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

Decision Date07 June 2022
Docket NumberCivil Action 21-1457
CourtU.S. District Court — Eastern District of Louisiana



Civil Action No. 21-1457

United States District Court, E.D. Louisiana

June 7, 2022

SECTION: "A" (4)



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.


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


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.


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.



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


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. U.S. 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


690, 696 (5th Cir. 2005)). Legal conclusions must be supported by factual allegations. Id. (quoting Iqbal, 129 S.Ct. at 1950).


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]


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


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)...

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