Henry v. Duane Morris LLP

*Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
December 12, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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.

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2
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, Henrycomplained 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

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1The 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
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

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2The 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
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,

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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.

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3Because 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.
4The 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 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

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7
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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