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In summarizing the "simple, direct, abbreviated test" set out in Sec-
tion 1988, the Fifth Circuit stated that the Court first looks to " (a) federal
law and if it is found wanting the court must look to (b) state law currently in
3
effect".
It is well established, of course, that a federal district court must
follow a decision of its own Court of Appeals. 1B Moore's Federal Practice par.
4.02[1] at p. 61. This Court itself applied that rule in Moses vs Washington
Parish School Board, 276 FS 834, 838 (fn. 7) (ED La.-1967), and held that it was
bound by the Fifth Circuit's view of the issue there before it. See also Man-
ship vs United States, 163 FS 737, 739 (ED La.-1958); Shehee vs Aetna Casualty
& Surety Co., 122 FS 1, 7 (WD La.-1954).
Since, as the Fifth Circuit repeatedly noted in Brazier, there is a
"gap" in the federal law as to survivorship of a pending civil rights action af-
ter the plaintiff's death, and the law is "deficient" in that regard, it must
therefore follow that this Court must, under the very language of the Civil
4
Rights Act itself, look to and follow the law of Louisiana in this case.
As
previously stated, that law recognizes survival of such an action as the instant
one but, as is customary in most all of such survival statutes, only in those
2/
293 F2d at p. 408 (Emphasis supplied). In Pritchard, supra, the Eighth Cir-
cuit also held that "since no federal statute specifically deals with the
substantive issue of survival, in the situation here presented no inconsistency
results from the application of the state survival law". 289 F2d at p. 157.
3,
293 F2d at p. 409 (Emphasis supplied). The Eighth Circuit, in Pritchard,
supra, concluded: "Section 1988 indicates that in situations such as this,
resort should be had to state law to provide an appropriate remedy. In the ab-
sence of a specific statute, such as § 1988, federal courts have determined the
rights of the parties, including the issue of survival, on the basis of state
law. We believe that the court should look to the Arkansas law to determine the
survival issue here present". 289 F2d at p. 158 (emphasis supplied)
4,
In Holmes vs Silver Cross Hospital of Joliet, Illinois, 340 FS 125, 128-129
(ND Ill.-1972), the court cited with approval, and followed "as control-
ling", the holding in Brazier that "as a matter of statutory construction of 42
USC §§ 1983 and 1988, state law in relation to survival of actions must be as-
certained and adopted as the law governing the issue of survival of a federal
rights action in the absence of any specific Congressional enactment on the sub-
ject". (Emphasis supplied). See also Evain vs Conlisk, 364 FS 1188 (ND Ill.-
1973), aff'd 498 F2d 1403 (CA 7-1974) without opinion.
NW
12640 DocId:59167994 Page 119
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"ocrText": "-3-\n2/\nis currently available to overcome these deficiencies.\nIn summarizing the \"simple, direct, abbreviated test\" set out in Sec-\ntion 1988, the Fifth Circuit stated that the Court first looks to \" (a) federal\nlaw and if it is found wanting the court must look to (b) state law currently in\n3\neffect\".\nIt is well established, of course, that a federal district court must\nfollow a decision of its own Court of Appeals. 1B Moore's Federal Practice par.\n4.02[1] at p. 61. This Court itself applied that rule in Moses vs Washington\nParish School Board, 276 FS 834, 838 (fn. 7) (ED La.-1967), and held that it was\nbound by the Fifth Circuit's view of the issue there before it. See also Man-\nship vs United States, 163 FS 737, 739 (ED La.-1958); Shehee vs Aetna Casualty\n& Surety Co., 122 FS 1, 7 (WD La.-1954).\nSince, as the Fifth Circuit repeatedly noted in Brazier, there is a\n\"gap\" in the federal law as to survivorship of a pending civil rights action af-\nter the plaintiff's death, and the law is \"deficient\" in that regard, it must\ntherefore follow that this Court must, under the very language of the Civil\n4\nRights Act itself, look to and follow the law of Louisiana in this case.\nAs\npreviously stated, that law recognizes survival of such an action as the instant\none but, as is customary in most all of such survival statutes, only in those\n2/\n293 F2d at p. 408 (Emphasis supplied). In Pritchard, supra, the Eighth Cir-\ncuit also held that \"since no federal statute specifically deals with the\nsubstantive issue of survival, in the situation here presented no inconsistency\nresults from the application of the state survival law\". 289 F2d at p. 157.\n3,\n293 F2d at p. 409 (Emphasis supplied). The Eighth Circuit, in Pritchard,\nsupra, concluded: \"Section 1988 indicates that in situations such as this,\nresort should be had to state law to provide an appropriate remedy. In the ab-\nsence of a specific statute, such as § 1988, federal courts have determined the\nrights of the parties, including the issue of survival, on the basis of state\nlaw. We believe that the court should look to the Arkansas law to determine the\nsurvival issue here present\". 289 F2d at p. 158 (emphasis supplied)\n4,\nIn Holmes vs Silver Cross Hospital of Joliet, Illinois, 340 FS 125, 128-129\n(ND Ill.-1972), the court cited with approval, and followed \"as control-\nling\", the holding in Brazier that \"as a matter of statutory construction of 42\nUSC §§ 1983 and 1988, state law in relation to survival of actions must be as-\ncertained and adopted as the law governing the issue of survival of a federal\nrights action in the absence of any specific Congressional enactment on the sub-\nject\". (Emphasis supplied). See also Evain vs Conlisk, 364 FS 1188 (ND Ill.-\n1973), aff'd 498 F2d 1403 (CA 7-1974) without opinion.\nNW\n12640 DocId:59167994 Page 119"
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