      Case: 12-30429          Document: 00512155875              Page: 1      Date Filed: 02/26/2013




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

                                                                                        FILED
                                                                                      February 26, 2013

                                            No. 12-30429                               Lyle W. Cayce
                                                                                            Clerk

MCKNIGHT MCGEE; RUFUS MCGEE; GLADYS MCGEE,

                                         Plaintiffs - Appellants
v.

STATE FARM FIRE & CASUALTY CO.,

                                          Defendant - Appellee
-----------------------------------------------------------------------------------
Cons w/ 12-30501

OTIS SARTIN; CYNTHIA M. SARTIN,

                                         Plaintiffs - Appellants
v.

STATE FARM FIRE & CASUALTY COMPANY,

                            Defendant - Appellee
________________________________________
Cons w/ 12-30502

CATHERINE WILLIAMS,

                                         Plaintiff - Appellant
v.

STATE FARM FIRE & CASUALTY COMPANY,

                                         Defendant - Appellee
     Case: 12-30429   Document: 00512155875   Page: 2   Date Filed: 02/26/2013




                               No. 12-30429
                           cons. w/ No. 12-30501
                               No. 12-30502
                               No. 12-30616
                               No. 12-30621
                               No. 12-30622
                               No. 12-30624

_______________________________________
Cons w/ 12-30616

LEAH JOURDAIN; JOSEPH JOURDAIN,

                             Plaintiffs - Appellants
v.

STATE FARM FIRE & CASUALTY COMPANY,

                            Defendant - Appellee
_______________________________________
Cons w/ 12-30621

MORRIS JORDAN; TERRI JORDAN,

                             Plaintiffs - Appellants
v.

STATE FARM FIRE & CASUALTY CO.,

                            Defendant - Appellee
_______________________________________




                                     2
     Case: 12-30429   Document: 00512155875   Page: 3   Date Filed: 02/26/2013




                               No. 12-30429
                           cons. w/ No. 12-30501
                               No. 12-30502
                               No. 12-30616
                               No. 12-30621
                               No. 12-30622
                               No. 12-30624

Cons w/ 12-30622

TRAVELLA MCINTOSH,

                             Plaintiff - Appellant
v.

STATE FARM FIRE & CASUALTY COMPANY,

                            Defendant - Appellee
_______________________________________
Cons w/ 12-30624

ALVIN JACKSON; TEENER JACKSON,

                             Plaintiffs - Appellants
v.

STATE FARM FIRE & CASUALTY COMPANY,

                             Defendant - Appellee



                Appeals from the United States District Court
                    for the Eastern District of Louisiana
                          USDC No. 2:11-CV-1686


Before JONES, DENNIS, and HIGGINSON, Circuit Judges.



                                     3
     Case: 12-30429       Document: 00512155875         Page: 4     Date Filed: 02/26/2013




                                      No. 12-30429
                                  cons. w/ No. 12-30501
                                      No. 12-30502
                                      No. 12-30616
                                      No. 12-30621
                                      No. 12-30622
                                      No. 12-30624

PER CURIAM:*
           In these seven consolidated cases, McKnight McGee and other property
owners in Orleans Parish (“Appellants”) appeal the FED. R. CIV. P. 12(c)
dismissals of their claims seeking damages caused by Hurricane Katrina.
Because Appellants’ claims are untimely, we affirm.
                                              I.
           On September 3, 2010, Appellants filed a mass joinder suit seeking
payments from their homeowner insurer, State Farm Fire & Casualty Company
(“State Farm”), for wind damage caused by Hurricane Katrina. The district
court granted State Farm’s motion to sever the mass joinder and ordered
Appellants’ counsel to file individual amended complaints no later than July 19,
2011. Appellants filed their individual complaints on July 15, 2011, each
identical to the mass joinder complaint. State Farm moved for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c), noting that the
prescriptive period for filing Hurricane Katrina claims had expired more than
three years earlier on September 1, 2007. After concluding that Appellants had
not met their burden of pleading facts establishing suspension of prescription
under Louisiana law, the district court dismissed the claims with prejudice.



       *
         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.

                                              4
     Case: 12-30429       Document: 00512155875         Page: 5    Date Filed: 02/26/2013




                                     No. 12-30429
                                 cons. w/ No. 12-30501
                                     No. 12-30502
                                     No. 12-30616
                                     No. 12-30621
                                     No. 12-30622
                                     No. 12-30624

                                             II.
           We review a district court’s order granting a Rule 12(c) motion for
judgment on the pleadings de novo, using the same standards applied to a
Rule 12(b)(6) motion to dismiss. Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir.
2004).
           Under Louisiana law, all claims filed against an insurer related to losses
from Hurricane Katrina had to be filed by September 1, 2007. 2006 La. Acts
802. Appellants filed suit on September 7, 2010, more than three years after the
prescriptive deadline. Appellants’ claims are facially prescribed, and Appellants
bear the burden of proving suspension of the prescriptive period. Taranto v. La.
Citizens Prop. Ins. Corp., 62 So. 3d 721, 726 (La. 2011).1
           Appellants assert suspension under Louisiana Code of Civil Procedure
Art. 596, which provides that “prescription on the claims arising out of the
transactions or occurrences described in a petition brought on behalf of a class
is suspended on the filing of the petition as to all members of the class as defined
or described therein.” La. Code Civ. P. art. 596 (2012). This suspension lasts
until, inter alia, there is notice that the court declined to certify the class. Id.
To receive the benefit of suspension of prescription provided in Article 596, “an
individual filing an independent suit must establish three predicate facts: (1) the


       1
         Contrary to Appellants’ assertions, whether prescription was suspended is a question
of law, not fact. Newby v. Enron Corp., 542 F.3d 463, 468 (5th Cir. 2008).

                                             5
     Case: 12-30429      Document: 00512155875        Page: 6    Date Filed: 02/26/2013




                                    No. 12-30429
                                cons. w/ No. 12-30501
                                    No. 12-30502
                                    No. 12-30616
                                    No. 12-30621
                                    No. 12-30622
                                    No. 12-30624

existence of a timely filed class action proceeding against the defendant; (2) that
he or she is a member of the class described or defined in the identified class
petition; and (3) that the claims asserted in the independent action arise ‘out of
the transactions or occurrences described’ in that petition.” Quinn v. La. Citizens
Prop. Ins. Corp., No. 2012-CC-0152, 2012 WL 5374255, at *8 (La. Nov. 2, 2012).
          In their complaints, Appellants listed the following federal class action
petitions that allegedly suspended prescription pursuant to Article 596:
(1) Connie Abadie et al. v. Aegis Security Ins. Co. et al., No. 06-5164 (E.D. La.
filed Aug. 29, 2006) (“Abadie I”); (2) Susan Abadie et al. v. Aegis Security Ins. Co.
et al., No. 07-5112 (E.D. La. filed Aug. 28, 2007) (“Abadie II”); (3) In re: Katrina
Canal Breaches Consol. Litigation, No. 05-4182 (E.D. La. filed Mar. 15, 2007)
(“Master Complaint”); and (4) Louisiana State et al. v. AAA Ins. et al., No. 07-
5528 (E.D. La. filed Sept. 11, 2007) (“Road Home”). The district court concluded
that none of these class action petitions met the requirements to suspend
prescription under Article 596 because (1) State Farm was not a defendant in
Abadie II; (2) Appellants’ claims were unrelated to the claims in Abadie I and the
Master Complaint;2 and (3) Appellants were neither class members of nor had
claims related to the class action in Road Home.




      2
         The district court noted that Abadie I and the Master Complaint involved attempts
to recover for flood damage, whereas the present claims seek payments for wind damage.

                                            6
     Case: 12-30429       Document: 00512155875         Page: 7    Date Filed: 02/26/2013




                                     No. 12-30429
                                 cons. w/ No. 12-30501
                                     No. 12-30502
                                     No. 12-30616
                                     No. 12-30621
                                     No. 12-30622
                                     No. 12-30624

           On appeal, Appellants only assert all three of Article 596’s predicate
facts in regard to the Master Complaint.3 Appellants contend that prescription
is still suspended because there has been no notice that class certification was
denied by the U.S. District Court for the Eastern District of Louisiana in 2009,
even though federal rules do not allow for the publication of notice after a denial
of class certification. Recently, however, the Louisiana Supreme Court held that
“the suspension of prescription provided [under Article 596] applies only to
‘petition[s] brought on behalf of a class’ in the state courts of Louisiana.” Quinn,
2012 WL 5374255, at *15 (footnote omitted). As a federal class action petition,
the Master Complaint cannot suspend prescription under Article 596 as a matter
of law. Therefore, the district court correctly held that Appellants’ claims are
untimely.
            The judgment of the district court is AFFIRMED.




       3
        Appellants concede that State Farm was not a defendant in Abadie II, fail to assert
membership in the Road Home class, and only cite Abadie I in the context of providing the
procedural history of the Master Complaint. Failure to adequately brief an issue on appeal
constitutes waiver of that argument. United States v. Thames, 214 F.3d 608, 611 n.3 (5th Cir.
2000).

                                             7
