RULING ON DEFENDANT'S MOTION TO DISMISS
POLOZOLA, District Judge.
This matter is before the Court to determine whether the suit filed by the City of Plaquemine against its former attorney for legal malpractice is premature. The facts of the case are not in dispute.
Wallace Edward Brand (Brand) was engaged by the City of Plaquemine, Louisiana (Plaquemine), to render legal advise and services to the city for a variety of matters. During the course of representing the City of Plaquemine, Brand negotiated and drafted an electrical power supply contract between the city and Pioneer Chlor Alkali Company (Pioneer). Subsequently, a billing dispute arose between Pioneer and Plaquemine. The City of Plaquemine filed suit against Pioneer in the Eighteen Judicial District Court for the Parish of Iberville for a breach of contract.
Plaquemine also filed a separate suit in state court against Brand alleging attorney malpractice in connection with the drafting of the contract. Brand, a citizen of Virginia, properly and timely removed the suit to this Court based on diversity jurisdiction under 28 U.S.C. § 1332. Venue is proper pursuant to 28 U.S.C. § 1391(a).
The defendant has now filed a motion to dismiss pursuant to Rule 12(b)(6) of the
In response to the defendant's motion, the plaintiff argues that the suit is timely because the prescriptive period has begun to run on the malpractice action. Plaquemine relies on Rayne State Bank & Trust Co. v. National Union Fire Insurance Co.
The plaintiff acknowledges that the primary purpose for filing this legal malpractice action at this time is to avoid any prescription problems in its suit against Brand. In both its complaint and memorandum in opposition to the motion to dismiss, the plaintiff requests that the Court stay this action until the state court suit is resolved.
The Louisiana courts have consistently held that attorney malpractice is a delictual action which is subject to a one year liberative prescription period under Article 3492 of the Louisiana Civil Code, which provides that "prescription commences to run from the day injury or damage is sustained."
As noted earlier, the plaintiff relies on Rayne to support its position. In that case, the Louisiana Supreme Court found that a bank was damaged due to the invalidity of a chattel mortgage drafted by its attorney. The bank had attempted to foreclose on the mortgage even though it knew the mortgage was defective. Subsequently, the debtors filed for bankruptcy and filed an adversary proceeding to invalidate the mortgage. The court held that the prescriptive period began to run when the adversary proceeding was commenced to invalidate the mortgage. The court explained that:
While this Court does not dispute the legal principles set forth by the Louisiana Supreme Court in Rayne,
Thus, the Court finds that because Plaquemine's suit against Brand for alleged legal malpractice is premature, it fails to state a claim upon which relief may be granted.
Therefore, IT IS ORDERED that the motion of Wallace Edward Brand to dismiss be and it is hereby GRANTED. Judgment shall be entered dismissing plaintiff's suit without prejudice.