     Case: 17-30346      Document: 00514294194         Page: 1    Date Filed: 01/04/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit

                                                                                     FILED
                                    No. 17-30346                               January 4, 2018
                                  Summary Calendar                              Lyle W. Cayce
                                                                                     Clerk

ESSIE LEMIEUX, widow of Raymond J. Lemieux, Sr.; RAYMOND J.
LEMIEUX, JR., surviving child of Raymond J. Lemieux, Sr.; DEHON
LEMIEUX CALLIER, surviving child of Raymond J. Lemieux, Sr.,

              Plaintiffs–Appellants,

v.

AMERICAN OPTICAL CORPORATION,

              Defendant–Appellee.



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:16-CV-16508


Before REAVLEY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiffs–Appellants Essie Lemieux, Raymond J. Lemieux, Jr., and
Dehon Lemieux Callier appeal the district court’s dismissal of their claims
against Defendant–Appellee American Optical Corporation (“American
Optical”). For the reasons set forth below, we AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
     Case: 17-30346        Document: 00514294194          Page: 2     Date Filed: 01/04/2018



                                        No. 17-30346
                                   I. BACKGROUND 1
       Plaintiffs are the widow and surviving children of Raymond J. Lemieux,
Sr. (“Raymond Sr.”). From 1956 to 1970, Raymond Sr. worked for the Johns-
Manville Corporation in Marrero, Louisiana. During his employment,
Raymond Sr. wore a respirator designed by American Optical and was exposed
to asbestos. As a result of this exposure, Raymond Sr. developed asbestos-
related lung cancer, which eventually caused his death in 2015.
       Prior to his death, Raymond Sr. filed suit against American Optical
stemming from his use of American Optical’s respirator. Represented by his
attorney, Raymond Sr. entered into settlement negotiations with American
Optical. Plaintiffs were unaware of these discussions, but as a condition of
Raymond Sr.’s settlement with American Optical, they were eventually asked
to sign a release of any potential future claims they might have. A settlement
agreement containing the release of these claims was executed by Raymond
Sr., Plaintiffs, and American Optical on February 10, 2011 (the “Settlement
Agreement”). 2 The release stated that Raymond Sr. and Plaintiffs:
       [D]o hereby relieve, release and forever discharge American
       Optical Corporation . . . of and from any and all claims, demands,
       actions, causes of action, losses, damages or suits whatsoever,
       regardless of the kind or nature thereof, including claims for
       wrongful death damages that may arise in the future, upon the


       1  The facts of this case are largely taken from Plaintiffs’ complaint. Because this case
was resolved on a motion to dismiss, we accept them as true for purposes of this opinion. See
Hernandez v. Mesa, 137 S. Ct. 2003, 2005 (2017).
        2 Generally, courts only consider the pleadings on a motion to dismiss for failure to

state a claim. See Fed. R. Civ. P. 12(d). However, documents attached “to a motion to dismiss
are considered part of the pleadings if they are referred to in the plaintiff’s complaint and are
central to her claim.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir.
2000) (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.
1993)). As a central component of their nullity claim, Plaintiffs reference the Settlement
Agreement in their complaint. In addition, American Optical attached the Settlement
Agreement to its motion to dismiss. Accordingly, the Settlement Agreement is part of the
pleadings and may be considered in determining whether Plaintiffs have stated a claim. See
Collins, 224 F.3d at 499.
                                               2
    Case: 17-30346     Document: 00514294194      Page: 3   Date Filed: 01/04/2018



                                  No. 17-30346
      death of [Raymond Sr.], . . . arising out of, caused by or in any way
      associated with (1) any product manufactured, sold or distributed
      by [American Optical] . . . ; (2) any alleged defect in design or
      manufacture of any such product; (3) any alleged representation,
      misrepresentation or failure to warn on the part of [American
      Optical] pertaining in any way to any such product; and
      (4) [Raymond Sr.’s] inhalation of or exposure to asbestos, silica or
      other harmful substances, at any time.
The Settlement Agreement also specified that:
      [Plaintiffs] Essie Lemieux, Dehon Caillier and Raymond Lemieux,
      Jr. . . . specifically appear to relieve, release and discharge
      [American Optical] of and from any and all wrongful death claims
      or causes of action and damages . . . that they may have in the
      future upon the death of . . . [Raymond Sr.] against [American
      Optical] . . . arising out of or in any way associated with the acts or
      omissions, diseases or conditions, covered by this release and
      described herein. [Plaintiffs] acknowledge that they have received
      good and valuable consideration for their release of their possible
      future wrongful death claims as stated herein. [Plaintiffs] further
      acknowledge that, by their execution of this agreement, they shall
      have no right to sue or bring any action of any kind against
      [American Optical] arising out of or based upon the death of
      [Raymond Sr.] or arising out of or in any way associated with the
      acts or omissions, diseases or conditions covered by this release.
Each of the Plaintiffs individually initialed each page of the Settlement
Agreement and signed sworn, notarized acknowledgements that “[he/she]
executed [the Settlement Agreement] as [his/her] own free act and deed . . .
after having read [the Settlement Agreement] in full, or having had [the
Settlement Agreement] read to [him/her] in full, and having discussed the
terms thereof with [his/her] attorney.”
      Nearly one year after Raymond Sr.’s death and over five years after
executing the Settlement Agreement, Plaintiffs filed suit against American
Optical in the United States District Court for the Eastern District of




                                          3
     Case: 17-30346        Document: 00514294194          Page: 4     Date Filed: 01/04/2018



                                        No. 17-30346
Louisiana. 3 They alleged that the respirator used by Raymond Sr. was:
(1) defectively designed and manufactured, and (2) deceptively marketed and
sold in violation of Louisiana and federal law. Plaintiffs sought attorney’s fees
and damages for funeral and burial expenses, loss of consortium, loss of love
and affection, loss of support, loss of services, and mental pain and suffering.
In bringing their claims, Plaintiffs raised the unenforceability of the
Settlement Agreement asserting that it was null and void under Louisiana law
and sought a declaration holding as much.
       American Optical filed a Rule 12(b)(6) motion to dismiss Plaintiffs’
claims on the basis that (1) the Settlement Agreement plainly barred the
claims, (2) Plaintiffs’ claim that the Settlement Agreement is relatively null
was time-barred because more than five years have passed since it was
executed, and (3) even if Plaintiffs could challenge the Settlement Agreement,
Plaintiffs’ complaint failed to allege sufficient facts to set forth any plausible
claim of relative nullity. The district court agreed and granted American
Optical’s motion. The district court held that Plaintiffs’ claim that the
Settlement Agreement is relatively null is barred by Louisiana’s five-year
prescription period for such claims. See La. Civ. Code. Ann. art. 2032. Even if
the claim was not barred, the court alternatively held that Plaintiffs’ consent



       3  Plaintiffs invoked both diversity jurisdiction pursuant to 28 U.S.C. § 1332 and
federal question jurisdiction pursuant to 28 U.S.C. § 1331. Plaintiffs are citizens of Louisiana
and seek over $75,000 in damages. Plaintiffs allege that American Optical is a foreign
corporation. The record, however, does not indicate what state American Optical is
incorporated in or where its principal place of business is. In any event, the district court had
federal question jurisdiction over the suit stemming from Plaintiffs’ federal false advertising
claim. Plaintiffs’ related state law claims stemming from Raymond Sr.’s alleged use of
American Optical’s respirator are encompassed by the district court’s supplemental
jurisdiction. See 28 U.S.C. § 1367(a); Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir. 2008)
(“The question under section 1367(a) is whether the supplemental claims are so related to
the original claims that they form part of the same case or controversy, or in other words,
that they ‘derive from a common nucleus of operative fact.’” (citation omitted)). Thus, we are
satisfied that the district court had subject matter jurisdiction over Plaintiff’s suit.
                                               4
     Case: 17-30346       Document: 00514294194         Page: 5    Date Filed: 01/04/2018



                                      No. 17-30346
to the Settlement Agreement was not vitiated by error, fraud, or duress. Thus,
the district court dismissed Plaintiffs’ claims against American Optical with
prejudice. Plaintiffs timely appealed. 4
                                   II. DISCUSSION
A. Standard of Review
       Federal Rule of Civil Procedure 12(b)(6) permits a party to move for
dismissal for a “failure to state a claim upon which relief can be granted.” We
review de novo a district court’s dismissal pursuant to Rule 12(b)(6).
Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 140 (5th Cir.
2007). In doing so, we accept “all well-pleaded facts as true, viewing in the light
most favorable to the plaintiff.” Martin K. Eby Constr. Co. v. Dall. Area Rapid
Transit, 369 F.3d 464, 467 (5th Cir. 2004). To survive a Rule 12(b)(6) motion,
a party must plead “enough facts to state a claim to relief that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007). “A claim has
facial plausibility when the pleaded factual content allows the court to draw
the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S.
at 556).
B.     Louisiana’s Five-Year Prescription Period
       Under Louisiana law, a suit seeking “annulment of a relatively null
contract must be brought within five years from the time the ground for nullity
either ceased, as in the case of incapacity or duress, or was discovered, as in
the case of error or fraud.” La. Civ. Code. Ann. art. 2032. Prescription statutes
“are strictly construed against prescription and in favor of the obligation



       4  This Court initially entered an order dismissing Plaintiffs’ appeal for lack of
appellate jurisdiction because the district court had not entered a certification required by
Federal Rule of Civil Procedure 54(b) and 28 U.S.C. § 1292(b). We subsequently granted
Plaintiffs’ motion for reconsideration. Thus, this appeal is now properly before this Court.
                                             5
    Case: 17-30346     Document: 00514294194      Page: 6   Date Filed: 01/04/2018



                                  No. 17-30346
sought to be extinguished.” Carter v. Haygood, 892 So. 2d 1261, 1268 (La.
2005). However, “[t]o soften the occasional harshness of prescriptive statutes,”
Louisiana courts recognize “a jurisprudential exception to prescription: contra
non valentem non currit praescriptio, which means that prescription does not
run against a person who could not bring his suit.” Id.; see also Corsey v. State,
Through Dep’t of Corr., 375 So. 2d 1319, 1321 (La. 1979) (“[P]rescription does
not run against a party who is unable to act.”). We have observed that
Louisiana courts “strictly construe” the contra non valentem doctrine and have
“generally given [it] a narrow interpretation.” Crane v. Childers, 655 F. App’x
203, 204–05 (5th Cir. 2016) (unpublished) (citations omitted); see also Doe v.
Ainsworth, 540 So. 2d 425, 426 (La. Ct. App. 1989) (noting that the doctrine is
“rarely accepted”).
      The contra non valentem doctrine is recognized “where the cause of
action is not known or reasonably knowable by the plaintiff, even though this
ignorance is not induced by the defendant.” Carter, 892 So. 2d at 1268 (citing
Palquemines Parish Comm’n Council v. Delta Dev. Co., Inc., 502 So. 2d 1034,
1054–55 (La. 1987)). Under this exception, “prescription commences on the
date the injured party discovers or should have discovered facts upon which his
cause of action is based.” Sepulvado v. Procell, 99 So. 3d 1129, 1135 (La. Ct.
App. 2012). However, “[t]his principle will not except the plaintiff’s claim from
the running of prescription if his ignorance is attributable to his own
willfulness or neglect; that is, a plaintiff will be deemed to know what he could
by reasonable diligence have learned.” Corsey, 375 So. 2d at 1322. Ultimately,
in determining when prescription commences under this exception, courts are
to focus on the reasonableness of plaintiff’s action or inaction. Sepulvado, 99
So. 3d at 1135 (citation omitted); see also Beth Israel v. Barley, Inc., 579 So. 2d
1066, 1073 (La. Ct. App. 1991).


                                        6
     Case: 17-30346    Document: 00514294194     Page: 7   Date Filed: 01/04/2018



                                  No. 17-30346
C.      Plaintiffs’ Nullity Claim Is Prescribed
        As to the Settlement Agreement, Plaintiffs only allege relative nullity
and do not dispute that absent the Settlement Agreement being declared null,
their claims against American Optical would otherwise be barred by its plain
terms. Plaintiffs, however, contend that the district court erroneously granted
Defendant’s motion to dismiss on grounds of prescription because it failed to
accept as true their allegations that they failed to discover their nullity cause
of action due to misrepresentation and fraud. Specifically, Plaintiffs alleged
that they failed to discover their cause of action because: (1) Raymond Sr.’s
attorney falsely advised Plaintiffs that they were required to sign the release
solely to assist Raymond Sr. with receiving a settlement and Plaintiffs relied
on that advice; (2) American Optical misrepresented in the release that
Raymond Sr.’s attorney was acting as Plaintiffs’ attorney; and (3) Raymond
Sr.’s lawyer remained silent regarding his ethical duty to disclose his conflict
of interest and advise Plaintiffs that they ought to retain their own counsel.
Thus, as a result of these actions, according to Plaintiffs, they could not have
discovered the bases for their nullity claim until after Raymond Sr.’s death in
2015.
        All three bases on which Plaintiffs assert nullity relate to the
circumstances surrounding Plaintiffs’ execution of the Settlement Agreement.
Even accepting Plaintiffs’ allegations as true, these bases were readily
apparent or reasonably ascertainable at the time the agreement was signed or
in the five years that followed. With reasonable diligence, Plaintiffs could have
recognized their misunderstanding of the terms of the Settlement Agreement,
consulted an independent attorney, or questioned Raymond Sr.’s attorney or
American Optical about the terms of their release. Thus, as the district court
correctly noted, Plaintiffs’ failure to discover the bases for their nullity claim


                                        7
     Case: 17-30346       Document: 00514294194          Page: 8     Date Filed: 01/04/2018



                                       No. 17-30346
can only be attributable to their own willfulness or neglect. See Corsey, 375 So.
2d at 1322.
       While Plaintiffs seek to reset the prescriptive clock to the date of
Raymond Sr.’s death, Plaintiffs fail to assert how, if at all, Raymond Sr.’s death
changed Plaintiffs’ understanding of the Settlement Agreement or their ability
to assert a nullity cause of action within the five-year prescriptive period. In
fact, it is difficult to see the relevance of Raymond Sr.’s death to Plaintiffs’
alleged discovery of their nullity cause of action at all. Accordingly, because the
bases upon which Plaintiffs’ nullity claim is based were readily discoverable at
the time Plaintiffs executed the Settlement Agreement, the prescriptive period
commenced on the date Plaintiffs entered into the agreement. See Sepulvado,
99 So. 3d at 1135. By November 11, 2016, when Plaintiffs filed suit seeking to
nullify the Settlement Agreement, the five-year prescriptive period had run.
See La. Civil Code. Ann. art. 2031. Therefore, the district court properly
dismissed Plaintiffs’ suit as time barred under Louisiana law. 5




       5 Plaintiffs also assert that American Optical “failed to raise contractual negligence as
an affirmative defense.” However, Plaintiffs misunderstand the basis for American Optical’s
motion to dismiss and the district court’s analysis. Reflecting the affirmative defense of
prescription American Optical properly raised in its answer, see Fed. R. Civ. P. 8(b)(1)(A),
American Optical appropriately moved to dismiss on the basis that Plaintiffs’ nullity claim
was prescribed pursuant to Rule 12(b)(6). See Belanger v. Geico v. Gen. Ins. Co., 623 F. App’x
684, 685 (5th Cir. 2015) (unpublished) (recognizing that a Rule 12(b)(6) motion is an
appropriate vehicle on which to seek dismissal of a claim barred by a prescription statute);
Tigert v. Am. Airlines, No. 10–30069, 2010 WL 3155238, at *2–4 (5th Cir. Aug. 10, 2010)
(unpublished) (same). Analyzing whether Plaintiffs’ claim was time barred, the district court,
in accordance with Louisiana’s prescription law, considered the reasonableness of Plaintiffs’
actions or inaction. See Sepulvado, 99 So. 3d at 1135 (“Under Louisiana law, the
reasonableness of the plaintiff's action or inaction is a fundamental precept that the court
must focus on in determining when prescription commences.”). Thus, contractual negligence
was not before the district court. Rather, the district court properly analyzed whether
Plaintiffs’ nullity claim was barred by the prescription statute or otherwise tolled by the
contra non valentem doctrine.
                                               8
    Case: 17-30346    Document: 00514294194    Page: 9   Date Filed: 01/04/2018



                                No. 17-30346
                            III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s dismissal of
Plaintiffs’ claims against American Optical.




                                      9
