By Blake Crohan
In Griffin v. Hess Corporation, 2017 WL 5125657 (5th Cir. Nov. 3, 2017) (unpublished) the U.S. 5th Circuit reaffirmed the difficult burden of proving that prescription should be excused under the Louisiana jurisprudential exception of contra non valentem non currit preaescriptio. Contra non valentem “means that prescription does not run against a person who could not bring his suit.”
The Plaintiffs in Griffin filed suit seeking unpaid royalties allegedly owed to their father pursuant to an oil, gas, and mineral lease that their great-grandfather and several other members of the Griffin family granted in 1935. The Plaintiffs alleged that production occurred on the property between 1940 and 1969, during which time several members of the Griffin family received royalty payments, except their father. Between 1983 and 1984 the Plaintiffs began researching the history of the oil wells located on the property. Their research discovered documents identifying the Defendants’ corporate predecessors, an abstract of title that was commissioned in connection with potential oil company operations, and documents and pay stubs from previous royalty payments related to the Plaintiffs’ property. Around that same time, the Plaintiffs hired an attorney to represent them with respect to these claims. The Plaintiffs continued their investigation of the allegedly unpaid royalties over the next two decades, and in 2008 reached out to ExxonMobil directly regarding their unpaid royalty claims. Ultimately, ExxonMobil informed the Plaintiffs that it had no sales under the referenced lease after July 1954, found no outstanding royalty payments held in suspense, and that the property listed was not under lease to ExxonMobil. The Plaintiffs disagreed and filed suit on October 14, 2014 in federal court in the Western District of Louisiana against Hess Corporation and ExxonMobil (“Defendants”).
In the district court, the Defendants filed a motion for summary judgment arguing that the Plaintiffs’ claims for unpaid royalties were prescribed and barred under Louisiana Civil Code article 3494(5), which provides that the prescriptive period for unpaid royalties is three years. The Defendants asserted that the Plaintiffs acknowledged that they first became aware of their claims for the unpaid royalties between 1983 and 1984—more than thirty years prior to filing suit.
In order to survive Defendant’s motion, the Plaintiffs had to prove that contra non valentem applied to excuse them for not filing suit earlier. The district court explained that “[s]uit need not be filed when there is a mere apprehension that something might be wrong,” but that prescription commences when “the plaintiff has actual or constructive knowledge of the” wrongful act. The Plaintiffs argued that “many circumstances [justified Plaintiffs’] delay in filing this lawsuit.” Specifically, they argued that between 1983 and 1984 they were merely seeking out who was responsible for the payment of royalties and that many members of their family were uneducated. The district court was not persuaded. The district court held that “[b]y at least 2008, Plaintiffs had received the assistance of an attorney and had collected information, both documentary and oral, sufficient to excite attention and prompt further inquiry as to the unpaid royalties alleged owed to their father.” Thus, the Plaintiffs claims were dismissed as prescribed.
On appeal to the U.S. 5th Circuit, the Plaintiff-Appellants argued that “it was impossible to bring this lawsuit prior to . . . filing the  complaint in federal court, because in light of the uncertainty of circumstances surrounding their father’s claim, they had no basis to file any claim on behalf of their father.” While the 5th Circuit noted that “their level of education may, by itself, support application of [contra non valentem], the court cannot disregard the substance of their actions which do not indicate any inability to bring this claim.” The Court explained that Appellants were adults when they were informed that they may be entitled to unpaid royalties, they investigated their ownership rights extensively, and knew that Hess Corporation had a past ownership interest in the property. Further, the Court found it compelling that Appellants received advice and meaningful information from three different lawyers on various occasions through their investigation. Nevertheless, Appellants waited until 2008 to contact ExxonMobil and then waited until 2014 to file suit. Finally, the Court noted that the appropriate focus on the commencement of prescription “is not when a plaintiff develops a strong legal case but when he has sufficiently reasonable knowledge of his legal options.” The Court affirmed the district court’s granting of summary judgment in favor of the Defendant-Appellees.
The 5th Circuit’s opinion in Griffin highlights two important aspects of Louisiana law. First, plaintiffs must be diligent in their efforts to initiate a lawsuit in order to preserve their claims. While courts are cognizant of the lay persons’ knowledge of legal claims, plaintiffs cannot wait until they have a “strong legal case” or know all of the facts necessary to prove their claim. Second, prescription is a strong defense mechanism for defendants. While the exception of contra non valentem remains a viable option to defeat prescription, courts applying Louisiana law will strictly construe the doctrine to ensure that its use is not abused.