* Pursuant to 5 t h Cir. R. 47.5, the court has determ ined th at this opinio n should not be published and is not precedent except under the limit ed circumstances set fo rth in 5 th Cir. R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED 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, Pl aint iff- Appellant, versus DUANE MORRIS, LLP, Defendant-Appellee.

Appeal from the United States District Court fo r the Eastern District of Louisiana USDC No. 2-03-CV-2363 Before REAVLEY, STEWART, and CLEMENT, Circuit Judges. PER CURIAM: * INTRODUCTION Duane Morri s, LLP (“Duane Morri s”), represented Michael Henry in lit igation against Cisco Sy stems, Inc. (“Cisco”). That lawsuit was dismissed because it was time barred, and Henry filed the inst ant malpractice suit seeking damages from Duane Morri s. The district court dismissed the malpractice suit because it is time barred by Loui siana law. Henry appeals, arguing that Illinois law should govern the claim. We affirm the district court.2 FACTUAL AND PROCEDURAL BACKGROUND Henry, a Loui siana cit izen, hired the law fir m of Duane Morri s, LLP, in 2000 to represent him in lit igation against Cisco. This underlying suit (the “Cisco litigation”) was filed on November 28, 2000, in district court in Loui siana based on diversity jurisdiction and invo lved many claims, including defamation and fraudulent inducement. An amended complaint was filed on February 12, 2001, alleging a theory of continuing tort, in an attem pt to overcom

e an apparent prescription problem. As part of th e discovery leading up to th e amended com plaint , the district court ordered som e docum ents to be filed under seal and allo wed only counsel, not Henry, to have access to the docum ents. Cisco filed a mo tion to dismiss on Septem ber 19, 2001, based on privilege and prescription. The district court granted th e mo tion on February 3, 2006. Henry timely appealed to this court, which affirmed th e district court’s dismissal. Henry v. Cisco Systems, Inc. , 106 F. App’x 235 (5th Cir. 2004). Duane Morri s did not represent Henry th roughout the Cisco lit igation. During the course of th e proceedings, Henry became dissatisfied with Duane Morris and hired new counsel. By October 25, 2001, Henry com

plained to Duane Morri s about concerns wit h their performance, inst ructed them to stop working on th e case, and retained a new lawyer. Duane Morris considered the representation of ficially over on January 21, 2002, when Henry ordered the fir m to release the Cisco lit igation files to his new counsel. In early 2002, Henry consulted a lawyer specifically fo r the purpose of bringing a malpractice suit against Duane Morri s. Aft er this meeting, Henry sent emails to Duane Morris telling the firm that he int ended to file a lawsuit and intimating that he would file such a lawsuit in Louisiana. The

com plaint against Duane Morris was filed on August 21, 2003, in district court in Louisiana. On a1 The statute provides th at th e law to be applied should be “t he law of the state whose pol icies would be mo st seriously impaired if it s law were not applied to th at issue.” LA . C IV . C ODE ANN . art. 3542. In order to make this determination, courts should consider “the pertinent contacts of each state to th e parties and th e events giving ri se to the dispute, including the place of conduct and injury, th e domicile, habitual residence, or place of business of the parties, and the state in which t he relationship, if any, between th e parties was centered ,” as well as the policy goals of deterring wrongful conduct, providing damages fo r injury, and protecting the parties’ justified expectations. Id. 3 s ummary judgment mo tion, th e district court determ ined th at Henry’s malpractice claim was t ime barred under Louisiana law and dismissed the claim. Henry appeals to this court. DISCUSSION This court reviews th e grant of summary judgment de novo. M archesani v. Pellerin-Milnor Corp. , 269 F.3d 481, 485 (5th Cir. 2001). This court also reviews the district court’s determination of state l aw de novo. Id. W hen a federal court sit s in diversity, it applies the choice of law rules of th e 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 . C IV . C ODE ANN . art. 3542. 1 This court applies, as the district court did, Loui siana’s choice of law rules. The Loui siana law of prescription/peremption should generally be applied to all civil suits brought in Loui siana courts, regardless of which state’s law applies to the underlying substance of th e suit. LA . C IV . C ODE ANN . art.3549. If a suit would be time barred under Louisiana law but not under th e laws of th e state whose law applies to the substantive conflict, the suit may be maint ained if “compelling considerations of remedial justice” warrant it

. I d. It i s not necessary at the outset to determ ine whether Loui siana or Illino is malpractice law applies to this cause of action. First, it must2 The law of Illino is would allo w the maint enance of the suit because Illino is has adopted a rule

th at it s two-year statute of limit ations does not begin to run until a tri al 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 determ ined if th e suit can be maint ained at all in light of Loui siana’s statute-of-limitations-like rules. If th e law of Loui siana applies to this claim, then there is no question th at the prescription/peremption laws of Louisiana would apply. LA . C IV . C ODE ANN . art. 3549(A). If the law of Illino is applies to this claim, Loui siana prescription/peremption law would still apply to this claim unless th e action would be allo wed by Illino is law 2 and “compelling considerations of remedial justice” favor allowing the suit to progress. LA . C IV . C ODE ANN . art. 3549 (B)(1). Henry must show that th e int erests of justice favor the adjudication of his claim. Generally, Loui siana courts have int erpreted this provision very narrowly, giving it effect only where “t he mo st extraordinary of circumstances” are present. Brow n 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) (int erpreting th e of

ficial com ment s on LA . C IV . C ODE ANN . art. 3549)). The provision is based on the Restatement (Second) of Conflict of Laws and takes it s meaning from that document. 1991 REVISION C OMMENTS TO LA . C IV . C ODE ANN . ART . 3549; see also Brow n , 22 0 F.3d at 420. The Restatem ent suggests relief would be appropri ate when “t hrough no fault of the plaint iff an alt ernative fo rum is not available

. . . where jurisdiction could be obtained over the defendant . . . or where fo r

som e reason a judgment obtained in the other state having jurisdiction would be unenforceable in oth er states.” RE ST . (S ECOND ) OF C ONFLICT OF L AWS , § 142 cm t. f (1986 Rev. Supp. Mar. 31,5

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.” B row n , 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); L andry , 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 Loui siana, Loui siana’s prescription/peremption law applies to this claim even if Illino is malpractice law applies to the substance of the claim. Next, w e must consider which prescriptive period applies to this case. When reviewing a district court’s determ

inat io n of state law while sitting in diversity, this court should reso lve any questions of Loui siana law “t he way th e Loui siana Supreme Court would int erpret the statute based upon prior precedent, legislat io n, and relevant com ment ary .” Stephens v. Witco Corp

. , 198 F.3d 539, 541 (5th Cir. 1999). LA . REV . S TAT . ANN . § 9:5605 is Loui siana’s s tatute governing the prescriptive period for malpractice suits. The statute appl ies to “any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organizat io n, association, enterprise, or oth er com mercial business or prof

essional com

binat io n authorized by the laws of this state to engage in the practice of law.” I d. Duane Morri s is no t l

icensed to practice as

a fir m in Loui siana. Henry urges that this provision should only be applied to attorneys licensed to practice in Loui siana, while Duane Morri s argues th at it should be applied to anyo ne not prohibited from practicing in Louisiana. The Louisiana Supreme Court has not decided this issue.3 Because of th e amended complaint, Henry could argue that Duane Morris was engaged in

a continual representation of him such th at Duane Morri s prevented him from pursuing his claim by assuring him th at th ey would fix th e malpractice. S ee 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 th e lat est, meaning th at any possible contra non valentem exception under Lima still does not render Henry’s suit timely.

4 The docum

ents filed under seal in the Cisco lit igation are ir relevant because they had no effect on Henry’s knowledge of Duane Morris’s alleged malpractice. 6 Because th ere is no guidance on the applicabilit y of § 9:5605 to the facts at issue here, we decline to determ

ine ho w the Louisiana Supreme Court would rule on this issue. S ee, 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 . C IV . C ODE . ANN . art. 3492, which applies if a mo re specific peremptory period does not apply. H arvey v. Dixie Graphics, Inc. , 593 So.2d 351, 353-54 (La. 1992). The doctrine of c ontra non valentem is applicable to this prescriptive period. I d. at 354. Therefore, if Henry could show th at he was unaware of his cause of action until a year before the date he filed th e malpractice suit, he could escape the application of article 3492. In H arvey , the Loui siana Supreme Court int erpreted article 3492's application to a malpractice claim that arose prior to the passage of § 9:5605 and held th at a claim arose when the plaint iff began suff ering damage from a known act of malpractice. I d. 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 th e malpractice. I

d. 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 com plaint in August 2003. 3 Even if article 3492 applies, Henry filed his malpractice suit after the prescriptive period had run. 4 CONCLUSION7

Because Henry filed his malpractice suit aft er the prescriptive/peremptive period allo wed by Loui siana law, we affirm the district court’s dismissal of this case.