Mercato Elisio, L.L.C. v. John Deveney

Case: 17-30202 Document: 00514271082 Page: 1 Date Filed: 12/13/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-30202
Fifth Circuit
FILED
December 13, 2017
Lyle W. Cayce
MERCATO ELISIO, L.L.C., Clerk
Plaintiff - Appellant
v.
JOHN J. DEVENEY, III, improperly named John Deveney;
DEVENEY COMMUNICATION CONSULTING, L.L.C.;
CHRIS COSTELLO, individually and as employee of Deveney
Communication Consulting, L.L.C.,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:15-CV-563
Before HIGGINBOTHAM, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
The court has carefully considered this appeal in light of the briefs,
oral argument and pertinent portions of the record. Having done so, we
conclude that the claims appellant asserts against these appellees accrued,
under either federal or state law, as early as August 2012 or April 2013,
triggering the commencement of the one-year Louisiana prescription
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-30202 Document: 00514271082 Page: 2 Date Filed: 12/13/2017
No. 17-30202
period. Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir. 1995);
Elzy v. Roberson, 868 F.2d 793, 794 (5th Cir. 1989); Ziegler v. Hous. Auth.
Of New Orleans, 118 So. 3d 442, 452 (La. App. 4 Cir. 2013). Appellant’s suit,
filed on February 20, 2015, is well outside this period. Further, there was
no basis for equitable tolling of prescription because appellees’ actions did
not amount to the level of active concealment necessary to implicate the
jurisprudential exception, contra non valentem. F.D.I.C. v. Barton, 96 F.3d
128, 135 (5th Cir. 1996) (to suspend the running of the prescriptive period
there must be evidence of “fraud, deceit, misrepresentation or concealment
by the defendants that led to the plaintiff’s failure to file the claim within
the statutory period”). These conclusions were well stated in the district
court’s opinion, with which we essentially agree. JUDGMENT
AFFIRMED.
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