               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT


                       ____________________

                           No. 01-31353

                         Summary Calendar
                       ____________________


     SERGIO LANZAS

                                    Plaintiff - Appellant

          v.

     THE AMERICAN TOBACCO COMPANY INC; ET AL

                                    Defendants

     BROWN & WILLIAMSON TOBACCO CORPORATION; PHILIP MORRIS INC;
     QUAGLINO TOBACCO AND CANDY COMPANY INC; IMPERIAL TRADING
     COMPANY; GEORGE W GROETSCH INC; J & R VENDING SERVICE INC

                                    Defendants - Appellees

_________________________________________________________________

          Appeal from the United States District Court
              for the Eastern District of Louisiana
                          No. 00-CV-2262

_________________________________________________________________
                          August 2, 2002
Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit
Judges.

PER CURIAM:*

     Plaintiff-Appellee Sergio Lanzas appeals summary judgment in

favor of Defendants-Appellees based on the district court’s

     *
        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that this opinion should not be published and is not precedent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.
determination that Lanzas’s various state law claims, which arise

from injury allegedly caused by Lanzas’s smoking of tobacco

cigarettes, are prescribed under Louisiana law.    For the

following reasons, we AFFIRM.

                 I.   FACTUAL AND PROCEDURAL HISTORY

     Plaintiff-Appellant Sergio Lanzas smoked tobacco cigarettes

since 1955 until February of 1993.    On February 12, 1993, Lanzas

was diagnosed with throat cancer and subsequently underwent a

laryngectomy.    Lanzas has purchased no tobacco products since

February 12, 1993.    When Lanzas was asked in his deposition

whether he “knew that the smoking had caused the throat cancer,”

Lanzas responded that his diagnosing doctor told him, “You got

bad cancer.    It’s coming from the cigarette, from your smoking.”

     A class action, Scott v. Am. Tobacco Co., Inc., was filed in

1996 in Louisiana state court against various tobacco defendants,

alleging damages based on tobacco companies’ fraudulent

concealment regarding the nicotine content of their products.

Lanzas was a member of that class until he opted out on June 12,

2000.    On July 12, 2000, Lanzas filed the instant individual

action in Louisiana state court against several out-of-state

manufacturers of tobacco products (the “Manufacturer Defendants”)

and several in-state distributors of tobacco products (the

“Distributor Defendants”) (collectively, the “Defendants”).2

     2
        The original defendants included, inter alia, The
American Tobacco Company, Inc.; Brown & Williamson Tobacco Corp.;

                                  2
Lanzas alleged state law claims for redhibition, breach of

implied and express warranties, fraud, negligent

misrepresentation, negligence, intentional infliction of

emotional distress, negligent infliction of emotional distress,

and a claim under the Louisiana Products Liability Act, LA. REV.

STAT. ANN. § 9:2800.51 et seq. (West 1997).       On August 1, 2000,

the Defendants removed the action to federal district court on

the ground of diversity of citizenship.    Lanzas moved for remand

of his claims to state court on the ground that his redhibition

claim destroyed diversity.    On May 3, 2001, the district court

denied the motion to remand, also finding that all of Lanzas’s

state law claims are prescribed under Louisiana law.       In light of

that finding, the Defendants moved for summary judgment on the

ground that Lanzas’s state law claims are prescribed.3       On

October 11, 2001, the district court granted summary judgment in

favor of the Defendants on the ground that all of Lanzas’s claims

are prescribed.   Lanzas timely appeals that summary judgment.



                      II.    STANDARD OF REVIEW




Philip Morris Inc.; Quaglino Tobacco and Candy Company, Inc.;
Imperial Trading Company, Inc.; George W. Groetsch, Inc.; and J &
R Vending Service, Inc.
     3
        The American Tobacco Company, Inc. did not join the
motion for summary judgment and is not party to this appeal. The
term “Defendants” used henceforth in this opinion thus refers to
the defendants-appellees.

                                   3
     We review a district court’s summary judgment de novo,

applying the same standards as the district court.       Chaney v. New

Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir.

1999).   Summary judgment is appropriate when there is no genuine

issue of material fact, and the moving party is entitled to

judgment as a matter of law.    FED. R. CIV. P. 56(c).

                         III.   DISCUSSION

     The district court correctly determined that the law of the

Louisiana forum regarding prescriptive periods governs this

diversity action.   See Orleans Parish Sch. Bd. v. Asbestos Corp.

Ltd., 114 F.3d 66, 68 (5th Cir. 1997) (applying the prescriptive

period of the forum state in a diversity action).    See also

Taylor v. Liberty Mut. Ins. Co., 579 So.2d 443, 446-47 (La. 1991)

(recognizing that courts applying Louisiana law ordinarily apply

the prescriptive period of the forum, especially when that

forum’s substantive law governs the case).4    The district court

also correctly determined that all of Lanzas’s claims are subject

to a one-year prescription period under Louisiana law.      Lanzas’s

delictual claims for fraud, negligent misrepresentation,

negligent infliction of emotional distress, intentional

infliction of emotional distress, as well as the products

liability claim, are subject to a one-year prescriptive period

that begins to run from the date of injury.    See LA. CIV. CODE

     4
        Lanzas does not dispute that Louisiana law regarding
prescription governs his claims.

                                  4
ANN. art. 3492 (West 1994).   The district court correctly

determined that pursuant to the applicable prescriptive statute,

former LA. CIV. CODE art. 2546 (West 1994), Lanzas’s claims for

redhibition and breach of implied and express warranties are also

subject to a one-year prescription period.   See Austin v. N. Am.

Forest Prods., 656 F.2d 1076, 1083 (5th Cir. Unit A Sept. 1981)

(recognizing that breach of warranty claims under Louisiana law

are considered redhibitory in nature and thus subject to the

redhibitory prescriptive period) (citing Cotton States Chem. Co.

v. Larrison Enter., Inc., 342 So.2d 573 (La. Ct. App. 1961)).5

Under Louisiana law, the prescriptive period applicable to

Lanzas’s redhibition and breach of warranty claims ran for one

year from the date Lanzas discovered the defect because Lanzas

alleges that the seller had knowledge of the product defect.      See

id. at 1084 (discussing article 2546).6

     5
         Former article 2546 was amended, effective January 1,
1995, to provide for a longer ten-year prescriptive period
applicable to claims based on redhibition. See Grenier v. Med.
Eng’g Corp., 243 F.3d 200, 206 (5th Cir. 2001) (citing LA. CIV.
CODE art. 2534, 3499). Lanzas does not argue that the longer
post-1995 prescriptive period applies to his claims.
     6
        In the alternative, the applicable prescriptive period
begins to run from the date of sale -- February 12, 1993 at the
latest in this case -- if the seller does not in bad faith know
of the defect. See, e.g., Manning v. Scott-Hixson-Hopkins, Inc.,
605 So.2d 233, 235 (La. Ct. App. 1992). There is a conclusive
presumption that a manufacturer knows of a defect, however. See
Austin, 656 F.2d at 1084. We find that Lanzas’s claims based on
redhibition are prescribed even if we apply a prescriptive period
that begins to run from the date of discovery of the defect.
Thus, we find it unnecessary to address the Distributor
Defendants’ separate argument that as to them, as non-

                                 5
     Lanzas argues that the district court incorrectly found that

the doctrine of contra non valentem and the filing of the Scott

class action failed to prevent prescription of Lanzas’s claims.

Under Louisiana law, the doctrine of contra non valentem may

prevent the ordinary running of a prescriptive period in four

categories of circumstance: (1) where some legal cause prevented

the courts from “taking cognizance or acting on the plaintiff’s

actions;” (2) where some condition “coupled with the contract or

connected with the proceedings” prevented a creditor from

bringing suit; (3) where a debtor has done some act to prevent a

creditor from availing himself of his cause of action; or (4)

where “the cause of action is not known or reasonably knowable by

the plaintiff, even though his ignorance is not induced by the

defendant.”   See Corsey v. State Dep’t of Corr., 375 So.2d 1319,

1321-22 (La. 1979) (noting that the fourth exception to

prescription will not apply if the plaintiff’s “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”) (citations omitted).   Lanzas argues that

the district court should have found that his claims are timely-

filed either because his claims were not discoverable earlier or



manufacturers not subject to a presumption that they knew of the
defect at the time of sale, the prescription period for Lanzas’s
claims based on redhibition should begin to run from the last
possible date of sale of tobacco products to Lanzas, February 12,
1993.

                                 6
because some legal cause prevented him from filing his individual

claims.

     It is undisputed that Lanzas stopped purchasing cigarettes

by February of 1993 -- the time at which Lanzas was diagnosed

with cancer and expressly told by his diagnosing doctor that the

cancer was due to his smoking of tobacco cigarettes.   Such facts

suggest that the prescription period as to Lanzas’s claims began

to run in February of 1993 and that his claims were prescribed

one year later in February of 1994.   Nevertheless, the district

court credited Lanzas’s allegation in his complaint, expressly

made based on contra non valentem, that due to concealment

practices by tobacco companies, Lanzas was unaware that he had a

cause of action until shortly before the filing of the class

action, Castano v. Am. Tobacco Co., Inc., on March 29, 1994 -- a

national class action filed on behalf of all nicotine-dependent

smokers.7   Lanzas alleged in his complaint that, because he was

not aware until shortly before the filing of Castano in March of

1994 that cigarettes were highly addictive, then the one-year


     7
        Castano was filed on behalf of all nicotine-dependent
persons that purchased and smoked cigarettes and their families
against tobacco companies, including several of the instant
Manufacturer Defendants. See 84 F.3d 734, 737 & n.3 (5th Cir.
1996). The Castano plaintiffs alleged the same nine causes of
action as those alleged here by Lanzas, including fraud,
negligent misrepresentation, negligence, intentional infliction
of emotional distress, negligent infliction of emotional
distress, breach of express and implied warranties, a products
liability claim, and redhibition pursuant to the Louisiana Civil
Code. See id. & n.4.

                                 7
prescription period could not begin to run until that date at the

earliest.   Accepting Lanzas’s assertion, the district court found

that the prescriptive period first began to run in March 1994.

The district court correctly determined, however, even assuming

under the doctrine of contra non valentem that prescription was

tolled until March 1994, Lanzas still failed to file the instant

action in timely fashion.8

     Based on that March 29, 1994 date, Lanzas’s claims would

prescribe after March 29, 1995.   However, the district court also

applied the rule that the filing of a class action tolls the

prescriptive period for the filing of an individual claim by a

class member until class certification is denied.   See Crown,

Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 348-54 (1983)

(extending an earlier decision by the Court, in Am. Pipe &

Constr. Co. v. Utah, 414 U.S. 538 (1974), to hold that the filing

of a class action may toll the statute of limitations as to

individual claims later filed by putative class members).    The

district court thus found that Lanzas’s claims were tolled until

May 23, 1996, when this court decertified Castano, see 84 F.3d



     8
        Like the district court, because we find Lanzas’s claims
prescribed based on periods that began to run even after the date
Lanzas stopped smoking in February of 1993, we find it
unnecessary to address the Defendants’ contention that the
prescription period as to some of Lanzas’s claims began to run
even earlier because of evidence that Lanzas was aware of the
dangers of smoking much earlier than the date he was diagnosed
with cancer.

                                  8
734, 751 (5th Cir. 1996).   The district court then found that the

one-year prescription period resumed running against Lanzas on

that date in May 1996, so that Lanzas should have filed the

instant individual action by May 23, 1997.

     The district court then determined that our rule, announced

in Salazar-Calderon v. Presidio Valley Farmers Ass’n, mandated

rejection of Lanzas’s contention that the filing of Scott in 1996

-- another class action in which Lanzas was a class member until

he opted out on June 12, 20009 -- could toll the running of the

prescription period as to his individual claims for a second

time.10   See Salazar-Calderon, 765 F.2d 1334, 1351 (5th Cir.

     9
        Scott was filed in Louisiana state court against various
tobacco manufacturers, including several of the Manufacturer
Defendants, on behalf of all Louisiana residents who were smokers
before May 24, 1996, including Lanzas. The exact date of the
filing of the complaint is not clear from the record, but
apparently was some time after May 24, 1996. The Scott
plaintiffs alleged, similarly to the Castano plaintiffs and
Lanzas, “essentially” that “defendants manufactured, promoted and
sold cigarettes to them while fraudulently concealing and denying
that the cigarettes contained the drug nicotine.” See Scott v.
Am. Tobacco Co., Inc., 01-2498 (La. 9/25/01), 795 So.2d 1176,
1179.
     10
        In none of Lanzas’s filings made subsequent to his
original complaint, including his brief on appeal, does he again
refer to Castano or argue that his claims were tolled based on
his ignorance ending with the March 1994 filing of that action.
Rather, Lanzas asserts in his pleadings filed subsequent to his
complaint, and in his brief on appeal, only that he was ignorant
that he had any claim until he spoke with attorneys prior to the
filing of Scott in 1996. The district court, however, correctly
considered all of the pleadings on file in making its summary
judgment determination, including Lanzas’s own assertions in his
complaint. See FED. R. CIV. PROC. 56(c).
     In order for this court to find in favor of Lanzas that
Scott alone tolled the prescription period until he opted out of

                                 9
that class, this court would need to (1) ignore Lanzas’s
assertion that Castano made him aware that he had a claim, (2)
then apply the doctrine of contra non valentem to find that the
prescriptive period did not first begin to run until 1996 when
Lanzas spoke to attorneys involved in Scott, and (3) finally
apply the Crown class tolling rule to find that Lanzas’s claims
were tolled only by Scott until he opted out of that class in
June of 2000. We decline to do so. Viewing the record on appeal
as a whole indicates that Lanzas fails to present evidence that
he was unaware that he had a claim until he spoke with attorneys
involved in the Scott case as late as 1996, especially in light
of Lanzas’s own assertion in his complaint that he was made aware
that he had claims related to smoking by the March 1994 filing of
Castano. Indeed, Castano involved identical claims as those made
by Lanzas and included several of the same defendants as those in
the instant case. We see no error in the district court’s
crediting Lanzas’s own assertion in his complaint that he was
made aware that he had a claim by the 1994 filing of Castano.
     The record does not clearly establish Lanzas’s relationship
to the Castano action, and thus it is unclear whether application
of the class action tolling rule based on Castano was necessary.
American Pipe counsels that the class action tolling rule applies
to “all asserted members of the class who would have been parties
had the suit been permitted to continue as a class action,” 414
U.S. at 554, thus Castano appears to have included Lanzas for the
purpose of applying the class action tolling rule because he
claims to have been a nicotine-dependent smoker during the
relevant time period. This issue is ultimately of no consequence
to our determination that the district court did not err in
finding Lanzas’s claims prescribed, however. Because we find
that Lanzas fails to present evidence that he was unaware he had
a claim until the 1996 filing of Scott, his claims are prescribed
regardless of the district court’s application of the class
action tolling rule based on Castano and then our Salazar-
Calderon rule against successive class action tolling. Even
assuming that the filing of Castano did not first toll Lanzas’s
claims but only marked the date from which prescription began to
run pursuant to contra non valentem, Lanzas’s claims would have
prescribed by March of 1995 at the latest -- one year after the
March 1994 latest possible date that prescription first began to
run against Lanzas. The filing of a class action will not revive
a prescription period that has already run its course, however.
See, e.g., Orleans Parish, 114 F.3d at 69. Thus, the filing of
Scott in 1996 after the prescription period had already run in
March 1995 had no effect on prescription of Lanzas’s claims in
this case, notwithstanding any application by the district court
of the class action tolling rule based on Castano and then the

                               10
1985) (applying a no-“piggyback” rule that precludes class

members from availing themselves of the Crown rule to file

successive class actions involving members of the same putative

class to “toll the statute of limitations indefinitely” for the

purpose of later filing individual claims and indicating that “it

has repeatedly been noted that the tolling rule [in the context

of class actions] is a generous one, inviting abuse,” and that

“to construe the rule” to allow for successive class action

tolling “presents just such dangers”) (internal quotation and

citations omitted).   See also Catholic Soc. Servs., Inc. v.

I.N.S., 182 F.3d 1053, 1060 (9th Cir. 1999) (noting that tolling

for successive class actions would “allow parties to bring a

potentially endless succession of class actions” that would

“frustrate the principle purposes of the class-action procedure -

- promotion of efficiency and economy of litigation”) (internal

quotation and citations omitted); Korwek v. Hunt, 827 F.2d 874,

878 (2d Cir. 1987) (acknowledging the Salazar-Calderon rule).

The district court correctly determined, therefore, that the

filing of Scott cannot interrupt prescription of Lanzas’s claims

for a second time after the first interruption in March of 1994,

which was ended by our decertification of the Castano class in

May of 1996.   Thus, the district court also correctly determined

that because Lanzas did not file the instant action until July



rule against successive class action tolling.

                                11
12, 2000, approximately four years later, his claims are

prescribed.   Therefore summary judgment in favor of the

Defendants is appropriate.11




                          IV.   CONCLUSION

     For the foregoing reasons, the district court’s summary

judgment in favor of the Defendants is AFFIRMED.



     11
        Lanzas makes one further convoluted argument that a
“Master Settlement Agreement” executed November 23, 1998 between
multiple states, including Louisiana, and some tobacco entities,
and which sets forth certain procedures that tobacco companies
must undertake with respect to tobacco product manufacturing and
marketing, indicates some form of acknowledgment by the
Defendants of Lanzas’s rights that would toll prescription of
Lanzas’s claims for the twenty-five year duration of that
settlement, pursuant to LA CIV. CODE art. 3464 (West 1994).
Article 3464 provides that “[p]rescription is interrupted when
one acknowledges the right of the person against whom he had
commenced to prescribe.” We note that Lanzas raised this
argument in his motion to the district court for remand of the
action, but did not raise this argument before that court on
summary judgment, so that Lanzas appears to have abandoned this
argument for the purpose of this appeal. The district court did
not refer to or rule on this argument in its summary judgment
order.
     In any event, we find the argument unavailing. The
settlement agreement excerpt included in the record with Lanzas’s
remand filings does not include reference to any specific
identifying action or the names of specific parties to it, and,
contrary to Lanzas’s assertion in his brief, it was executed in
1998, not 1996. Lanzas provides no authority supporting his
assertion that this settlement agreement, which was executed in a
wholly unrelated action initiated by the states, and which does
not indicate that it applies to any of the instant Defendants
specifically, shows any acknowledgment of Lanzas’s rights by the
Defendants sufficient to toll prescription of his claims pursuant
to article 3464.

                                 12
