                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                       December 12, 2006
                                  FOR THE FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk


                                           No. 06-30194



MICHAEL F. HENRY,

                                                                              Plaintiff-Appellant,
                                               versus

DUANE MORRIS, LLP,
                                                                              Defendant-Appellee.




                           Appeal from the United States District Court
                              for the Eastern District of Louisiana
                                    USDC No. 2-03-CV-2363


Before REAVLEY, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

                                         INTRODUCTION

       Duane Morris, LLP (“Duane Morris”), represented Michael Henry in litigation against Cisco

Systems, Inc. (“Cisco”). That lawsuit was dismissed because it was time barred, and Henry filed the

instant malpractice suit seeking damages from Duane Morris. The district court dismissed the

malpractice suit because it is time barred by Louisiana law. Henry appeals, arguing that Illinois law

should govern the claim. We affirm the district court.


       *
        Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
                       FACTUAL AND PROCEDURAL BACKGROUND

       Henry, a Louisiana citizen, hired the law firm of Duane Morris, LLP, in 2000 to represent him

in litigation against Cisco. This underlying suit (the “Cisco litigation”) was filed on November 28,

2000, in district court in Louisiana based on diversity jurisdiction and involved many claims, including

defamation and fraudulent inducement. An amended complaint was filed on February 12, 2001,

alleging a theory of continuing tort, in an attempt to overcome an apparent prescription problem. As

part of the discovery leading up to the amended complaint, the district court ordered some documents

to be filed under seal and allowed only counsel, not Henry, to have access to the documents. Cisco

filed a motion to dismiss on September 19, 2001, based on privilege and prescription. The district

court granted the motion on February 3, 2006. Henry timely appealed to this court, which affirmed

the district court’s dismissal. Henry v. Cisco Systems, Inc., 106 F. App’x 235 (5th Cir. 2004).

       Duane Morris did not represent Henry throughout the Cisco litigation. During the course of

the proceedings, Henry became dissatisfied with Duane Morris and hired new counsel. By October

25, 2001, Henry complained to Duane Morris about concerns with their performance, instructed them

to stop working on the case, and retained a new lawyer. Duane Morris considered the representation

officially over on January 21, 2002, when Henry ordered the firm to release the Cisco litigation files

to his new counsel.

       In early 2002, Henry consulted a lawyer specifically for the purpose of bringing a malpractice

suit against Duane Morris. After this meeting, Henry sent emails to Duane Morris telling the firm that

he intended to file a lawsuit and intimating that he would file such a lawsuit in Louisiana. The

complaint against Duane Morris was filed on August 21, 2003, in district court in Louisiana. On a


                                                   2
summary judgment motion, the district court determined that Henry’s malpractice claim was time

barred under Louisiana law and dismissed the claim. Henry appeals to this court.

                                            DISCUSSION

        This court reviews the grant of summary judgment de novo. Marchesani v. Pellerin-Milnor

Corp., 269 F.3d 481, 485 (5th Cir. 2001). This court also reviews the district court’s determination

of state law de novo. Id. When a federal court sits in diversity, it applies the choice of law rules of

the forum state. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941) (citing Erie R.R. Co.

v. Tompkins, 304 U.S. 64 (1938)). Choice of law in civil suits in Louisiana is generally governed by

LA. CIV. CODE ANN. art. 3542.1 This court applies, as the district court did, Louisiana’s choice of

law rules.

        The Louisiana law of prescription/peremption should generally be applied to all civil suits

brought in Louisiana courts, regardless of which state’s law applies to the underlying substance of

the suit. LA. CIV. CODE ANN. art.3549. If a suit would be time barred under Louisiana law but not

under the laws of the state whose law applies to the substantive conflict, the suit may be maintained

if “compelling considerations of remedial justice” warrant it. Id. It is not necessary at the outset to

determine whether Louisiana or Illinois malpractice law applies to this cause of action. First, it must




        1
          The statute provides that the law to be applied should be “the law of the state whose policies
would be most seriously impaired if its law were not applied to that issue.” LA. CIV. CODE ANN. art.
3542. In order to make this determination, courts should consider “the pertinent contacts of each
state to the parties and the events giving rise to the dispute, including the place of conduct and injury,
the domicile, habitual residence, or place of business of the parties, and the state in which the
relationship, if any, between the parties was centered,” as well as the policy goals of deterring
wrongful conduct, providing damages for injury, and protecting the parties’ justified expectations.
Id.

                                                    3
be determined if the suit can be maintained at all in light of Louisiana’s statute-of-limitations-like

rules.

         If the law of Louisiana applies to this claim, then there is no question that the

prescription/peremption laws of Louisiana would apply. LA. CIV. CODE ANN. art. 3549(A). If the

law of Illinois applies to this claim, Louisiana prescription/peremption law would still apply to this

claim unless the action would be allowed by Illinois law2 and “compelling considerations of remedial

justice” favor allowing the suit to progress. LA. CIV. CODE ANN. art. 3549 (B)(1).

         Henry must show that the interests of justice favor the adjudication of his claim. Generally,

Louisiana courts have interpreted this provision very narrowly, giving it effect only where “the most

extraordinary of circumstances” are present. Brown v. Slenker, 220 F.3d 411, 420 (5th Cir. 2000)

(citing Landry v. Ford Motor Co., No. MDL-1063, 1996 WL 661052, at *3 (E.D. La. Nov. 12,

1996) (interpreting the official comments on LA. CIV. CODE ANN. art. 3549)). The provision is based

on the Restatement (Second) of Conflict of Laws and takes its meaning from that document. 1991

REVISION COMMENTS TO LA. CIV. CODE ANN. ART. 3549; see also Brown, 220 F.3d at 420. The

Restatement suggests relief would be appropriate when “through no fault of the plaintiff an alternative

forum is not available . . . where jurisdiction could be obtained over the defendant . . . or where for

some reason a judgment obtained in the other state having jurisdiction would be unenforceable in

other states.” REST. (SECOND) OF CONFLICT OF LAWS, § 142 cmt. f (1986 Rev. Supp. Mar. 31,



         2
          The law of Illinois would allow the maintenance of the suit because Illinois has adopted a rule
that its two-year statute of limitations does not begin to run until a trial court enters a final judgment.
See Lucey v. Law Offices of Pretzel & Stouffer, 703 N.E.2d 473, 479 (Ill. App. Ct. 1998); see also
Praxair, Inc. v. Hinshaw & Culbertson, 235 F.3d 1028, 1032 (7th Cir. 2000). Because the trial court
in this case entered judgment on August 27, 2002, Henry’s suit filed on August 21, 2003, would be
timely.

                                                    4
1987). “In cases where plaintiffs have litigated their claims in Louisiana by choice, not by necessity,

claims of ‘compelling considerations’ warranting maintenance of the suit in Louisiana have been

consistently rejected.” Brown, 220 F.3d at 420 (citing Seagrave v. Delta Airlines, Inc., 848 F.Supp.

82, 83-84 (E.D. La. 1994); Skyrme v. Diamond Offshore (U.S.A.), Inc., No. 94-1110, 1994 WL

320928, at *2-*3 (E.D. La. June 30, 1994); Landry, 1996 WL 661052, at *2; Amaro v. Marriott

Residence Inn, No. 94-3465, 1995 WL 91132 (E.D. La. March 1, 1995)). Because Henry

specifically chose to file suit in Louisiana, Louisiana’s prescription/peremption law applies to this

claim even if Illinois malpractice law applies to the substance of the claim.

       Next, we must consider which prescriptive period applies to this case. When reviewing a

district court’s determination of state law while sitting in diversity, this court should resolve any

questions of Louisiana law “the way the Louisiana Supreme Court would interpret the statute based

upon prior precedent, legislation, and relevant commentary.” Stephens v. Witco Corp., 198 F.3d 539,

541 (5th Cir. 1999).

       LA. REV. STAT. ANN. § 9:5605 is Louisiana’s statute governing the prescriptive period for

malpractice suits. The statute applies to “any attorney at law duly admitted to practice in this state,

any partnership of such attorneys at law, or any professional corporation, company, organization,

association, enterprise, or other commercial business or professional combination authorized by the

laws of this state to engage in the practice of law.” Id. Duane Morris is not licensed to practice as

a firm in Louisiana. Henry urges that this provision should only be applied to attorneys licensed to

practice in Louisiana, while Duane Morris argues that it should be applied to anyone not prohibited

from practicing in Louisiana. The Louisiana Supreme Court has not decided this issue.




                                                  5
       Because there is no guidance on the applicability of § 9:5605 to the facts at issue here, we

decline to determine how the Louisiana Supreme Court would rule on this issue. See, e.g., In re

Whitaker Constr. Co., Inc., 411 F.3d 197, 209 n.4 (5th Cir. 2005). Instead, we apply the more

general, one-year prescriptive period in LA. CIV. CODE. ANN. art. 3492, which applies if a more

specific peremptory period does not apply. Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 353-54

(La. 1992). The doctrine of contra non valentem is applicable to this prescriptive period. Id. at 354.

Therefore, if Henry could show that he was unaware of his cause of action until a year before the date

he filed the malpractice suit, he could escape the application of article 3492. In Harvey, the Louisiana

Supreme Court interpreted article 3492's application to a malpractice claim that arose prior to the

passage of § 9:5605 and held that a claim arose when the plaintiff began suffering damage from a

known act of malpractice. Id. at 355. The court held that the requisite harm to the plaintiff began

accruing when the plaintiff began to incur legal expenses as a result of investigating and correcting

the malpractice. Id. In this case, that would be when Henry hired new counsel in October 2001.

Therefore, Harvey’s claim of action accrued over one year before he filed the malpractice complaint

in August 2003.3 Even if article 3492 applies, Henry filed his malpractice suit after the prescriptive

period had run.4

                                           CONCLUSION


       3
         Because of the amended complaint, Henry could argue that Duane Morris was engaged in
a continual representation of him such that Duane Morris prevented him from pursuing his claim by
assuring him that they would fix the malpractice. See Lima v. Schmidt, 595 So.2d 624, 630 (La.
1992). However, Henry hired a new lawyer and ceased all contact with Duane Morris by January of
2002 at the latest, meaning that any possible contra non valentem exception under Lima still does not
render Henry’s suit timely.
       4
         The documents filed under seal in the Cisco litigation are irrelevant because they had no
effect on Henry’s knowledge of Duane Morris’s alleged malpractice.

                                                   6
       Because Henry filed his malpractice suit after the prescriptive/peremptive period allowed by

Louisiana law, we affirm the district court’s dismissal of this case.




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