tolling that statute of lim itations.”). 30 Mercato argues that its claim s are tolled under the equitable doctrine of contra non valentem . In Louisiana, contra non valentem works “[t]o m itigate the occasional harshness of prescriptive statutes . . . .” Prevo v. State ex rel. Dep’t of Pub. Safety & Corr. Div. of Prob. & Parole, 187 So. 3d 395, 398 (La. 20 15). The doctrine “only applies in ‘exceptional circum stances,’” Renfroe v. State ex rel. Dep’t of Transp. & Dev., 80 9 So. 2d 947, 953 (La. 20 0 2) (quoting La. Civ. 30 Although state tolling provisions generally govern Section 1983 claim s, they may not be applied in a m anner “inconsistent with the policies underlying § 1983 . . . .” Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir. 1998). Mercato m akes no argument, and the Court sees no basis for concluding, that Louisiana tolling law runs afoul of Section 1983 in this case. 18 Code art. 3467, Official Revision Comm ent (d)), and “the party who asserts the benefit of contra non valentem bears the burden of proving its requisite elements and applicability.” M.R. Pittm an Grp., L.L.C. v. Plaquem ines Par. Gov’t, 182 So. 3d 312, 319 (La. App. 4 Cir. 20 15). There are four factual situations in which contra non valentem m ay toll the prescriptive period: (1) where there was som e legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff’s action; (2) where there was som e condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor him self has done som e act effectually to prevent the creditor from availing him self of his cause of action; or (4) where the cause of action is neither known nor reasonably knowable by the plaintiff even though plaintiff’s ignorance is not induced by the defendant. Lom ont v. Bennett, 172 So. 3d 620 , 637 (La. 20 15). Here, Mercato invokes the third category, and alleges that Deveney actively concealed Costello’s involvem ent in drafting the letter to the HDLC com m issioners. The Louisiana Suprem e Court has described three elements that “m ust be established” for the third category of contra non valentem to apply: “(1) the defendant engages in conduct which rises to the level of concealment, m isrepresentation, fraud or ill practice; (2) the defendant’s actions effectually prevented the plaintiff from pursuing a cause of action; and (3) the plaintiff m ust have been reasonable in his or her inaction.” Prevo, 187 So. 3d at 398-99. Even assum ing that Mercato has raised an issue of fact as to 19 whether defendants engaged in concealm ent, its claim s fails to satisfy the second and third requirements. As noted above, Mercato’s injury is not dependent on Costello’s involvement. Even if defendants concealed Costello’s involvement, this did not prevent Mercato from bringing its claim s against Deveney and Deveney Comm unications. For the same reason, Mercato’s failure to bring suit was unreasonable. Because Mercato cannot m eet its burden to show that the “exceptional” doctrine of contra non valentem applies, Mercato’s claim s are not tolled. Mercato’s final argum ent to resist the application of prescription is that defendants have engaged in a “continuing violation” by blocking Mercato’s access to public records concerning the HDLC vote. 31 The Louisiana Suprem e Court defines a continuing violation or tort as one “where the operating cause of injury is a continuous one and gives rise to successive dam ages.” Miller v. Conagra, Inc., 991 So. 2d 445, 456 (La. 20 0 8). A plaintiff asserting a suspension or interruption of prescription has the burden of dem onstrating that the defendant’s conduct is a continuing tort. In re Med. Review Panel for Claim of Moses, 788 So. 2d 1173, 1177 (La. 20 0 1). Here, Mercato’s alleged injury occurred when its application failed to win approval before the HDLC. Mercato has pointed to nothing about this 31 R. Doc. 35 at 10 -11. 20 act, a single vote occurring in 20 12, that suggests a continuing tort. See id. (“[A] continuing tort is occasioned by unlawful acts, not the continuation of the ill effects of an original, wrongful act.”). Even if defendants did attem pt to conceal Costello’s role, those actions are not a continuation of the “operating cause” of Mercato’s injury. The continuing tort doctrine therefore does not apply to Mercato’s claim s. Because Mercato’s Section 1983 claim accrued no later than April 19, 20 13, Mercato filed suit nearly two years later in February 20 15, and neither contra non valentem nor the continuing tort doctrine apply, Mercato’s Section 1983 claim is barred by liberative prescription. Finally, the Court notes that even if Mercato’s injury were dependent on Costello’s involvem ent, that alone would not be enough to save Mercato’s claim s from prescription. The Fifth Circuit has held that when circum stances suggest “it would be appropriate” to investigate a potential cause of action under Section 1983, plaintiffs “acquire[] a duty to exercise reasonable diligence to discover their cause of action.” Longoria v. City of Bay City , Tex., 779 F.2d 1136, 1139 (5th Cir. 1986); see also Gartrell v. Gay lor, 981 F.2d 254, 257 (5th Cir. 1993) (“Under federal law, a cause of action accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action.” (em phasis added)). 21 In his August 7, 20 12 letter, Mercato’s attorney notes—while listing Deveney’s alleged conflicts of interest—that “Costello, the form er President of the FMIA and its current Treasurer, is also the CFO of Deveney Com m unications.”32 An em ail, also produced by the City of New Orleans to Mercato on April 19, 20 13, 33 shows that Deveney shared a draft version of his letter opposing the Elysian Fields project with Costello the day before Deveney sent it to the HDLC com m issioners. 34 Because Mercato was already suspicious of Costello’s role in influencing the HDLC com m ission, and knew that Costello had received a pre-release draft of Deveney’s letter, the uncontroverted evidence before the Court shows that Mercato had “reason to know” that Costello contributed to drafting Deveney’s letter to the HDLC no later than April 19, 20 13. Mercato’s Section 1983 claim is therefore prescribed even if, as Mercato contends, the claim is dependent on Costello’s involvem ent. b. State Claim s In addition to its Section 1983 claims, Mercato brings claim s under the Louisiana constitution, state tort law, and LUTPA. Unlike the Section 1983 claim , state law controls when these claim s accrue. Mercato’s tort and constitutional claim s fall under Louisiana’s one-year prescription for 32 33 34 R. Doc. 17-11 at 2 (citations om itted). R. Doc. 33-2 at 2. R. Doc. 17-8. 22 delictual actions. See La. Civ. Code art. 3492; Hogg v. Chevron USA, Inc., 45 So. 3d 991, 10 0 2 (La. 20 10 ) (tort), Sim s v. N ew Orleans Ry . & Light Co., 134 La. 897 (La. 1914) (constitutional). Accordingly, for these claims, “prescription com mences to run from the day injury or damage is sustained.” La. Civ. Code art. 3492. “Dam age is considered to have been sustained, within the m eaning of the article, only when it has manifested itself with sufficient certainty to support accrual of a cause of action.” Cole v. Celotex Corp., 620 So. 2d 1154, 1156 (La. 1993). Prescription, however, “does not run against one who is ignorant of the facts upon which his cause of action is based, as long as such ignorance is not willful, negligent or unreasonable.” W im berly v. Gatch, 635 So. 2d 20 6, 212 (La. 1994). Here, as explained above, Mercato’s was aware of the facts upon which its cause of action is based no later than April 19, 20 13. As further noted above, Mercato has failed to dem onstrate that contra non valorem applies beyond this date, or that defendants’ conduct constitutes a continuing tort. Mercato’s state tort and constitutional claim s were therefore barred by prescription. Finally, the Court considers Mercato’s LUTPA claim . LUTPA provides that a private action “shall be prescribed by one year running from the time of the transaction or act which gave rise to the right of action.” La. Rev. Stat. 23 § 51:140 9(E). “The prescriptive period for a private action pursuant to LUTPA is peremptive [and n]othing can interfere with the running of a perem ptive period.” Zeigler v. Hous. Auth. of N ew Orleans, 118 So. 3d 442, 451 (La. App. 4 Cir. 20 13); see also Tubos de Acero de Mexico, S.A. v. Am . Int'l Inv. Corp., 292 F.3d 471, 481 n.4 (5th Cir. 20 0 2) (“Louisiana courts have interpreted [LUTPA’s tim e] period to be peremptive rather than prescriptive.”). A perem ptive tim e period, is not subject to suspension, interruption, or renunciation, State v. McInnis Bros. Constr., 70 1 So. 2d 937, 939 (La. 1997) (citing La. Civ. Code art. 3461), and the doctrine of contra non valentum does not apply. Tubos de Acero, 292 F.3d at 481 n.4. The continuing tort doctrine m ay, however, extend a peremptive period. Id. at 482. Under LUTPA, “[t]he date of the alleged wrongful act begins the running of the prescription, even if the plaintiff was unaware of the act.” Zeigler, 118 So. 3d at 452. Here, Mercato’s claim ed injury is the nonapproval of its application before the HDLC, so any wrongful acts that contributed to that injury occurred, at the latest, at the tim e of the HDLC vote in August 20 12. As noted above, Mercato has failed to dem onstrate that defendants engaged in a continuing tort. Mercato’s LUTPA claim therefore becam e prescribed in August 20 13. 24 C. D e fe n d an ts ’ Mo tio n fo r Su m m ary Ju d gm e n t o n th e Me rits , an d Me rcato ’s Re late d Mo tio n to Strike . Because it finds that all of Mercato’s claim s are prescribed, the Court need not rule on defendants’ m otion for sum m ary judgment on the m erits or Mercato’s related motion to strike. Both m otions are denied as m oot. IV. CON CLU SION For the reasons above, the Court DENIES Mercato’s m otion to strike exhibits to defendants’ m otion prescription. for sum m ary judgm ent regarding The Court GRANTS defendants’ m otion for sum mary judgm ent regarding prescription. The Court DENIES AS MOOT defendants’ m otion for sum m ary judgment on the m erits and Mercato’s related m otion to strike. 8th New Orleans, Louisiana, this _ _ _ _ _ day of August, 20 16. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 25

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