SARAH S. VANCE, District Judge.
Before the Court is defendants Rogers-Premier Enterprises, LLC's, and Liberty Insurance Corporation's motion to dismiss plaintiff Sean Chiasson's complaint.
On October 25, 2017, the plaintiff, Sean Chiasson, was covering a load of cargo in a commercial trailer with plastic sheeting at National Gypsum Services Company on behalf of his employer, Rogers-Premier Enterprises, LLC.
On March 19, 2019, twelve days after the earlier suit was dismissed, the plaintiff filed this action against his employer at the time of the injury, Rogers-Premier, as well as its insurer, Liberty Insurance.
In a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court must accept all well-pleaded facts as true and view the facts in the light most favorable to the plaintiff. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The Court must resolve doubts as to the sufficiency of the claim in the plaintiff's favor. Vulcan Materials Co. v. City of Tehuacana, 238 F.3d 382, 387 (5th Cir. 2001). But to survive a Rule 12(b)(6) motion, a party must plead "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The claim must be dismissed if there are insufficient factual allegations to raise the right to relief above the speculative level, Twombly, 550 U.S. at 555, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (2007). The Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 679.
On a Rule 12(b)(6) motion, the Court must limit its review to the contents of the pleadings, including attachments thereto. Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014). The Court may also consider documents attached to a motion to dismiss or an opposition to that motion when the documents are referred to in the pleadings and are central to a plaintiff's claims. Id.
Where it is evident from the pleadings that the action is time-barred, and the pleadings fail to raise some basis for tolling or the like, the Court may dismiss a claim under Rule 12(b)(6). Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003). "Ordinarily, the party pleading prescription bears the burden of proving that the plaintiff's claims have prescribed." Terrebonne Par. Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 878 (5th Cir. 2002). But, once prescription is evident from the pleadings, the burden shifts to the plaintiff to demonstrate that prescription was either suspended or interrupted. Id.; see also In re Med. Review Panel for Claim of Moses, 788 So.2d 1173, 1177 (La. 2001).
When the basis of federal jurisdiction is diversity of citizenship, a federal court applies the statute of limitations that the forum state would apply. Huss v. Gayden, 571 F.3d 442, 449-50 (5th Cir. 2009) (citing Guar. Trust Co. v. York, 326 U.S. 99, 109-10 (1945)). Therefore, as both parties recognize, Louisiana prescription law applies to determine whether the plaintiff's claims against the defendants are time-barred.
Plaintiff's tort claim is a delictual action, and therefore the prescriptive period is one year. La. Civ. Code. art. 3492. The prescriptive period begins to run "from the day the injury or damage is sustained." Id. Here, the plaintiff was injured on October 25, 2017.
Chiasson argues that the prescriptive period on his claims against defendants was interrupted when he filed the earlier lawsuit against National Gypsum because he asserts that defendants are jointly or solidarily liable with National Gypsum and National Gypsum's insurer.
To be jointly liable under Louisiana law, two tortfeasors must have both caused a plaintiff's injury. See La. Civ. Code art. 2324(B). Here, Chiasson has not alleged sufficient facts to show that National Gypsum and the defendants are joint tortfeasors, because Chiasson has not alleged any facts to show that National Gypsum caused his injury. Instead, the plaintiff bases his claim of joint liability solely on legal conclusions. Chiasson has alleged only that Rogers-Premier's conduct "was joined by the negligent and intentional conduct of National Gypsum, making them joint tortfeasors."
Chiasson's complaint also references a contract between National Gypsum and Rogers-Premier, which was a master service agreement governing the relationship between National Gypsum and Rogers-Premier. But the plaintiff does not allege that this contract is the basis for the joint liability of Rogers-Premier and National Gypsum.
Chiasson also alleges that Rogers-Premier and Liberty Insurance are liable in solido with National Gypsum and its insurer. This claim is more difficult to prove than joint liability, as defendants are liable in solido only when they conspire together to commit an intentional or willful act. La. Civ. Code art. 2324(A). A conspiracy requires a "meeting of the minds or collusion between the parties for the purpose of committing wrongdoing" and can be proved by showing actual knowledge of the parties, overt actions taken together, or the knowledge of one co-conspirator of the impropriety of the actions taken by the other co-conspirator. See Curole v. Delcambre, 224 So.3d 1074, 1082 (La. App. 3 Cir. 2017). Here, the plaintiff alleges no facts that can lead to the conclusion that there was any sort of meeting of the minds for the purposes of wrongdoing between National Gypsum and Rogers-Premier or Liberty Insurance. Therefore, the Court cannot find the defendants in the earlier suit in solido liable with the defendants here.
Because the plaintiff relies upon legal conclusions and fails to allege sufficient factual allegations by which the Court can find joint or in solido liability between the defendants in the earlier suit and Rogers-Premier and Liberty Insurance, the Court cannot find that that the earlier suit interrupted prescription against Rogers-Premier and Liberty Insurance. The Court therefore finds that the plaintiff's claims against the defendants are prescribed.
Chiasson also requests leave to amend his complaint "to more clearly state facts demonstrating that prescription has not run."
For the foregoing reasons, the Court GRANTS the defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). This dismissal is WITHOUT PREJUDICE and with leave to file an amended complaint within twenty-one days of this order.