WIENER, Circuit Judge:
The FDIC, as statutory successor to the RTC, appeals the district court's grant of summary judgment dismissing the suit filed by the RTC in June 1993 against fifteen (15) former officers and directors (collectively, Appellees) of Capital-Union Savings, F.A. The gravamen of the district court's judgment was its determination that the claims asserted against Appellees for breach of their fiduciary duties sounded in unintentional tort, i.e., negligence (or gross negligence), and were thus time barred by Louisiana's one-year prescriptive period; that none of the claims against Appellees — including the claim arising from the repurchase of another thrift's participation in the so-called Esplanade Mall Loan
The district court concluded that its decision was mandated by our holding in FDIC v. Barton,
The principal thrust of the FDIC's position on appeal is that, irrespective of what we held in Barton, we are now Erie-bound to abandon that case as binding precedent and follow the subsequent, purportedly opposite holding of a Louisiana intermediate court of appeal in Theriot v. Bourg.
The Louisiana Supreme Court denied writs in Theriot; and it is clear that in doing so the court was aware of our Barton opinion, as it was argued in support of the writ application. What effect, if any, Barton may have had in the decision to deny writs is unknown. What is known, however, is that Theriot did not involve the issue of time bar. Neither can the opinion in Theriot be read as a clear and unequivocal holding — as the FDIC would have us read it — that (1) the version of the state statute defining the fiduciary duty of officers and directors of banks and savings and loan associations then in effect created a single duty, (2) such duty was personal under the Louisiana scheme rather than general or delictual, or (3) the prescriptive period applicable to any breach of the duty, whether it be the facet implicating loyalty and good faith or the facet comprising the "prudent man" rule, was subject to the prescriptive period of ten years.
Our well-known standard of review of the district court's grant of summary judgment is de novo.
Even though federal subject matter jurisdiction of the case we review on appeal today is not grounded in diversity of citizenship, we nonetheless apply the rules of interpretation that have evolved since Erie Railroad v. Tompkins
Among the "other ... data" that might contribute to our remaining unconvinced that the Louisiana Supreme Court would decide contrary to our decision in Barton is the fact that the Louisiana statutes that delineate the fiduciary duties of an officer or director of a bank or other financial institution were amended in 1992 by legislation (which, incidentally, appears to conform to our holding in Barton) clarifying that an action for the breach of an officer's or director's duty of care (including a breach based on gross negligence) has a different prescriptive period than a breach of the duty of good faith (intentional breaches of the duty of loyalty, and acts or omissions of bad faith, fraud, or violations of law). The clarifying legislation specifies that negligence actions against such fiduciaries must be filed within one (1) year following the date of the act, omission, or neglect, or within one (1) year after it was or should have been discovered, but in no case later than three (3) years from the date of the act, omission or neglect. On the other hand, that legislation specifies a two-year prescriptive period and four-year preemptive period for such fiduciaries' intentional and fraudulent breaches of the duty of good faith of such fiduciaries.
And, if we are chary to rely on — much less be bound by — the holding of one intermediate state appellate court as the harbinger of such a future ruling by the state's highest court, we are doubly so when, as now, the state in question is Louisiana, where the primary sources of law are its constitution, codes, and statutes and the decisions of its courts are secondary sources of law until and unless the numbers and unanimity of such decisions achieve the force of law through the Civil Law doctrine of jurisprudence constante.
We are, of course, a strict stare decisis court. One aspect of that doctrine to which we adhere without exception is the rule that one panel of this court cannot disregard, much less overrule, the decision of a prior panel.
This general rule, as quoted from Pruitt, arises from identical language in Farnham v. Bristow Helicopters, Inc.,
Neither Broussard nor Lee clarified precisely what is meant by "a subsequent state court decision ... which makes this Court's [prior] decision clearly wrong," but, at a minimum, a contrary ruling squarely on point is required. We read Broussard and Lee to contemplate a ruling from a state's highest court only, by virtue of the close proximity of the references to such courts and statutory amendments. Admittedly, Farnham relied on two subsequent contrary state appellate court decisions to justify disregarding our prior precedent; yet even in Farnham there were ultimately four intermediate appellate court decisions (two prior and two subsequent) from three of Louisiana's five courts of appeal, and the holdings in all four cases were squarely contrary to our precedent.
We conclude then, that when our Erie analysis of controlling state law is conducted for the purpose of deciding whether to follow or depart from prior precedent of this circuit, and neither a clearly contrary subsequent holding of the highest court of the state nor a subsequent statutory authority, squarely on point, is available for guidance, we should not disregard our own prior precedent on the basis of subsequent intermediate state appellate court precedent unless such precedent comprises unanimous or near-unanimous holdings from several — preferably a majority — of the intermediate appellate courts of the state in question.
But even in the alternative that we would be prone to disregard our own precedent on the basis of nothing more than one contrary opinion of but one of the several intermediate courts of appeal of the state in question, we would not do so in this case. For even a cursory comparison of the issues, discussions, and holdings in Barton and Theriot demonstrates beyond cavil that the pure holding of Theriot is not "clearly contrary" to the holding of Barton. In a nutshell, Theriot recognizes that the state statutory language under examination in both cases requires officers and directors to discharge their fiduciary duties in ways that are free of, inter alia, negligence.
Inasmuch as we agree with the district court's conclusion that all claims asserted by the FDIC (including the claim emanating from the Esplanade Mall matter) sound in negligence, it follows that the district court correctly determined that it was constrained by our decision in Barton to hold that those claims are barred by the one-year period of prescription for delictual actions. And, as we reach the same conclusion in our de novo review regarding the nature of the FDIC's claims, and — like the district court — are bound by the holding in Barton, we affirm in all respects the district court's grant of summary judgment dismissing the claims of the FDIC against Appellees.