Lousteau v. Congregation of Holy Cross Southern Province, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JOHN LOUSTEAU

CIVIL ACTION

VERSUS NO: 21-1457

CONGREGATION OF HOLY CROSS SECTION: "A" (4)

SOUTHERN PROVINCE, INC., ET

AL.

ORDER AND REASONS

The following motion is before the Court: Motion to Dismiss (Rec. Doc. 22)

filed by Defendants, Congregation of Holy Cross, Moreau Province, Inc. and Holy Cross

College, Inc. (hereinafter collectively and in the singular “Holy Cross”). Plaintiff, John

Lousteau, opposes the motion. The motion, submitted on March 30, 2022, is before the

Court on the briefs without oral argument.

I. BACKGROUND

The plaintiff, John Lousteau, has filed suit against Holy Cross to obtain damages

for injuries that he claims to have suffered as a result of sexual abuse by a brother and

society member formerly employed by Holy Cross. The alleged abuse occurred in 1968

or 1969, and the perpetrator is identified as Brother Stanley Repucci.1 Lousteau was 10

or 11 years old in 1968 or 1969. (Rec. Doc. 1, Original Complaint ¶ 11). Lousteau alleges

that Repucci abused him on two separate occasions (the details of what allegedly

occurred are described in the Original Complaint) during a summer camp at Holy Cross

School in New Orleans. (Original Complaint ¶ 11). Brother Repucci was a teacher at the

1 The Original Complaint identifies the perpetrator as “Brother S.R.” The Amended

Complaint identifies Brother S.R. as Brother Stanley Repucci. (Rec. Doc. 2, Amended

Complaint). It is the Court’s understanding that Brother Stanley Repucci is deceased.

Neither the pleadings nor the memoranda indicate when Repucci died.

school and he monitored a large dormitory during the summer program. (Id. ¶ 10).

According to Lousteau, the psychological harm that he sustained as a result of the abuse

has had devastating and far-reaching effects on him and his life. (Id. ¶ 17).

On June 17, 2020, Lousteau participated in a detailed interview with

representatives of Holy Cross regarding the sexual abuse that he experienced as a child

at the hands of Brother Repucci. (Id. ¶ 18). According to the Original Complaint, the

Holy Cross representative indicated that the complaint of abuse seemed credible, and

promised that an unbiased investigation into Lousteau’s allegations would follow. (Id. ¶¶

19, 21). Lousteau claims that the Holy Cross representative also promised that Holy

Cross would pay for therapy to help him heal from the effects of the sexual abuse. But

when Lousteau tried to act on that latter promise Holy Cross abruptly cut off all

communications with him. (Id. ¶¶ 22-25).

Lousteau filed the instant civil action against Holy Cross on August 1, 2021. The

allegations support diversity jurisdiction in federal court.2 Lousteau’s claim for damages

is grounded in tort pursuant to Louisiana Civil Code article 2315. Lousteau alleges fault

on the part of Holy Cross and further alleges that Holy Cross is liable under the doctrine

of respondeat superior for the acts of Brother Repucci. This is not a case where the

plaintiff is alleging delayed recall or repressed memory in order to avoid prescription.

Rather, Lousteau contends that via § 2 of Act 322 passed in 2021, the Louisiana

Legislature revived his otherwise prescribed claims and therefore his complaint is

timely.

2 Lousteau is domiciled in Florida. Both of the Holy Cross defendants are Louisiana

citizens. The amount in controversy exceeds the sum $75,000, exclusive of interest and

costs. See 28 U.S.C. § 1332(a)(1) (diversity jurisdiction).

The Court notes that after the motion to dismiss was filed and prior to filing his

opposition, Lousteau moved to file a third amended complaint for damages, to raise

other potential grounds including contra non valentem to avoid a prescriptive bar. (Rec.

Doc. 25, Motion for Leave). That contested motion was addressed by the assigned

magistrate judge and has been denied. (Rec. Doc. 50, Order). Lousteau did not file an

objection to that ruling. Lousteau did, however, include his arguments as to contra non

valentem in his opposition to this Court, even though this issue was not briefed in the

motion to dismiss or mentioned in the Original Complaint.3

A jury trial is scheduled for November 7, 2022. (Rec. Doc. 15, Scheduling Order).

On April 7, 2022, the Court granted an unobjected-to motion to temporarily stay

discovery (and concomitantly the scheduling order deadlines) until such time as the

Court could issue the instant ruling on the motion to dismiss. (Rec. Doc. 46, Order). The

Court granted the requested stay in light of the significant and complex threshold legal

issues presented in the motion to dismiss. (Id.).

Holy Cross now moves pursuant to Federal Rule of Civil Procedure 12(c) to

dismiss all claims asserted in Lousteau’s complaint as barred by prescription. The

parties’ arguments are discussed in detail below.

II. DISCUSSION

A.

A Rule 12(c) motion for judgment on the pleadings is functionally equivalent to a

3 As explained below, the Court has not addressed contra non valentem as part of this

ruling. If Lousteau’s claims were not revived by Act 322, then his complaint is

prescribed on its face and he bears the burden of establishing that his claim against Holy

Cross has not prescribed. Wells Fargo Fin. La., Inc. v. Galloway, 231 So. 3d 793, 800

(La. App. 4th Cir. 2017) (citing Spott v. Otis Elevator Co., 601 So.2d 1355, 1361 (La.

1992)).

Rule 12(b)(6) motion to dismiss and therefore relies upon the same standards.4 Great

Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 n.8 (5th Cir.

2002) (citing 5A Wright & Miller, Fed. Prac. & Pro. § 1368, at 591 (Supp. 2002)).

In the context of a motion to dismiss the Court must accept all factual allegations

in the complaint as true and draw all reasonable inferences in the plaintiff=s favor.

Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (citing Tellabs, Inc. v.

Makor Issues & Rights, Ltd., 551 U.S. 308 (2007); Scheuer v. Rhodes, 416 U.S. 232, 236

(1974); Lovick v. Ritemoney, Ltd., 378 F.3d 433, 437 (5th Cir. 2004)). However, the

foregoing tenet is inapplicable to legal conclusions. Ashcroft v. Iqbal, 129 S. Ct. 1937,

1949 (2009). Thread-bare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice. Id. (citing Bell Atlantic Corp. v. Twombly,

550, U.S. 544, 555 (2007)).

The central issue in a Rule 12(b)(6) motion to dismiss is whether, in the light

most favorable to the plaintiff, the complaint states a valid claim for relief. Gentilello v.

Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Doe v. MySpace, Inc., 528 F.3d 413,

418 (5th Cir. 2008)). To avoid dismissal, a plaintiff must plead sufficient facts to Astate a

claim for relief that is plausible on its face.@ Id. (quoting Iqbal, 129 S. Ct. at 1949). AA

claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.@ Id. The Court does not accept as true Aconclusory allegations, unwarranted

factual inferences, or legal conclusions.@ Id. (quoting Plotkin v. IP Axess, Inc., 407 F.3d

4 Timing is essentially the difference between the two motions. A Rule 12(b)(6) motion

to dismiss must be filed before a responsive pleading, whereas a Rule 12(c) motion for

judgment on the pleadings is filed after the pleadings are closed. Jones v. Greninger,

188 F.3d 322, 324 (5th Cir. 1999); Fed. R. Civ. Pro. 12(b), (c).

690, 696 (5th Cir. 2005)). Legal conclusions must be supported by factual allegations.

Id. (quoting Iqbal, 129 S. Ct. at 1950).

B.

The alleged tortious conduct that forms the basis of Lousteau’s claims against

Holy Cross occurred in the summer of either 1968 or 1969. It is undisputed that

Lousteau’s delictual cause of action under Civil Code article 2315 allegedly accrued in

either 1968 or 1969.5 It is also undisputed that prior to 1993 (the significance of this

year is explained below), Lousteau’s cause of action was subject to a one-year

prescriptive period that was not suspended due to Lousteau’s minority. See La. Civ.

Code art. 3492 cmt. (b). Pretermitting the application of the doctrine of contra non

valentem which under certain circumstances may delay the commencement of

prescription, and assuming that prescription commenced to run when the cause of

action accrued in either 1968 or 1969 (the date that the injury or damage is sustained),

Lousteau’s cause of action against Holy Cross prescribed at some point in 1970 at the

latest. The question whether those claims remain prescribed or were revived legislatively

depends upon both the validity of Act 322’s revival provision in § 2, and assuming that it

is valid, the applicability of it to Lousteau’s claims.6

5 “Every act whatever of man that causes damage to another obliges him by whose fault

it happened to repair it.” La. Civ. Code art. 2315(A).

6 The viability of the allegations made in the proposed third amended complaint,

including the invocation of contra non valentem, is not before the Court. The Original

Complaint relies solely upon Act 322 and its revival of previously prescribed claims to

render the complaint timely under Louisiana law. The Court notes that Lousteau did

include a section in his opposition memorandum to explain his theory of how contra

non valentem might apply to his case. Lousteau asserts that since the time he was

molested, he has suffered continuously from post-traumatic stress disorder and other

psychological trauma which left him unable to pursue his legal rights until August 1,

2021, when he filed this lawsuit. Lousteau seeks to apply contra non valentem to delay

Act 322 effected amendments to La. R.S. § 9:2800.9, entitled Action against a

person for abuse of a minor. The Legislature enacted § 9:2800.9 (redesignated from

Civil Code article 3498.1) in 1993, and its enactment marked a significant change in the

law for the benefit of minor victims of sexual abuse. Beginning in 1993 with the

enactment of § 9:2800.9, a civil claim against a person for sexual abuse of a minor

became subject to a liberative prescription of ten years instead of the usual one-year

period applicable to torts or the three-year period provided in Civil Code article 3496.1.7

And unlike the ordinary one-year prescriptive period applicable to torts under Article

3492, this ten-year prescriptive period did not commence to run until the day that the

minor attained majority.8 But the 1993 version of § 9:2800.9 did not apply

the commencement of prescription until Act 322 was enacted in 2021, at which point

the Legislature prospectively eliminated prescription altogether for childhood sexual

abuse claims. Lousteau refers to tacit renunciation in his opposition memorandum but

he did not explain how Holy Cross might have renounced prescription, which Holy

Cross of course denies.

From this point forward, the Court will ignore the potential application of contra

non valentem to delay the commencement of prescription, or the possibility of

renunciation, and will assume that prescription commenced to run in 1969 at the latest,

and that Lousteau’s claims did in fact prescribe at some point in 1970. In other words,

the Court’s ruling today focuses solely on the allegations contained in the Original

Complaint to which the motion to dismiss was directed. The Court expresses no opinion

on the merits of Lousteau’s other proffered bases to avoid the accrual of liberative

prescription.

7 Civil Code article 3496.1, entitled Action against a person for abuse of a minor, was

enacted in 1988 and provided for a three-year prescriptive period against a parent or

caretaker for abuse of a minor. In 1992 it was amended to apply to “a person,” thereby

removing the limitation of parent or caretaker. The liberative prescription provided by

this article is suspended until the victim attains majority.

8 As Lousteau points out, the 1993 enactment meant that survivors typically had until

they turned 28 years old to file a lawsuit for childhood sexual abuse. Meanwhile, when

HB 492 (which later became Act 322) was introduced in the House, its main sponsor,

Representative Jason Hughes, noted that the average age of disclosure for victims of

child sexual abuse was 52 years old. (Rec. Doc. 41-2, Exhibit 2 Tr. of 5/3/21 HB 492 at

4).

retroactively, and it did not purport to affect any claims that were already prescribed by

the time it was passed into law. Thus, with Lousteau’s claim already prescribed since

1970, the enactment of § 9:2800.9 in 1993 did not inure to his benefit.9

Immediately prior to its amendment in 2021, Part A of § 9:2800.9 read as

follows:

An action against a person for sexual abuse of a minor, or for physical abuse

of a minor resulting in permanent impairment or permanent physical injury

or scarring, is subject to a liberative prescriptive period of ten years. This

prescription commences to run from the day the minor attains majority,

and this prescription shall be suspended for all purposes until the minor

reaches the age of majority. Abuse has the same meaning as

provided in Louisiana Children's Code Article 603. This

prescriptive period shall be subject to any exception of peremption provided

by law.

La. Rev. Stat. Ann. § 9:2800.9 (West 2018) (emphasis added).

The definition of “abuse” provided by Louisiana Children’s Code article 603

includes “the allowance of the infliction or attempted infliction of physical or mental

injury upon the child by a parent or any other person,” “as a result of inadequate

supervision.” La. Ch. Code art. 603(2)(a) (emphasis added). The Louisiana Supreme

Court had previously considered the pre-2021 version of § 9:2800.9 quoted above,

which incorporated the definition of “abuse” from the Children’s Code, and had held

that it applied to claims against corporations or other juridical (non-natural) persons.

SS v. State of Louisiana, 831 So. 2d 926 (La. 2002). Thus, the SS decision meant that

9 In 1993 the Legislature also enacted Civil Code article 2315.7 which allows for punitive

damages in certain circumstances involving criminal sexual activity when the victim is

seventeen years old or younger. No one has suggested that this article can apply

retroactively to conduct that occurred before its effective date, but even if it did, punitive

damages are only available against the perpetrator of the criminal sexual activity. The

alleged perpetrator in this case is Brother Repucci not Holy Cross.

claims against an entity like Holy Cross, which was not the actual perpetrator of the

alleged abuse, were also subject to the more onerous ten-year prescriptive period

applicable to claims for sexual abuse of a minor. But again, with Lousteau’s claim

already prescribed since 1970, the SS decision did not inure to his benefit.

Enter Act 322—the Legislature passed Act 322 in the 2021 regular session.

Section 1 of the Act amended § 9:2800.9 such that “[a]n action against a person for

sexual abuse of a minor, or for physical abuse of a minor resulting in permanent

impairment or permanent physical injury or scarring does not prescribe.” La. R.S. §

9:2800.9(A)(1) (emphasis added). Section 1 of Act 322 also deleted the reference to the

Children’s Code for the meaning of “abuse.”10 No one has suggested that § 1 of Act 322,

which rendered claims for sexual abuse of a minor imprescribable, was intended to

apply retroactively to claims that had already prescribed.

Thus, for purposes of Lousteau’s claims, the Legislature’s adoption of § 2 of Act

322 is more significant than the changes effected by § 1. Section 2 of Act 322 did not

10 The textual changes to Part A of § 9:2800.9 effected by Section 1 of Act 322 may be

demonstrated graphically as follows, with the shaded portions denoting newly added

text and the strikethrough portions denoting deleted text:

A. (1) An action against a person for sexual abuse of a minor, or for physical

abuse of a minor resulting in permanent impairment or permanent physical

injury or scarring, is subject to a liberative prescriptive period of ten years.

This prescription commences to run from the day the minor attains majority,

and this prescription shall be suspended for all purposes until the minor

reaches the age of majority. Abuse has the same meaning as provided in

Louisiana Children's Code Article 603. This prescriptive period shall be

subject to any exception of peremption provided by law does not prescribe.

(2) An action against a person convicted of a crime against the child does

not prescribe and may be filed at any time following conviction. “Crime

against the child” has the same meaning as provided in Children's Code

Article 603.

become part of § 9:2800.9’s text but it provides a “lookback window” to “revive”

prescribed claims for a three-year period in order to allow victims whose claims had

already prescribed to seek recovery for their injuries. Section 2 of Act 322 reads as

follows:

For a period of three years following the effective date of this Act, any

party whose action under R.S. 9:2800.9 was barred by liberative

prescription prior to the effective date of this Act shall be permitted to file

an action under R.S. 9:2800.9 against a party whose alleged actions are the

subject of R.S. 9:2800.9. It is the intent of the legislature to revive

for a period of three years any claim against a party, authorized

by R.S. 9:2800.9, that prescribed prior to the effective date of

this Act.

2021 La. Acts 322 (H.B. 492), § 2 (emphasis added).

Act 322 became effective on June 14, 2021.

It does not require a retroactivity analysis under Civil Code article 6 to discern

that the Legislature intended for § 2 Act 322 to apply retroactively.11 After all, a piece of

legislation that operates to revive an already-prescribed claim cannot be considered

anything but retroactive. Thus, Lousteau’s position is that regardless of when his cause

of action against Holy Cross prescribed, whether in 1970 or whenever, Act 322 revived it

for a period of three years, through June 14, 2024. And since this lawsuit was filed

during the three-year lookback window created by § 2 of Act 322, Lousteau contends

that his complaint against Holy Cross is timely.

11 Louisiana Civil Code article 6 states: “In the absence of contrary legislative

expression, substantive laws apply prospectively only. Procedural and interpretative

laws apply both prospectively and retroactively, unless there is a legislative expression

to the contrary.” See also La. R.S. § 1:2 (“No Section of the Revised Statutes is

retroactive unless it is expressly so stated.”)

C.

In its motion to dismiss, Holy Cross raises two multi-faceted arguments as to why

Lousteau’s claims should be deemed time-barred notwithstanding Act 322’s revival

mechanism. First, Holy Cross argues that the plain text of Act 322 forecloses the

conclusion that the revival provision found in § 2 of Act 322 applies to Lousteau’s

claims. But assuming that the Court concludes that Act 322’s revival provision does

apply to Lousteau’s claims, Holy Cross’s second argument is that reviving Lousteau’s

already-prescribed claims would be unconstitutional under both the Louisiana and

United States Constitutions; in other words, that the revival provision constitutes

invalid legislation. Specifically, Holy Cross contends that reviving a prescribed claim

violates due process and the prohibition on bills of attainder under the Louisiana

Constitution, as well as the prohibition on bills of attainder under the United States

Constitution.

With the exception of the bill of attainder argument, which is easily rejected as

meritless, the resolution of the parties’ arguments involves issues of state law. When

evaluating issues of state law, federal courts “look to the final decisions of that state's

highest court.” Temple v. McCall, 720 F.3d 301, 307 (5th Cir. 2013) (quoting Chaney v.

Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010)). In the absence of authority from

the Louisiana Supreme Court, this Court must make an Erie guess and determine, in its

best judgment, how the state Supreme Court would resolve the issue if presented with

the same case. Id. (citing Six Flags, Inc. v. Westchester Surplus Lines Ins. Co., 565 F.3d

948, 954 (5th Cir.2009)); Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). State appellate

court decisions help guide the Erie analysis unless other persuasive data convinces the

federal court that the highest court of the state would decide otherwise. Id. (quoting

Mem'l Hermann Healthcare Sys. Inc. v. Eurocopter Deutschland, 524 F.3d 676, 678

(5th Cir.2008)).

Does Act 322’s Revival Mechanism Apply to Lousteau’s Claims?

Holy Cross argues that the revival provision narrowly applies only to claims that

were subject to the ten-year prescriptive period of § 9:2800.9, and that prescribed while

that statute was in effect. Holy Cross argues that § 2 of Act 322 does not apply to claims

like Lousteau’s that prescribed prior to 1993 when La. R.S. § 2800.9 was first enacted.

In support of this contention, Holy Cross points out that § 2 explicitly revives an “action

under R.S. 9:2800.9” and that § 2 expressly affects claims “authorized by R.S.

9:2800.9.” In fact, Holy Cross points out that § 9:2800.9 is specifically referenced four

times in § 2 of Act 322. Holy Cross’s position is that the plain text of § 2 evinces the

Legislature’s intent to only revive claims that prescribed while La. R.S. § 9:2800.9 was

in effect, and that the Legislature never intended to revive ancient claims like Lousteau’s

that prescribed long before § 9:2800.9 was originally enacted in 1993.

Lousteau argues that the revival component of Act 322 revived all causes of

action that had prescribed prior to the passage of Act 322 regardless of when or under

what statute (or civil code article) the claim prescribed.

Under the general rules of statutory construction, the interpretation of any

statutory provision begins with the language of the statute itself. Billeaudeau v.

Opelousas Gen. Hosp. Auth., 218 So. 3d 513, 520 (La. 2016) (citing McGlothlin v.

Christus St. Patrick Hosp., 65 So. 3d 1218, 1227 (La. 2011)). When the provision is clear

and unambiguous and its application does not lead to absurd consequences, its language

must be given effect, and its provisions must be construed so as to give effect to the

purpose indicated by a fair interpretation of the language used. Billeaudeau, 218 So. 3d

at 520 (citing La. Civ. Code art. 9; La. R.S. § 1:4; Milbert v. Answering Bureau, Inc., 120

So.3d 678, 684 (La. 2013)). Unequivocal provisions are not subject to judicial

construction and should be applied by giving words their generally understood meaning.

Id. (citing La. Civ. Code art. 11; La. R.S. § 1:3; Snowton v. Sewerage and Water Bd., 6

So. 3d 164, 168 (La. 2009)).

The rules of statutory construction are designed to ascertain and enforce the

intent of the Legislature. Red Stick Studio Dev., LLC v. State ex rel. Dep't of Econ. Dev.,

56 So. 3d 181, 187 (La. 2011) (quoting M.J. Farms, Ltd. v. Exxon Mobil Corp., 998 So.

2d 16, 27 (La. 2008)). The paramount consideration in statutory interpretation is

ascertainment of the legislative intent and the reason or reasons which prompted the

Legislature to enact the law. Id.

One particularly helpful guide in ascertaining the intent of the legislature is the

legislative history of the statute in question and related legislation. Theriot v. Midland

Risk Ins. Co., 694 So. 2d 184, 186 (La. 1997) (citing Malone v. Cannon, 41 So. 2d 837

(La. 1949)). Laws are presumed to be passed with deliberation and with full knowledge

of all existing ones on the same subject. Id. (citing City of New Orleans v. Board of

Sup'rs., 43 So. 2d 237 (1949)).

There being no decisions from the Louisiana Supreme Court to inform the

Court’s Erie analysis regarding the textual argument raised by Holy Cross, the Court

starts with the language of § 2 itself. The Court is not persuaded that the references to §

9:2800.9 evince the intent of the Legislature to limit the revival component to claims

that prescribed no earlier than 1993 when § 9:2800.9 was enacted. The last sentence of

§ 2 clarifies the revival mechanism and it expressly applies to “any claim.” The last

sentence does not say “any claim that prescribed under prior versions of § 9:2800.9,”

and it does not provide a specific date. Instead, it suggests no limits.

The Court likewise cannot credit Holy Cross’s argument that the references in the

language of § 2 to an action “under R.S. 9:2800.9” or “authorized by R.S. 9:2800.9” was

intended to mean that § 2 only applies to causes of action that prescribed while the

statute was in effect and not to those causes of action that prescribed before its

enactment in 1993. Section 9:2800.9 does not confer substantive rights upon which to

sue; in other words, it does not create a cause of action. The substantive right sued upon

or cause of action being asserted is conferred elsewhere, such as in Article 2315. The

Court agrees with Lousteau’s suggestion that the “under” and “authorized by” language

used by the Legislature when referring to § 2800.9 is just a way to refer to claims

“against a person for sexual abuse of a minor.” Because the lookback window of § 2 is

not part of the statutory text of § 2800.9, the references to the statute constitute a

convenient way for the Legislature to identify the type of claims being revived; it was not

used to narrow the application of the revival component.

But even if the Court were to conclude that § 2 is ambiguous such that the

interpretations suggested by Holy Cross are plausible, the legislative history of the 2021

amendments does not support the conclusion that the Legislature intended to limit the

lookback window to claims that prescribed after 1993. From Act 322’s inception as

House Bill 492, it was clear that the Legislature intended to expand—not limit—access to

justice for victims of sexual abuse.

When Representative Hughes, HB 492’s main sponsor, introduced the bill in

committee, he provided a factual recitation in which he noted that the average age of

disclosure for victims of child sexual abuse was 52 years old, yet until recently the laws

of many states blocked civil lawsuit suits well before the victim turned 51. (Rec. Doc. 41-

2, Exhibit 2 Tr. of 5/3/21 Hearing for HB 492 at 6). As originally proposed, HB 492

would have increased the ten-year (post-majority) liberative prescriptive period to

thirty-five years. When questioned about this number in committee, Representative

Hughes explained that thirty-five years was proposed specifically because most victims

do not come forward until they are roughly 52 years-old on average (18 years at majority

+ 35 years prescription = 53 years old). (Id. at 16). An amendment to reduce the period

to twenty years failed. (Id. at 42). Many of the adult victims who provided testimony at

the committee hearing were of an age such that they would not be able to benefit from

the longer prescriptive period because their claims had already prescribed.

When HB 492 reached the Senate, those legislators were convinced that HB 492

did not go far enough. In the Senate Judiciary Committee, the prescriptive period was

eliminated altogether. (Rec. Doc. 41-3, Exhibit 3 Tr. of 6/10/21 Hearing for HB 492 at

7). In addition to making the claim imprescribable, § 2 with the lookback window had

been added and although it had been five years as originally proposed by Senator

Cameron Henry, it was shortened to three years. (Id.). When the bill returned to the

House, Representative Hughes in attempting to answer questions from other house

members about how the lookback window would work, confirmed that it was his

understanding that “any victim that is already prescribed out will now have a three year

period to come back, if they desire, to file suit . . . .” (Id. at 8). When questioned again

about how the lookback period would come into play, Representative Hughes explained:

So again, Representative, if – you know, we have several victims that have

already prescribed out, they’re well past 28 years old. So, if you’ve already

prescribed out, if this legislation was to pass and be signed into law, you

would have a three year period to go back and file a lawsuit . . . .”

Id. at 10.

Representative Hughes referred again to the problem with delayed disclosure

until mid-life because of mental and emotional issues. (Id. at 11). For claims that had

already prescribed, there would be no retroactive application of the abolished

prescriptive period—in other words, prescription was only eliminated altogether for

claims that had not yet prescribed. (Id.). But for those claims that were already time-

barred, the three-year lookback window would provide a discrete and finite time period

during which those victims with prescribed claims could file suit and after that, the

window would close and be done. (Id.).

Although the bill as amended did pass unanimously, at least one house member

noted the concern that by opening up claims from so long ago, evidence may be lost and

witnesses may not be available to defend a claim, especially since it is not implausible

that an accusation could be made against an innocent person. (Id. at 9).

Nothing whatsoever in the legislative history of HB 492 suggested that the

Legislature intended to limit the revival period to claims that prescribed after 1993 when

§ 9:2800.9 was enacted. During the discussion about HB 492, no one mentioned 1993

or even alluded to reviving only those claims that had prescribed under § 9:2800.9 as

opposed to an older prescriptive regime. As Lousteau points out, reading the revival

provision as limited only to claims that prescribed after 1993 would not benefit anyone

over the age of 46 years which would be a particularly absurd result when one considers

what the Legislature was trying to do and the discussion surrounding the average age

when victims generally come forward.

In support of its position, Holy Cross points to comments made by Senator

Henry, again the legislator who proposed the § 2 revival mechanism. When HB 492,

which would make claims for sexual abuse of a minor imprescribable, made it to the

State Senate, Senator Henry, noting that the amendment to § 9:2800.9 contained in HB

492 would remove the prescriptive period “for things moving forward,” wanted to make

the amendment “a little bit retroactive. So should a case that prescribe [sic], they – we

can go back a couple of years to make sure that those individuals um, get the care

they need . . . .” (Rec. Doc. 22-3, Exhibit B Tr. of 6/7/21 HB 492 Final Passage at 2:12-

16) (emphasis added).

The Court does not interpret Senator Henry’s comment such that “a little bit

retroactive” suggests limiting claims to those that prescribed under § 9:2800.9 after

1993. First of all, there could conceivably be very old claims that prescribed under §

9:2800.9, which would involve going back more than “a couple of years.” Second,

Senator Henry’s stated purpose in adding § 2’s revival provision, given that prescription

was being eliminated for all other victims prospectively, was to give those persons whose

claims had already prescribed under a less generous standard, a chance to pursue their

remedy in order to “get the care they need.” It is clear from the legislative history that

the sole limit that the Legislature intended to impose on revival was that the window

would stay open for a brief period of time, after which it would close again and any

previously barred claims that were not pursued would be forever barred. To allay

concerns, the five year period was reduced to three years, which left § 2 being just “a

little bit retroactive.”12

12 Given that the Legislature was driven by concern for victims who lost their claim to

prescription under more onerous prescriptive regimes, it is unclear how or whether the

Legislature considered the plight of victims who had filed facially-prescribed lawsuits in

the past and were unable to meet their burden as to contra non valentem. Presumably,

those victims would face a res judicata problem if they attempted to file a second lawsuit

relying on § 2’s revival mechanism. It would seem rather unfair that the revival

mechanism would benefit plaintiffs who for whatever reason did not pursue their rights

in the past and provide no help for those who tried and failed based on prescription.

But even assuming that § 2 of Act 322 is not read to limit the revival component

to claims that prescribed after § 9:2800.9 was enacted, Holy Cross argues that the 2021

amendments to § 9:2800.9 narrowed the scope of application for the statute such that

juridical entities like Holy Cross are no longer included in the scope of the statute. Holy

Cross bases this contention on the fact that § 9:2800.9 no longer incorporates the

definition of “abuse” provided in Children’s Code article 603. See note 10 above. That

definition includes “inadequate supervision” as a basis for liability. Holy Cross’s

contention is that since Children’s Code article 603 is now absent from the statute, the

basis of the holding in SS, supra, is no longer present, and a corporate entity like Holy

Cross cannot be the subject of § 9:2800.9 because even though a “person” can be a

natural or juridical person, only a natural person can sexually abuse a minor. Thus, Holy

Cross’s position is that the 2021 amendment to § 9:2800.9 narrowed the definition of

“sexual abuse of a minor,” and under this narrower definition of abuse, the revival

component cannot apply to an entity like Holy Cross.

Lousteau argues that the most likely reason that the reference to Children’s Code

article 603(1) was stricken was inadvertence because it just happened to be in the large

section of text which was being removed to make sexual abuse claims imprescribable.

See note 10 above. Lousteau argues that it is clear that the Legislature had no intent to

alter and certainly not to narrow the definition of “abuse” in any way so as to exclude an

action against potentially liable third parties. The Legislature understood that to truly

remedy the injustice of sexual abuse all responsible parties, not just the perpetrator,

must be brought to account for their actions (or inaction).

Interestingly, during this most recent 2022 regular session, the Legislature has

amended La. R.S.§ 9:2800.9 to restore the reference to Children’s Code article 603 in

the statute. Representative Hughes explained when speaking on behalf of House Bill

402 in the Committee on Civil Law and Procedure, that the deletion of Article 603 was

unintentional, yet unfortunately some courts had interpreted that as excluding

organizations and entities, which is not what was intended. (Rec. Doc. 49-1, Tr. 4/18/22

H.B. 402 at 2). As of this writing the bill has been passed by the House and the Senate,

and presumably will become law.

Although Representative Hughes’ comments about the original intent of Act 322

do in fact confirm Lousteau’s theory about the deletion of Article 603 being

unintentional, the Court must remain circumspect of post-enactment statements from

legislators when determining legislative intent.13 See Red Stick Studio Dev., LLC v.

State, Dep’t of Econ. Dev., 56 So. 3d 181, 189 (La. 2011) (citing E. Baton Rouge Par. Sch.

Bd. v. Foster, 851 So. 2d 985, 999 (La. 2003)).

From a purely textual standpoint, and completely ignoring for the nonce the

legislative history associated with the enactment of Act 322—a legislative history that

completely belies any suggestion that the Legislature intended to narrow La. R.S. §

9:2800.9 in any manner whatsoever—the Court does not agree that the removal of the

reference to Children’s Code article 603 compels the conclusion that entities like Holy

Cross escape the reach of § 9:2800.9 and the revival provision of § 2. Even though the

Supreme Court did point to the incorporation of Article 603 to support its holding in SS,

given that a “person” need not be a natural person, and that § 9:2800.9 uses the term

13 Representative Hughes also lamented when speaking at the 2022 committee hearing

that some courts had interpreted the revival mechanism to only apply to individuals

who were abused after 1993, which is contrary to what the Legislature intended, which

was to apply the lookback window retroactively for any victim of childhood sexual

abuse, regardless of when it occurred.

“person,” indicating an intent to include juridical entities within the reach of the statute,

the construction given to sexual abuse of a minor can conceivably be broad enough, even

without the reference to Article 603, to include the manner in which an entity as

opposed to a natural person may be responsible for committing such an act. In this vein,

Lousteau makes an excellent point in contrasting the language of Civil Code article

2315.7, which explicitly limits exemplary damages “only to the perpetrator of the

criminal sexual activity,” see note 9 above. But § 9:2800.9 does not use this explicit

language and therefore is arguably broader.

But when examining the legislative intent behind the amendments to § 9:2800.9,

which again at every juncture was amended to broaden the rights of victims not to

narrow them, it would be a particularly absurd result to conclude that an organization

whose fault, whether by affirmative acts or by omissions, contributed to the sexual abuse

of a child—and the Court is not suggesting that Holy Cross is at fault but that is the

allegation in this case—would be allowed to assert a time bar that has been not present

in the law since 1993 following amendments that were intended to broaden victims’

access to justice. Holy Cross’s interpretation of § 9:2800.9 would mean that the claim

against the organization would revert back to a prior prescriptive regime and not only

deny justice to victims, but continue to foist upon the tax payers and society as a whole

the costs for the injuries caused. This result would be contrary to the legislative intent

behind Act 322. The Legislature was clearly persuaded that the harm caused by the

perpetrators of sexual abuse and the organizations that harbored them should be borne

by them, shifting the burden from the victims and the taxpayers to the parties actually at

fault.

For similar reasons the Court rejects Holy Cross’s argument that the revival

provision only applies to the actual perpetrator of the sexual abuse because it uses the

term “party.” Holy Cross’s argument, that by employing the term “party” the revival

provision cannot affect claims against a separate juridical entity that only has indirect

liability, is unpersuasive. In fact, use of the term “party” without qualification is

certainly broader than saying any claim against “a natural person who was the

perpetrator of sexual abuse,” which is how Holy Cross would read § 2.

Certainly the post-enactment statements made in the 2022 legislative session in

conjunction with HB 402 completely support Lousteau’s position, but Holy Cross

stresses that by proposing HB 402 the lawmakers were essentially conceding that as

enacted in 2021 Act 322’s language does not apply to claims that had already prescribed

when § 9:2800.9 was enacted in 1993. The Court does not agree. It is clear that the

Legislature never intended to narrow anything about how prescription applied to claims

of childhood sexual abuse, and it did not intend to limit the revival provision to only

some claims that had already prescribed. Unfortunately, however, the Legislature

perhaps did not use the most precise language that would have foreclosed arguments

like those being made in this case. The Court is persuaded that what the Legislature

recognized in HB 402 is that it needed to be clearer so that textual arguments like the

ones being raised here would not be credited in the courts.

Laws in derogation of established rights and principles are to be strictly

construed. Theriot v. Midland Risk Ins. Co., 694 So. 2d 184, 186–87 (La. 1997). Where

there is any doubt about the intent or meaning of a law in derogation of long accepted

rules, the statute is given the effect that makes the least rather than the most change in

the existing body of the law. Id. (citing Touchard v. Williams, 617 So. 2d 885, 892 (La.

1993) (superseded by statute on other grounds)). But in the case of Act 322, there can be

no doubt but that the Legislature was driven by the belief that prior prescriptive statutes

that applied to childhood sexual abuse were manifestly unjust and inadequate. As HB

492 worked its way through the legislative process in 2021, the legislators found ways to

expand justice for survivors not to narrow them.

In sum, this Court’s Erie determination is that § 2 of Act 322 applies to

Lousteau’s claims against Holy Cross. Assuming that Lousteau’s claims against Holy

Cross did in fact prescribe in 1970, § 2 of Act 322 “revived” them for the duration of the

three-year lookback window. The question now becomes whether it is constitutionally

permissible to revive the prescribed claims and strip Holy Cross of its prescription

defense.

Is Act 322’s Revival Mechanism Unconstitutional?

Having concluded that Act 322, § 2 applies to Lousteau’s claims against Holy

Cross, the Court addresses the more difficult question of the constitutional validity of

Act 322 § 2’s revival provision.

Holy Cross argues that reviving Lousteau’s prescribed cause of action would

violate the Due Process Clause of the Louisiana State Constitution. The basis of this

argument is that once a claim has prescribed and liberative prescription has accrued, the

defendant has a vested right to assert the defense of prescription and the Legislature

cannot take that away. According to Holy Cross, the Louisiana Supreme Court’s

jurisprudence confirms that legislation cannot revive a cause of action once prescribed

consistent with the Louisiana Constitution. Holy Cross argues that this holds true

regardless of the clear legislative intent to do so.14

14 Holy Cross’s due process arguments are grounded on the Louisiana Constitution not

on the United States Constitution. As Lousteau points out, the United States Supreme

After raising arguments that Holy Cross’s constitutional challenge is premature15

and that the Court should abstain from deciding it,16 Lousteau argues that reviving a

Court long ago held that reviving a time-barred cause of action does not violate federal

due process. See Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 311 (1945) (citing

Campbell v. Holt, 115 U.S. 620 (1885)). Lousteau suggests that the same should hold

true under the Louisiana Constitution since the Louisiana and federal due process

clauses are nearly identical in language. This suggestion is untenable given the repeated

references in Louisiana’s jurisprudence—which deals with the civilian concept of

prescription not the common law concept of a statute of limitations—indicating that

reviving a prescribed claim is not permissible under Louisiana law.

The Court also points out that Holy Cross’s due process argument under the

Louisiana Constitution is a facial challenge. In other words, Holy Cross has not raised

the argument that its due process rights will be violated if it is forced to defend a claim

based on conduct that occurred over 50 years ago and that would have prescribed

decades ago under a prior prescriptive regime. See Picone v. Lyons, 601 So. 2d 1375, 378

(La. 1992) (citing La. Const. Art., I, § 2; U.S. Const. amend. XIV; Armstrong v. Manzo,

380 U.S. 545, 552 (1965)) (Cole, J., dissenting) (noting that requiring the defendant to

defend a cause of action that arose more than twelve years earlier could very well

deprive the defendant of a meaningful opportunity to be heard in a reasonable amount

of time).

15 Lousteau argues that Holy Cross’s constitutional challenges are premature because

Holy Cross did not comply with Federal Rule 5.1, which requires that a party filing a

motion to draw into question the constitutionality of a federal or state statute must

promptly file a notice in compliance with the rule and serve it on the proper attorney

general. Lousteau suggests that unless the Court intends to reject all of Holy Cross’s

constitutional arguments, it would be premature to hear them until Holy Cross provides

notice as required.

In response, Holy Cross points out that on March 25, 2022, it filed the required

Notice of Constitutional Challenge of Statute as required by Rule 5.1 (Rec. Doc. 42), and

served a copy on the Attorney General of Louisiana. Therefore, the prematurity

argument has been mooted.

Further, although the state attorney general has not filed anything in this matter,

Lousteau has provided a copy of the State’s memorandum of law offered in support of

the constitutionality of Act 322 that was filed in a similar state court lawsuit. (Rec. Doc.

41-1, Lousteau Exhibit 1). The Attorney General’s position is that reviving a prescribed

cause of action does not deprive a defendant of a vested right. The Attorney General’s

analysis is not persuasive.

16 Lousteau argues that this Court should abstain from adjudicating the constitutionality

of Act 322 under the Pullman abstention doctrine until such time as the state court

would have the opportunity to rule upon it.

The Pullman abstention doctrine, deriving from Railroad Commission of Texas

v. Pullman Co., 312 U.S. 496 (1941), holds that a federal court should abstain from

prescribed claim is not problematic because doing so does not impact a vested right.

Lousteau argues that the right to a prescription defense in the case of child sexual abuse

is especially non-vested and inchoate because contra non valentem applies so often to

suspend the commencement of prescription; therefore, a defendant cannot look upon

prescription as a vested right. In support of this contention Lousteau asserts that child

sexual abuse claims are “extraordinarily distinct,” given the long liberative prescriptive

period applicable to the tort (now imprescribable), and even the rare availability of

punitive damages. But even if a vested right is involved, Lousteau’s position is that the

Legislature has plenary power in Louisiana and can pass a law divesting vested rights so

long as it does not impair the obligation of contracts, and because the right to assert a

prescription defense is not a fundamental right, the Legislature can take it away.

Lousteau points out that the Louisiana Constitution of 1921 had a textual provision

exercising its jurisdiction “when difficult and unsettled questions of state law must be

resolved before a substantial federal constitutional question can be decided.”

Nationwide Mut. Ins. Co. v. Unauthorized Prac. of Law Comm., 283 F.3d 650, 652 (5th

Cir. 2002) (quoting Hawaii Housing Auth. V. Midkiff, 467 U.S. 229, 236 (1984)). “By

abstaining in such cases, federal courts will avoid both unnecessary adjudication of

federal questions and ‘needless friction with state policies.’” Id. at 652-53. For Pullman

abstention to apply, the case must involve 1) a federal constitutional challenge to state

action, and 2) an unclear issue of state law that, if resolved, would make it unnecessary

for the federal court to rule on the federal constitutional question. Id. at 653.

It is beyond dispute that the important and complex state law issues raised in the

motion to dismiss should be and ultimately will be decided definitively by the Louisiana

Supreme Court. But Lousteau has not identified any specific state court case that this

Court could abstain in deference to. Meanwhile, Lousteau filed his lawsuit in federal

court relying upon Act 322 which he knew would be subject to a constitutional challenge

under state law. For the most part, issues of federal law are minimal in this case. While

the Court agrees that the validity of Act 322’s revival provision is best suited for

determination by the Louisiana Supreme Court, Lousteau has not suggested that he is

willing to stay his case until the validity of § 2 makes it to the Louisiana Supreme Court

in someone else’s case. Rather he seeks to use abstention as a means of preventing Holy

Cross from litigating its prescription defense while he continues to pursue his claims,

which is not an appropriate use of the Pullman abstention doctrine.

prohibiting the divestment of vested rights but in the 1974 version it was removed. (Rec.

Doc. 41, Opposition at 31 n.13).

Laws enacted by the Legislature are presumed to be constitutional. Louisiana

Fed'n of Teachers v. State, 118 So. 3d 1033, 1065 n.37 (La. 2013). The party challenging

the validity of a legislative instrument has the burden of proving it to be

unconstitutional. Id. (citing State v. Citizen, 898 So. 2d 325, 334 (La. 2005)).

In Louisiana there is no prescription other than that established by legislation.

La. Civ. Code art. 3457. The Legislature may create, shorten, lengthen or abolish

prescriptive periods at its discretion. Picone v. Lyons, 601So. 2d 1375, 1377 (La. 1992). A

defendant has no vested interest in a particular period of prescription or limitation. Id.

at 1377 (citing Martinez v. California, 444 U.S. 277 (1980)). Thus, it is well-settled that

the Legislature can lengthen a prescriptive period to make an extant, unprescribed cause

of action viable for a longer period of time without violating the defendant’s rights, see,

e.g., Achord v. City of Baton Rouge, 489 So. 2d 1373, 1375 (La. App. 1st Cir. 1986), and it

can shorten a prescriptive period to provide less time for a plaintiff to seek legal redress

on a cause of action, so long as the change in the law allows a reasonable time for those

affected to assert their rights, see Lott v. Haley, 370 So. 2d 521, 523–24 (La. 1979)

(citing Cooper v. Lykes, 218 La. 251, 49 So.2d 3 (1950); State v. Recorder of Mortgages,

186 La. 661, 173 So. 139 (1937)). The reasoning supporting these well-settled principles

is that statutes of limitation are remedial in nature and as such are generally accorded

retroactive application. Lott, 370 So. 2d at 523-24 (citing State v. Alden Mills, 12 So.2d

204 (1943); Shreveport Long Leaf Lumber Co. v. Wilson, 197 So. 566 (1940); DeArmas

v. DeArmas, 3 La.Ann. 526 (1848)). However, statutes of limitation, like any other

procedural or remedial law, cannot consistently with state and federal constitutions

apply retroactively to disturb a person of a pre-existing right. Id. (citing Orleans Parish

School Board v. Pittman Construction Co., 261 La. 665, 260 So.2d 661 (1972)).

So for instance, a defendant may be just days away from the accrual of liberative

prescription when the Legislature can move the “finish line” farther away by adding

additional time to the prescriptive period or even make the claim imprescribable. Before

liberative prescription has accrued, the defendant has no right to have the prescriptive

period that was in effect when the cause of action arose continue to govern, regardless of

his expectations. When determining whether a legislative change to a prescriptive

period can operate retroactively (that is, apply to causes of action that accrued before

the change went into effect) within constitutional limits, the pivotal issue that permeates

the jurisprudence in this state is whether the change will disrupt a vested right.

According to the Louisiana Supreme Court, “the legislature has always enjoyed the

power to create new rights and abolish old ones as long as it does not interfere

with vested rights.”17 Morial v. Smith & Wesson Corp., 785 So. 2d 1, 19 (La. 2001)

17 The Court pauses here to note that Lousteau’s contention that the Legislature can do

whatever it wants to vested rights under the current version of the Louisiana

Constitution is meritless. This assertion runs contrary to the Louisiana Supreme Court’s

decision in Bourgeois v. A.P. Green Industries, Inc., 783 So. 2d 1251 (La. 2001), wherein

the Louisiana Supreme Court held that the Legislature could not, consistent with due

process guarantees, enact a law to divest claimants of a vested property right.

The Court also rejects Lousteau’s contention (and that of the Attorney General)

that a person can be legislatively deprived of a vested right so long as there is no

arbitrary or capricious government action involved. This case does not involve a

challenge to government action as was the situation in the case cited by Lousteau and

the Attorney General, Coxe Property Management & Leasing v. City of New Orleans,

294 So. 3d 1098, 1104 (La. App. 4th Cir. 2020). This case involves the facial

constitutional validity of a statute, not the permissibility of the conduct of government

actors. The Court notes that the Bourgeois court engaged in no discussion or analysis as

to whether arbitrary or capricious government conduct was involved where a legislative

act attempted to strip the plaintiff of his vested rights.

(citing Reeder v. North, 701 So.2d 1291, 1296 (La. 1997); Crier v. Whitecloud, 496 So.2d

305, 310 (La.1986)) (emphasis added).

The notion that it would be constitutionally permissible for the Legislature to

revive a prescribed cause of action has been unequivocally rejected by the Louisiana

Supreme Court on several occasions, albeit often in dicta. See Hall v. Hall, 516 So. 2d

119, 120 (La. 1987) (per curiam); Bouterie v. Crane, 616 So. 2d 657, 664 n.15 (La. 1993)

(citing Hall, 516 So. 2d at 119); Falgout v. Dealers Truck Equip. Co., 748 So. 2d 399,

407 (La. 1999).

Writing for the majority in Louisiana Health Service & Indemnity Co. v.

McNamara, Justice Dennis expounded upon the problem with revival. 561 So. 2d 712,

718 (La. 1990). He explained that the right to plead prescription in defense to a claim on

the obligation itself is “property that cannot be taken from [the defendant].” Id.

(emphasis added). Justice Dennis explained why the accrual of prescription is unlike

statutes of limitation at common law, which are merely procedural bars to the

enforcement of obligations. Id. Civilian prescriptive periods act to extinguish the civil

obligation to which they apply. Id. Importantly, the patrimony of the obligor is increased

when a claim prescribes.18 Id.

In Elevating Boats, Inc. v. St. Bernard Parish, 795 So. 2d 1153, 1164 (La. 2001),

18 In Louisiana Health Service & Indemnity Co. v. Tarver, 635 So. 2d 1090, 1098 (La.

1994), the Supreme Court clarified the use of the term “extinguish” in Justice Dennis’s

opinion. The term “extinguishment” is generally associated with peremption and not

prescription because while peremption operates to “extinguish” a right, La. Civ. Code

art. 3458, liberative prescription is a mode of barring actions as a result of inaction for a

period of time, La. Civ. Code art. 3447. Naghi v. Brener, 17 So. 3d 919, 923 (La. 2009)

(explaining the difference between peremption and prescription). Prescription does not

terminate the natural obligation. Id. (citing La. Civ. Code art. 1762(1)). Of course, some

Civil Code articles use the term “extinguish” in reference to prescription. See, .e.g., La.

Civ. Code arts. 3453, 1762(1).

overruled on other grounds by Anthony Crane Rental, L.P. v. Fruge, 859 So. 2d 631

(La. 2003), Chief Justice Calogero, writing for the majority explained why a cause of

action cannot be revived once liberative prospection has accrued:

[A]fter the prescriptive period on an obligation has run, an obligor gains the

right to plead prescription. In such a situation, that right to plead

prescription has already accrued and application of a lengthened

prescriptive period to revive the obligation, and effectively remove the right

to plead prescription, would “modify or suppress the effects of a right

already acquired.” Thus, we have noted that the Legislature is

without the authority to revive a prescribed claim.

Elevating Boats, 795 So. 2d at 1164 (citing 1 Marcel Planiol, Treatise on the Civil

Law, § 243 (La. State Law Inst. trans. 1959) (12th ed. 1939); Bouterie v. Crane, 616 So.2d

at 664 n. 15; Hall, 516 So.2d at 120 (La.1987) (per curiam) (emphasis both in original

and added).

The appellate courts of the state and at least one federal judge in this district have

consistently held that the Legislature could not revive a prescribed claim. Johnson v.

Roman Cath. Church for the Archdioceses of New Orleans, 844 So. 2d 65, 69 n.2 (La.

App. 1st Cir. 2003); City of New Orleans v. W.R. Grace & Co., No. 92-5, 1992 WL 125371

(E.D. La. May 21, 1992) (Duplantier, J.); Orleans Parish Sch. Bd. v. United States

Gypsum Co., 892 F. Supp. 794, 806-07 (E.D. La. 1995) (Duplantier, Jr.) (citing

numerous Louisiana appellate court decisions).

Based on the foregoing, it would seem to be a foregone conclusion that the

Legislature cannot revive a prescribed cause of action. But in 1994 the Louisiana

Supreme Court issued a plurality decision in Chance v. American Honda Motor Co., 635

So. 2d 177 (La. 1994), which has led some to question whether the Supreme Court has

begun to question its historically stalwart rejection of the Legislature’s ability to revive a

prescribed cause of action. Chance dealt with an amendment to Civil Code article 3492

which suspended the running of prescription against permanently disabled minors in

products liability actions. While the Chance court concluded that the amendment at

issue was not intended to revive prescribed claims, Chance is significant because instead

of just outright rejecting the validity of legislatively reviving a prescribed cause of action,

which is what had occurred repeatedly in the past, the majority stated:

Although prescriptive statutes are generally procedural in nature, the

revival of an already prescribed claim presents additional concerns. For

while the defendant does not acquire anything during the running of the

prescriptive period, once the time period has elapsed, the legislature grants

the defendant the right to plead the exception of prescription in order to

defeat the plaintiff’s claim. Because the defendant acquires the right

to plead the exception of prescription, a change in that right

constitutes a substantive change in the law as applied to the

defendant. Thus, were we to interpret the amendment at issue

to allow the revival of prescribed causes of action, the

substantive rights of the defendant would be materially

changed because he would be stripped of this acquired defense.

Guided by the principles established in article 6, we require, at

the very least, a clear and unequivocal expression of intent by

the legislature for such an “extreme exercise of legislative

power.”

Chance, 635 So. 2d at 178 (citing La. Civ. Code arts. 927 & 934; St. Paul Fire & Marine

Ins. Co. v. Smith, 609 So. 2d 809, 817 (La. 1992); Thomassie v. Savoie, 581 So. 2d 1031,

1034 (La. App. 1st Cir. 1991); Hopkins v. Lincoln Trust Co., 135 N.E. 267, 267 (N.Y.

1912)) (emphasis added).

Because the specific legislative act at issue in Chance did not contain a clear

expression of legislative intent to revive a prescribed claim, the Louisiana Supreme

Court declined to address the constitutional implications of reviving a prescribed claim.

The Supreme Court explained:

Having found the required intent absent here, we do not reach the issue of

whether the legislature has the authority to revive prescribed causes of

action. Central to this determination is whether the right to plead

the defense of prescription is a constitutionally vested right.

Whether the right is vested or not, the result reached in this case

would be the same . . . .

Chance, 635 So. 2d at 179 n.6 (emphasis added).

Justice Hall authored a concurring opinion in Chance, joined by Chief Justice

Calogero, and citing Planiol, Hall, Bouterie, and Louisiana Health Service & Indemnity,

supra, explained that he would “squarely hold that the right to plead [] prescription is a

vested right,” given the Supreme Court’s prior jurisprudence and the civilian teachings.

Id. at 180 (Hall, J., concurring).

Thus, while Chance did not hold that the Legislature could revive a prescribed

cause of action, and while it did not hold that the Legislature could revive a prescribed

claim so long as it provided a clear and unequivocal expression of its intent to do so, the

decision evinced a departure from the numerous prior cases where the Supreme Court

had unequivocally rejected the suggestion that the Legislature could revive a prescribed

claim. Interestingly, however, Chance confirmed that the validity of revival would turn

on whether the right to plead prescription is a vested right.

Even though Chance was a plurality decision and therefore was not a decision

supported by the majority of the justices, just three years later, in Cameron Parish

School Board v. Acands, Inc., 687 So. 2d 84 (La. 1997), the Louisiana Supreme Court

dealt with whether La. R.S. § 9:5644, relative to prescription of actions involving

asbestos abatement, operated to revive prescribed claims. The trial court had concluded

that it did, and declared the statute unconstitutional in violation of the defendant’s due

process rights because prescription had already accrued. On direct appeal, and adhering

to Chance, the Supreme Court concluded that the statute did not contain a clear and

unequivocal intent to revive an already prescribed cause of action, and absent this sort

of “clear and unequivocal intent,” the court found it unnecessary to address whether the

right to plead prescription is a vested right that the Legislature cannot take away once

accrued. Id. at 91. Cameron Parish was a four to three decision.

Like Chance, Cameron Parish did not hold that the Legislature could revive a

prescribed cause of action, and it did not hold that the Legislature could revive a

prescribed claim so long as it provided a clear and unequivocal expression of its intent to

do so. But in a clear departure with the past, neither decision flatly rejected the

possibility of revival. What Chance and Cameron Parish demonstrate is that the

question whether the Legislature can revive a prescribed cause of action within

constitutional limitations is now open to debate because the Supreme Court seems to

have moved away from its previously implacable position that reviving a prescribed

cause of action is ipso facto constitutionally impermissible. Chance and Cameron

Parish did not, however, eschew the principle that the Legislature cannot deprive a

party of a vested right when it amends laws governing prescriptive periods. What

Chance and Cameron Parish left open, is whether the Supreme Court continues to view

accrued prescription as a vested right, and if it is a vested right, does the Supreme Court

continue to believe that the Legislature cannot take it away, or are there circumstances

when the deprivation may be permissible.

To be sure, no judicial body is better suited to resolve these questions than the

Louisiana Supreme Court. Unfortunately, a federal district court cannot certify a

question of law to the Louisiana Supreme Court. See La. S. Ct. R. XII (limiting

certification to the United States Supreme Court and the federal Circuit Courts of

Appeal). So this Court is left to make an Erie guess and determine, in its best judgment,

how the State Supreme Court would resolve the issue if presented with the same case.

The Court has not found any state appellate court decisions that help guide the Erie

analysis.19

This Court’s Erie determination is that reviving a prescribed cause of action, and

depriving a defendant of his right to plead prescription as a defense, would disrupt a

vested right, and therefore is not constitutionally permissible under Louisiana law. The

determination turns on the nature of prescription under a civil law system and under

Louisiana law in particular, which is why federal standards and any authorities from

common law jurisdictions are not particularly helpful.

The Civil Code defines liberative prescription as a mode of barring actions as a

result of inaction for a period of time, La. Civ. Code art. 3447. Thus, unlike peremption,

which operates to destroy or extinguish the cause of action itself, liberative prescription

merely prevents the enforcement of a right by action. Naghi, 17 So. 3d at 923 (citing

Pounds v. Schori, 377 So. 2d 1195 (La. 1979); Hebert v. Doctors Mem. Hosp., 486 So. 2d

717, 723 (La. 1986)). Because prescription can be renounced, interrupted, or suspended,

it is an “inchoate right,” especially when compared to peremption. Id. at 923 (quoting

Hebert, 486 So. 2d at 723). Prescription is also subject to the doctrine of contra non

valentem which contributes to its inchoate nature. Id. But once liberative prescription

accrues, prescription loses its inchoate nature because only the defendant can renounce

prescription, and interruption and suspension no longer apply to a prescribed claim.

19 The Doe v. Jesuit High School, 331 So. 3d 426 (La. App. 4th Cir. 2021), decision cited

by Lousteau is not on point because it addresses only the procedural aspects of La. R.S. §

9:2800.9. In Barras v. O’Rourke, 287 So. 3d 817 (La. App. 3d Cir. 2019), the court of

appeal ostensibly concluded that the Legislature could revive a prescribed cause of

action but that case involved an acknowledgement that was alleged to be an absolute

nullity, which pursuant to Civil Code article 2032 does not prescribe. Thus, Barras

involved no discussion of whether accrued liberative prescription constitutes a vested

right.

Contra non valentem likewise does not apply to a prescribed claim because it only

applies to delay the commencement of prescription, not the running of prescription. In

other words, unaccrued prescription may be inchoate in nature but accrued prescription

is not.

Further, even though the accrual of liberative prescription does not extinguish

the cause of action in the same manner as peremption, by operation of law it alters the

nature of the plaintiff’s cause of action. Once liberative prescription accrues, the civil

obligation that once existed is replaced by a natural obligation. La. Civ. Code art.

1762(1). A natural obligation arises from circumstances in which the law implies a

particular moral duty to render a performance. La. Civ. Code art. 1760. But a natural

obligation is not enforceable by judicial action. La. Civ. Code art. 1761. Thus, as Justice

Dennis observed in Louisiana Health Service & Indemnity Co. v. McNamara, 561 So.

2d at 718, the patrimony of the defendant-obligor is increased when a claim prescribes.

The value of the defense of prescription is implicitly recognized by Civil Code article

3453, which allows creditors and other persons having an interest in “ the extinction of a

claim [] by prescription” to raise the defense, even if the person in whose favor

prescription has accrued renounces or fails to plead it.20

Thus, the right to assert a liberative prescription as a defense is more than just a

mere procedural bar preventing the enforcement of a right. Like property, the defense of

prescription has value to a defendant because once liberative prescription accrues

20 In the jurisprudence the term “extinguish” has come to be used solely with respect to

peremption. After all, Civil Code article 3458 pertaining to peremption uses the term

where as Civil Code article 3447 pertaining to prescription does not. But Civil Code

articles 3453 and 1762(1) use the term “extinguish” in reference to the effect of

prescription.

leaving only a natural obligation, no unilateral conduct by the plaintiff can disrupt the

defense to render the obligation enforceable. Only the defendant can choose to either

renounce the defense, decline to assert it, or to voluntarily perform the natural

obligation that remains. And aside from the increase in patrimony attributable to the

civil obligation itself being unenforceable, once liberative prescription accrues a

defendant is no longer faced with expending his resources in defending the claim, which

constitutes an additional increase in his patrimony. When a defendant pleads liberative

prescription in defense to a prescribed claim, a judge has no discretion to compel the

defendant to perform a natural obligation even if the equities of the case would seem to

demand it. Once liberative prescription accrues, the right to plead the defense is

“absolute, complete, unconditional, and independent of a contingency,” and it is

therefore vested. See In re American Waste & Pollution Control Co., 597 So. 2d 1125,

1129–30 (La. App. 1st Cir. 1992) (citing Voelkel v. Harrison, 572 So.2d 724, 726 (La.

App. 4th Cir. 1990) (defining a vested right)).

In sum, this Court’s Erie determination is that the defendant’s right to plead

prescription once liberative prescription has accrued constitutes a vested property right

under Louisiana law. Therefore, reviving a prescribed cause of action, and depriving a

defendant of his right to plead prescription as a defense, would disrupt a vested right,

and therefore does not comport with due process under Louisiana law. Holy Cross has

met its burden of establishing that the revival provision of § 2 of Act 322 is not valid.21

21 The Court found § 6.4 of the Louisiana Civil Law Treatise, Retroactivity of

Legislation—A Brief Overview (Dec. 2021 update), by P. Raymond Lamonica and Jerry

G. Jones, and the student comment authored by Emily M. Gauthier, Let Louisiana’s

Bastards Beat the Clock: It’s Time to Amend Article 197, 80 La. L. Rev. 1437 (Summer

2020), to be very helpful and insightful when researching this case.

Finally, although the point is now moot, the Court finds no merit to Holy Cross’s

contention that § 2 of Act 322 violates the constitutional prohibition on bills of attainder

found in both the Louisiana Constitution, Article 1 § 23, and the United States

Constitution, article I § 9, cl. 3. A bill of attainder is a law that legislatively determines

guilt and inflicts punishment upon identifiable individuals without providing the

protections of a judicial trial. Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 468-

69 (1977) (citing United States v. Brown, 381 U.S. 437, 445 (1965); United States v.

Lovett, 328 U.S. 303, 315-16 (1946); Ex parte Garland, 18 L. Ed. 366 (1867); Cummings

v. Missouri, 18 L. Ed. 356 (1867)). Neither La. R.S. § 9:2800.9 nor § of Act 322

legislatively determine guilt, identify any individuals, or deprive a defendant of a judicial

trial.22

Based on the foregoing, Holy Cross’s motion to dismiss will be granted insofar as

Holy Cross contends that Act 322 did not revive Lousteau’s prescribed claims. But

Lousteau has argued in the alternative that regardless of the fate of § 2 of Act 322, the

doctrine of contra non valentem should apply to his case to delay the running of

prescription in such a manner so as to render his complaint timely. As noted above the

Court has not considered whether contra non valentem, which was not pleaded in the

Original Complaint, applies in Lousteau’s case. Although the magistrate judge denied

Lousteau’s motion for leave to amend his complaint, she noted that an amendment to

assert contra non valentem would not be futile.23 (Rec Doc. 50, Order at 6). The Court

22 It is not necessary for the Court to conduct a separate analysis under state law. The

Court notes that the state attorney general applies federal law to address both

constitutional provisions. (Rec. Doc. 41-1, Lousteau Exhibit 1 at 9-10).

23 Lousteau did not appeal Magistrate Judge Roby’s ruling denying his motion for leave

to amend so while the Court will allow Lousteau to amend his pleadings, he may do so

solely to allege contra non valentem.

will allow Lousteau to file his amended complaint to allege facts in support of his

contention that contra non valentem applies to his case in such a way that his case

against Holy Cross should not be considered prescribed on its face. Lousteau must

amend his pleadings within 14 days from entry of this Order. Holy Cross may file its

motion to dismiss within the normal delays. If Lousteau does not amend his complaint

within the deadline given, the Court will issue a final judgment dismissing the case with

prejudice as prescribed, and Lousteau can proceed to the Court of Appeal. The discovery

stay remains in effect.

Accordingly, and for the foregoing reasons;

IT IS ORDERED that the Motion to Dismiss (Rec. Doc. 22) filed by

Defendants, Congregation of Holy Cross, Moreau Province, Inc. and Holy Cross College,

Inc. is GRANTED as explained above.

June 7, 2022 C | C t

PN

U (oes ener JUDGE

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