     Case: 10-30791        Document: 00511521368         Page: 1     Date Filed: 06/27/2011




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

                                                                                FILED
                                                                               June 27, 2011
                                          No. 10-30791
                                                                              Lyle W. Cayce
                                                                                   Clerk

JAMES D. CHENEVERT; CHARLES D. BISHOP, JR.

                                                                      Plaintiffs - Appellants

v.

CHRISTOPHER JOSEPH SPRINGER; THE REDEMPTORISTS DENVER
PROVINCE; REVEREND THOMAS D. PICTON, JR. AND HIS
PREDECESSORS AND SUCCESSORS AS PROVINCIAL SUPERIOR OF
THE REDEMPTORISTS DENVER PROVINCE; THE REDEMPTORISTS
NEW ORLEANS VICE PROVINCE
                                          Defendants - Appellees




                       Appeal from the United States District Court
                           for the Middle District of Louisiana
                                 USDC No. 3:09-CV-473



Before JOLLY and HAYNES, Circuit Judges, and VANCE,* District Judge.

PER CURIAM:**


        *
            District Judge of the Eastern District of Louisiana, sitting by designation.
       **
          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not be published and is not precedent except under the limited circumstances set forth in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: 10-30791       Document: 00511521368           Page: 2     Date Filed: 06/27/2011

                                        No. 10-30791

       James D. Chenevert and Charles D. Bishop, Jr. appeal the district court’s
dismissal of this case on prescription grounds. Plaintiffs allege that they were
sexually abused by Christopher Joseph Springer, a Roman Catholic priest who
was ordained by the Redemptorist Fathers, a religious order of the Roman
Catholic Church. Although the complaint alleges horrific abuse, the dispositive
issue in this appeal is prescription. Specifically, we must decide whether this
suit, which is based on allegations of molestation that occurred over twenty-five
years ago, is timely under Louisiana law. Because no exception to prescription
applies, we affirm the district court’s summary judgment dismissing plaintiffs’
claims as time-barred.1
                                               I.
       We review a district court’s grant of summary judgment de novo and apply
the same standard as the district court. Holt v. State Farm Fire & Cas. Co., 627
F.3d 188, 191 (5th Cir. 2010). Summary judgment is appropriate if there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a). The Court must consider the facts and
evidence in the light most favorable to the non-movant. Holt, 627 F.3d at 191.
       It is uncontested that the prescriptive periods for plaintiffs’ claims have
expired and that those claims are barred, unless prescription was tolled under
the Louisiana law doctrine of contra non valentem. Contra non valentem is a
judicially-created exception to statutory prescription, and it applies only in
exceptional circumstances. La. Civ. Code art. 3467, cmt. d. When the discovery
rule of contra non valentem applies, the prescriptive period “commences on the
date the injured party discovers or should have discovered the facts upon which
his cause of action is based.” Eastin v. Entergy Corp.,865 So.2d 49, 55 (La. 2004).


       1
          The district court dismissed on grounds of prescription, but the exact rationale of the
district court’s oral decision is not clear. We may affirm the district court’s judgment for any
reason supported by the record, regardless of whether the district court relied upon it. Forsyth
v. Barr, 19 F.3d 1527, 1534 n.12 (5th Cir. 1994).

                                               2
   Case: 10-30791           Document: 00511521368   Page: 3   Date Filed: 06/27/2011

                                       No. 10-30791

      Plaintiffs argue that contra non valentem applies because their memories
of the abuse they suffered were repressed, preventing them from knowing about
their causes of action. The depositions that plaintiffs gave in a related state
court matter, however, make clear that plaintiffs’ memories of the abuse they
allege were not repressed. Rather, plaintiffs unequivocally stated that they
actively remembered the abuse after it occurred. Chenevert, in his deposition,
indicated that he remembered the abuse constantly, although he did not tell
anyone about it until February of 2005.2 Chenevert stated:
     I always had [the abuse] in the back of my mind. And once the
     abuse ended . . . I was always concerned that it was going to come
     out.3
Chenevert also stated that he joined the Marines and left his hometown in 1984
specifically in response to the possibility that his abuse would be made public.4
      Bishop also testified that he never lost memory of the abuse. In his
deposition, the following exchange took place:
      Q.        And you didn’t lose any memory of [the abuse] having
                happened, you just didn’t feel the need to tell anyone?
      A.        The need? I didn’t lose any memory, no.5
Additionally, Bishop testified that he told another individual about the abuse in
1985, when he was 18 years old.6
      Because plaintiffs did not lose memory of the facts underlying their
allegations, their contra non valentem argument cannot prevail. See, e.g.,
Mitchell v. Limoges, 923 So.2d 906, 911 (La. Ct. App. 2004)(not applying contra
non valentem when plaintiffs knew of the alleged sexual abuse and told others



      2
          S. 108-2 at 98.
      3
          Id.
      4
          Id. at 98-99.
      5
          S. 108-1 at 113.
      6
          Id. at 111-12.

                                             3
   Case: 10-30791          Document: 00511521368          Page: 4   Date Filed: 06/27/2011

                                          No. 10-30791

about it); Doe v. Doe, 671 So.2d 466, 471 (La. Ct. App. 1995)(sexual abuse claim
was prescribed when plaintiff knew of the harm the alleged abuse caused him
over a year before filing suit, despite psychologist’s testimony to the contrary);
Doe v. Roman Catholic Church, 656 So.2d 5, 8-10 (La. Ct. App. 1995)(sexual
abuse claim was prescribed, despite plaintiff’s argument that she recently
recollected memory of the abuse, when deposition testimony indicated that
plaintiff regained memory of abuse at least a year before filing suit).
                                                 II.
       Plaintiffs respond by arguing, first, that we should not consider their
depositions because the records in their state court cases have been sealed. But
plaintiffs’ counsel herself provided the deposition transcripts to the
Redemptionists.7          Plaintiffs cannot complain about defendants’ use of the
transcripts after plaintiffs, by their own account, violated the state court’s
sealing orders by providing those transcripts to defendants. Further, defendants
filed the transcripts under seal in this case, obviating concerns about public
disclosure.
       Plaintiffs also argue that the deposition transcripts are inadmissible under
Fed. R. Evid. 408 because plaintiffs’ counsel provided them to the
Redemptionsts’ counsel for the purpose of facilitating a possible settlement. The
transcripts, however, are neither an offer to compromise under Rule 408(a)(1),
nor “conduct or statements made in compromise negotiations regarding the
claim” under subsection (a)(2).               FED. R. EVID. 408(a)(1),(2).8 Rather, the
depositions pre-existed the settlement negotiations, and they were not taken for


       7
           S. 100-1 at 2 (affidavit of appellants’ counsel).
       8
         Rule 408(a)(1) applies to “furnishing or offering or promising to furnish--or accepting
or offering or promising to accept--a valuable consideration in compromising or attempting to
compromise the claim.” Rule 408(a)(2) applies to “conduct or statements made in compromise
negotiations regarding the claim except when offered in a criminal case and the negotiations
related to a claim by a public office or agency in the exercise of regulatory, investigative, or
enforcement authority.”

                                                  4
   Case: 10-30791      Document: 00511521368   Page: 5   Date Filed: 06/27/2011

                                   No. 10-30791

the purpose of facilitating those negotiations. Rule 408 “cannot be read to
protect pre-existing information simply because it was presented to the
adversary in compromise negotiations.” FED. R. EVID. 408, Advisory Committee
Notes, 2006 Amendment (noting that an express provision of Rule 408 to this
effect was “deleted as superfluous”). Thus, the depositions are admissible, and
they clearly show that prescription was not tolled in this case.
      Finally, plaintiffs argue that the district court improperly denied their
motion under Fed. R. Civ. P. 56(d) to defer consideration of defendants’ motions
for summary judgment. We review the denial of a Rule 56(d) motion for abuse
of discretion. Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 534 (5th
Cir. 1999). Rule 56(d) motions are generally favored and should be liberally
granted, but the movant must demonstrate (1) why he needs additional
discovery, and (2) how the additional discovery will likely create a genuine issue
of material fact. Id. at 534-35.
      Plaintiffs contend that they should have the opportunity to obtain
additional evidence on the subject of repressed memory and have provided an
affidavit by Dr. Constance J. Dalenberg, a professor of psychology, in support of
that contention.9 Dalenberg states that losing conscious memory of traumatic
events and then recovering those memories at a later date is a real phenomenon
and that a specialist can administer a series of tests to determine whether an
individual’s assertion of recovered memory is authentic.10 Plaintiffs state in
their depositions, however, that they did not lose memory of the abuse.
Dalenberg does not make any claim that, using her techniques, she can
demonstrate that a person who asserts that he or she remembered an event
continuously is wrong. Further discovery on the subject of repressed memory




      9
          S. 100-2.
      10
           Id. at 6.

                                        5
   Case: 10-30791   Document: 00511521368      Page: 6   Date Filed: 06/27/2011

                                  No. 10-30791

would not create a genuine issue of material fact, and the district court was
within its discretion to deny plaintiffs’ Rule 56(d) motion.
                                       III.
      We therefore AFFIRM the district court’s dismissal of this case on
summary judgment.




                                        6
