Opinion
Civil Action No. 01-61 Section "K"(4).
June 19, 2001.
ORDER AND REASONS
Before the Court is a Motion to Dismiss filed by R. J. Reynolds Tobacco Co. ("Reynolds") (Doc. 6). Having reviewed the pleadings, memoranda and the relevant law, the Court finds merit in the motion.
This suit was originally filed in Civil District Court for the Parish of Orleans by pro se plaintiff Gary Juengain ("Juengain"). In his original petition, Juengain sought to recover for the death of his mother, Ruby Juengain, who died in"about the year 1979" and whose death, Juengain alleges, was caused by smoking cigarettes produced by Reynolds. Several defendants were named, but only Reynolds has been served, albeit allegedly improperly. In his First Amended Complaint, Juengain added Calvin Grace, the son of Louis Butte. Butte allegedly died about November 16, 1997 of lung cancer. A number of defendants were added by the Second Amended Complaint. By the Third Amended Complaint, Juengain added Ruby Juengain and Irene Kirklin as new party plaintiffs. Thus, Juengain added his dead mother as a party plaintiff, and Irene Kirklin, his dead grandmother who died about in 1978.
The case was removed to this Court on January 8, 2001, and the subject Motion to Dismiss was filed by Reynolds on March 23, 2001. The grounds for the motion include a survival action and a wrongful death action. Juengain then presented the Court with a number of motions which the Court by Minute Entry of April 17, 2001 refused to grant because of the pending motion to dismiss as it came to the attention of the Court that Juengain was ostensibly representing other parties even though he was not an attorney. Instead of filing a proper opposition to the Motion to Dismiss, addressing the legal arguments raised by Reynolds, Juengain sought a continuance based on his need for additional time to serve the other defendants. On April 18, 2001, noting its continued concern with respect to Juengain's unlicensed practice of law, the Court denied the continuance, noting that with respect to improper service, the Court would grant additional time for service to be perfected should just cause be demonstrated; however, it required plaintiff to file a substantive opposition to the Motion to Dismiss by April 23, 2001. To date, no such opposition actually addressing the legal issues surrounding any legal issue raised, including the viability of the survival action and the wrongful death action, have been filed by Juengain.
Reynolds moves to dismiss this action based on the following grounds: (1) plaintiffs attempted service on Reynolds was insufficient; (2) plaintiffs claims are prescribed and preempted; (3) Juengain, a non-lawyer, cannot represent others; and (4) Calvin Grace's claims must be dismissed for improper joinder. As to Juengain's claims, the Court finds the prescription and preemption arguments dispositive. As to Grace's claims, these are not properly before the Court for the reasons that follow.
It is clear under Louisiana law that a prescription analysis must be utilized for a wrongful death claim and that a preemption analysis must be used for a survival claims. A comprehensive discussion thereof is contained in Ayo v. Johns-Manville Sales Corp., 771 F.2d 902 (5th Cir. 1985). In Louisiana, a one-year prescriptive period applies to all delictual actions. La. Civ. Code art. 3492. The original complaint was filed December 17, 1999. Prescription commences when plaintiff knew or should have known of his claim through the exercise of due diligence.Edmundson v. Amoco Prod. Co., 924 F.2d 79, 83-84 (5th Cir. 1991). Ruby Juengain died in 1979; Irene Kirklin died in 1978. Therefore, the claims are prescribed on their face.
Under the doctrine of contra non valentum prescription does not run against a person who is unable to bring an action or for some reason is unable to act. The Courts have outlined four situations where the doctrine may be applied. Ayo, 771 F.2d at 907. When an action appears to have prescribed on the face of the petition, plaintiff bears the burden of establishing facts that would interrupt or suspend prescription.Yarborough v. Louisiana Cement Company, 370 So.2d 602 (La.App.Ct.) writ denied, 373 So.2d 531 (La. 1979). Juengain has provided the Court with no factual or legal support to invoke the doctrine of contra non valentum. Therefore, the wrongful death actions are prescribed.
As to Juengain's survival action, the doctrine of preemption applies.Ayo, 771 F.2d at 906; Reeder v. North, 701 So.2d 1291 (La. 1997); Guidry v. Theriot, 377 So.2d 319, 325 (La. 1979). The doctrine of contra non valentum does not apply to preemption; therefore, the survival actions brought by Juengain are preempted. La. Civ. Code art. 3458; Ayo, 771 F.2d at 906.
The claims filed by Juengain on behalf of Calvin Grace are not properly before the Court as Juengain is not an attorney and is not authorized to represent others. An individual who is not admitted to practice law is "not authorized to appear in any court to represent a third party."Guajardo v. Luna, 432 F.2d 1324 (5th Cir. 1970); La. Rev. Stat. 37:213. The Court notes that the unauthorized practice of law can result in criminal sanctions. Accordingly,
IT IS ORDERED that the Motion to Dismiss (Doc. 6) is GRANTED; the claims of Gary Juengain, Ruby Kirklin Juengain and Irene Kirklin are DISMISSED with prejudice; the claims of Calvin Grace are DISMISSED without prejudice.