author: PATRICK E. HIGGINBOTHAM, Circuit Judge:

text:
    Jackie SMITH, Plaintiff-Appellee, v. TEXAS CHILDREN’S HOSPITAL, Defendant-Appellant, and UNUM Life Insurance Company, Defendant.
    No. 95-20415.
    United States Court of Appeals, Fifth Circuit.
    May 15, 1996.

      Victor Raul Rodriguez, Houston, TX, for Jackie Smith, plaintiff-appellee.
    Thomas Howard Wilson, Suzanne Lehman Johnson, Vinson & Elkins, Houston, TX, for Texas Children’s Hospital, defendant-appellant.
    Andrew George Jubinsky, Figari & Davenport, Dallas, TX, for UNUM Life Insurance Company, defendant.
    Before POLITZ, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.
   PATRICK E. HIGGINBOTHAM, Circuit Judge:

Texas Children’s Hospital appeals the district court’s order remanding to state court a state-law fraudulent-inducement claim. We must decide whether Smith has preserved a fraudulent-inducement claim, and, if so, whether it is nevertheless preempted by the broad federal reach of ERISA We conclude that Smith’s claim may escape ERISA preemption if preserved, but vacate and remand because of uncertainties in the proceedings below as to whether Smith has actually preserved it.

I.

Jackie Smith alleges the following. She started working at St. Luke’s Hospital in February 1991 and qualified for insurance benefits with St. Luke’s by May 1991, after the elimination period for preexisting conditions. Later that year, Texas Children’s Hospital, a sibling corporation of St. Luke’s, persuaded Smith to transfer her employment to Texas Children’s by promising more pay, a supervisory position, and the transfer of all of her employment benefits, including long-term disability benefits. According to Smith, Texas Children’s made such assurances both orally and in certain written documents. Smith transferred to Texas Children’s on October 1,1991.

In October 1991, Smith was diagnosed with multiple sclerosis. She was disabled by September 1992. Around August or September of 1992, Smith’s supervisor suggested to Smith that it was unsafe for her to continue working at Texas Children’s, and that she would not have trouble acquiring long-term disability benefits from UNUM Life Insurance Company, the claims adjuster for Texas Children’s. Smith stopped working and was put on long-term disability in September 1992. She was terminated from employment in April 1993.

In January 1993, Smith received her first benefit check for the period of December 11, 1992, to January 1, 1993. Immediately thereafter, UNUM called Smith and told her not to cash the check. UNUM had determined that the last day of Smith’s elimination period was December 31, 1991. UNUM found that Smith’s multiple sclerosis, which was diagnosed in October 1991, was a preexisting condition as of December 31. Hence, UNUM determined that Smith did not qualify for benefits from Texas Children’s.

Smith sued Texas Children’s in Texas state court, alleging state-law claims of fraudulent inducement and breach of contract. Texas Children’s removed the case to federal court on the ground that Smith’s claims arose under ERISA. Texas Children’s then moved for summary judgment, whereupon the district court ordered Smith to amend her complaint to conform to an ERISA claim and to join any additional parties. Smith complied and filed her First Amended Complaint, asserting ERISA claims and naming UNUM as a defendant. In their answers to this amended complaint, Texas Children’s and UNUM asserted the affirmative defense of ERISA pre-emption and argued that Smith’s claims were not cognizable under ERISA.

In April 1995, the district court entered final judgment for Texas Children’s on Smith’s ERISA and common law estoppel claims, but remanded her fraudulent-inducement claim to state court. Texas Children’s filed a motion under Rule 59(e) seeking reconsideration of the order of remand and dismissal of Smith’s suit against Texas Children’s in its entirety. The district court denied this motion. The defendants now appeal the district court’s remand order.

II.

We first address our jurisdiction. The district court’s Summary Judgment Memorandum explained its order as follows:

[T]he Court remands the case to state court because the plaintiffs claims for damages for fraudulent inducement survives the ERISA defense. This is so because the plaintiff was entitled to rely upon the representation that benefits were available to her, if such representations were made. Because she did not qualify for the benefit that was promised, she is entitled to maintain her suit against Texas Children’s Hospital separate and apart from ERISA.

We interpret this explanation to say that the district court was exercising its discretion not to retain jurisdiction over Smith’s pendent state claims after having granted summary judgment for Texas Children’s on her federal ERISA claims. We therefore have jurisdiction to review the district court’s remand order. See Burks v. Amerada Hess Corp., 8 F.3d 301, 303-04 (5th Cir.1993).

III.

Texas Children’s argues that Smith’s First Amended Complaint did not restate a fraudulent-inducement claim, and, alternatively, that any such claim is preempted by ERISA. As we will explain, we are persuaded that Smith’s amended complaint alleges facts that may give rise to a fraudulent-inducement claim that is not preempted by ERISA. However, since it is not clear whether Smith has adequately preserved her state-law fraudulent-inducement claim, we remand this case to the district court for a decision on whether to allow Smith to amend her complaint to clarify her allegations.

A.

While a district court may exercise its discretion to remand a case if it determines that federal jurisdiction has disappeared, it “has no discretion to remand a case in which a federal claim still exists.” Burks, 8 F.3d at 304. We review as a matter of law the question whether ERISA preempts Smith’s fraudulent-inducement claim. See id. Remand is appropriate only if a set of facts can be adduced under the allegations in Smith’s First Amended Complaint that give rise to a state-law claim not preempted by ERISA.

ERISA by its terms expressly “supercede[s] any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a). “A state law ‘relates to’ an employee benefit plan ‘if it has a connection with or reference to such plan.’” Rozzell v. Security Servs., Inc., 38 F.3d 819, 821 (5th Cir.1994) (quoting Shaw v. Delta Air Lines, 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983)). Thus, ERISA preempts a state law claim “if (1) the state law claim addresses an area of exclusive federal concern, such as the right to receive benefits under the terms of an ERISA plan; and (2) the claim directly affects the relationship between the traditional ERISA entities — the employer, the plan and its fiduciaries, and the participants and beneficiaries.” Hubbard v. Blue Cross & Blue Shield Ass’n, 42 F.3d 942, 945 (5th Cir.1995).

ERISA’s preemption language “is deliberately expansive, and has been construed broadly by federal courts.” Id. “Nevertheless, the reach of ERISA preemption is not limitless.” Rozzell, 38 F.3d at 822. “[S]ome state actions may affect employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.” Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. at 2901 n. 21. Thus, if Smith’s fraudulent-inducement claim is based upon a state law that “has a connection with or reference to” her ERISA plan with Texas Children’s, ERISA preempts it. On the other hand, if her claim affects that plan “in too tenuous, remote, or peripheral a manner,” it is not preempted.

To the extent that Smith is claiming that she is entitled to disability benefits under Texas Children’s ERISA plan, her claim is preempted. Our case law teaches that a state-law claim by an ERISA plan participant against her employer is preempted when based upon a denial of benefits under the defendant’s ERISA plan. See Cefalu v. B.F. Goodrich Co., 871 F.2d 1290, 1292-97 (5th Cir.1989); Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1217-20 (5th Cir.1992); Perdue v. Burger King Corp., 7 F.3d 1251, 1255-56 (5th Cir.1993).

Here, however, Smith’s fraudulent-inducement claim is not based solely upon Texas Children’s denial of benefits to her under its ERISA plan. Rather, Smith also alleges that she gave up her accrued benefits at St. Luke’s in reliance upon Texas Children’s alleged misrepresentations. Though ERISA preempts Smith’s claim seeking benefits under Texas Children’s ERISA plan, she may have a separate claim based upon the benefits that she had at St. Luke’s and relinquished by leaving. The difficulty here arises in that Texas Children’s allegedly promised that Smith would have the same benefits at Texas Children’s as she had at St. Luke’s, so the measure , of her injury is the same regardless of whether she pursues recovery of benefits, relinquished or of benefits denied. Stated another way, because of the nature of Texas Children’s alleged assurance — that she would keep the same disability benefits after she transferred to St. Luke’s — the value of the benefits that she gave up by leaving St. Luke’s is equal to the value of any benefits that she could claim under Texas Children’s ERISA plan. But, to the extent that Texas law permits a plaintiff asserting fraudulent-inducement to recover for value relinquished in addition to value not received, Smith may also have a claim based upon the disability benefits relinquished, separate from her claim for benefits under Texas Children’s ERISA plan. The Texas state court can decide the grounds for relief available to Smith under Texas law; we need only decide whether ERISA preempts such a claim for recovery based upon the benefits that Smith gave up by leaving St. Luke’s.

We are persuaded that ERISA preemption would not apply to such a claim. Smith alleges that, because she relied upon misrepresentations by Texas Children’s, she lost a quantifiable stream of income that she would now be receiving had she never left St. Luke’s. Such a claim escapes ERISA preemption because it does not necessarily depend upon the scope of Smith’s rights under Texas Children’s ERISA plan. For example, if Texas Children’s did not have any benefits plan, ERISA would not apply, leaving Smith with a non-preempted claim based upon the benefits relinquished. That Texas Children’s has such an ERISA plan does not alter the nature of her claim, which is based upon benefits given up for purposes of ERISA preemption. The ultimate question of Texas Children’s liability for fraudulently inducing Smith to leave St. Luke’s turns not on the quantum of benefits available at Texas Children’s, but on the question whether Texas Children’s misled Smith when it told her that she would keep what she had.

Though Cefalu illustrates the difficulty of preemption issues under ERISA, we are persuaded that Cefalu does not mandate that ERISA preempts Jackie Smith’s fraudulent-inducement claim against Texas Children’s. Roy Cefalu was terminated from his employment with B.F. Goodrich Company after Tire Center, Inc., purchased that division. Because Cefalu had participated in Goodrich’s retirement benefits plan, a qualified ERISA plan, accepting a job with Tire Center meant that, under the terms of Goodrich’s ERISA plan, he would have been entitled to a continuation of his benefits under the Tire Center’s ERISA plan. Cefalu, 871 F.2d 1290. According to Cefalu, however, he instead chose to become an franchised operator of a Goodrich retail center in reliance upon Goodrich’s oral assurance that he would receive the same benefits as a franchisee as he would as a Tire Center employee. But while Cefalu did retain some retirement benefits under Goodrich’s Special Deferred Vested Pension Plan, made available in connection with his termination, Goodrich later informed him that he would not be entitled to the additional benefits.

Cefalu sued Goodrich for breach of contract. We found that ERISA preempted his claim, emphasizing:

[Cefalu’s] claim has a definite connection to an employee benefit plan. [He] concedes that if he is successful in this suit his damages would consist of the pension benefits he would have received had he been employed by TCI. To compute these damages, the Court must refer to the pension pían under which [Cefalu] was covered when he worked for Goodrich. Thus, the precise damages and benefits which [Cefa-lu] seeks are created by the Goodrich employee benefit plan. To use any other source as a measure of damages would force the Court to speculate on the amount of damages.

Cefalu, 871 F.2d at 1294. In short, Cefalu sought recovery from Goodrich based upon retirement benefits that he claims he should have received as a Goodrich franchisee, which allegedly equaled the benefits that he would have received had he accepted a job with Tire Center. The amount of those benefits not received could only be measured by reference to the benefits that Cefalu did have under his original ERISA plan with Goodrich, his former employer. We concluded that his breach-of-eontract claim against Goodrich was related to Goodrich’s ERISA plan and therefore preempted.

Significantly, Cefalu sought recovery pursuant to an allegedly valid oral contract; he sought to bind Goodrich to its oral contract to extend him benefits that he would have received had he accepted a job with Tire Center. Cefalu could not have asserted a claim based upon benefits given up, since his termination, not Goodrich’s misrepresentation, caused the loss of additional benefits that he previously had under Goodrich’s plan. Put another way, Cefalu was no longer entitled to the continuation of full benefits under Goodrich’s original ERISA plan the moment he was terminated from Goodrich as part of the Tire Center purchase, since the cessation of benefits occurred regardless of what Goodrich did next. Rather, ERISA preempted Cefalu’s claim because he sought to hold Goodrich liable in contract for additional benefits beyond what he had under Goodrich’s ERISA plan, on the ground that Goodrich had allegedly promised him that his benefits as a franchisee would equal what he could have received had he joined Tire Center. Since Tire Center employees received a continuation of the benefits that they had under Goodrich’s ERISA plan, Cefalu’s claim was for a like continuation of the benefits that he had under Goodrich’s original ERISA plan. See, e.g., Rozzell, 38 F.3d at 822 (cautioning that Cefalu “does not, and can not, mean that any lawsuit in which reference to a benefit plan is necessary to compute plaintiffs damages is preempted by ERISA and is removable to federal court”). ERISA thus preempted Cefalu’s claim because he sought recovery of retirement benefits that Goodrich allegedly owed him as a continuation of its ERISA plan.

Here, by contrast, Smith’s fraudulent-inducement claim leaves open the possibility that she may obtain recovery from her second employer, Texas Children’s, based upon her relinquishment of the payments that she would now be receiving had she remained with a different first employer, St. Luke’s. Smith is not suing for disability benefits that Texas Children’s owes her under its ERISA plan. Nor is she suing St. Luke’s for benefits that St. Luke’s allegedly owes her under its benefits plan. Rather, Smith is suing Texas Children’s for vested benefits that she had acquired while employed with her original employer, but then relinquished in reliance upon Texas Children’s alleged misrepresentations.

Thus, for example, had Smith had no benefits before joining Texas Children’s, she could only claim relief based upon benefits to which she was entitled under Texas Children’s ERISA plan. ERISA would preempt such a claim. But, on the other hand, suppose that Smith turned down a $10,000 annual bonus by leaving St. Luke’s, and that she could show that she left St. Luke’s in reliance upon Texas Children’s promise that she would be qualifying for benefits under Texas Children’s ERISA plan valued at approximately $12,000. Then, though a claim for $12,000 in benefits would again be preempted by ERISA, she still might have a non-preempted claim for the $10,000 relinquished bonus if her allegations indicated that Texas Children’s either had no plan or otherwise knew that Smith could not possibly have been covered under whatever plan it did have. Thus, Smith’s entitlement to benefits under Texas Children’s ERISA plan can be considered separately from the question whether Texas Children’s misled her into believing that she would be entitled to benefits under that plan; the former question requires reference to Texas Children’s plan, while the latter focuses on what Texas Children’s told her.

B.

Though we conclude that Smith’s allegations leave room for a fraudulent-inducement claim that is not preempted by ERISA, we are not certain at this time whether she has adequately preserved such a claim in her First Amended Complaint. Because there are some ambiguities regarding the course of the proceedings below as well as the nature of Smith’s state-law claims, and given the possible relevance of the Supreme Court’s recent decision in Varity Corp. v. Howe, — U.S.-, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996), we vacate the district court’s remand order and remand to the district court. On remand, Smith may move for leave to amend her complaint to clarify her allegations and assert her fraudulent-inducement claim, whereupon, if the district court grants leave to amend, it can consider the issue of ERISA preemption and the Supreme Court’s decision in Varity Corp.

TV.

For the foregoing reasons, we VACATE the district court’s order remanding a fraudulent-inducement claim to state court and REMAND for proceedings consistent with this opinion.


source: Caselaw Access Project

author: REYNALDO G. GARZA, Circuit Judge:

license: Public Domain

text:
    Robert W. BROOKS, Plaintiff-Appellee Cross-Appellant v. GEORGE COUNTY, MISSISSIPPI, et al., Defendants, George County, Mississippi, et al., Defendant-Appellants Cross-Appellee, Wilbur Ward and Earl Koskela, Defendants Cross-Appellees.
    No. 94-60619.
    United States Court of Appeals, Fifth Circuit.
    May 16, 1996.

      Daniel H. Fairly, Walter D. Willson, Wells, Marble & Hurst, Jackson, MS, Gerald A Dickerson, Lucedale, MS, for Appellant.
    Geoffrey C. Morgan, Asst. Atty. Gen., Mike Moore, Atty. Gen., Jackson, MS, for Koskela and Ward.
    David C. Frazier, Gordon, Myers, Frazier & Roberts, Pascagoula, MS, Roy W. Pike, David A. Roberts, Pascagoula, MS, for Brooks.

      Before REYNALDO G. GARZA, JOLLY and DUHÉ, Circuit Judges.
   REYNALDO G. GARZA, Circuit Judge:

Today we have entered an order denying the Appellants’ Petition for Rehearing in the above case. However, we withdraw our pri- or opinion on this matter, found at 77 F.3d 834, and substitute the following opinion.

Background

Robert W. Brooks successfully brought claims under the Thirteenth and Fourteenth Amendments of the United States Constitution for his continued incarceration in a county jail eight months after the charges against him had been dropped. Eugene Howell, Sheriff of George County, Mississippi (“Sheriff Howell” or “the Sheriff’), arrested Robert W. Brooks (“Brooks”) in Virginia, where Brooks, who was out on bond, had fled after indictments were returned against him for grand larceny and felony burglary in Mississippi. Brooks was incarcerated in the George County jail on January 21, 1991, and was arraigned on the indictments on January 28,1991.

On or about the same day, Gary Evans, assistant district attorney for the Nineteenth Judicial Circuit, requested that the charges against Brooks be dismissed pursuant to a nolle prosequi order. An order granting the district attorney’s motion was signed on February 4,1991, in Jackson County, Mississippi, by Judge Clinton E. Lockard. On February 5, 1992, the district attorney’s office filed a copy of the order at the George County Circuit Clerk’s office. The order was filed the same date by an employee of the circuit clerk of George County. Evans apparently informed Brooks’s attorney, William T. Bailey, of the state’s intention to seek dismissal prior to making the motion. However, neither the Sheriffs office nor Brooks was notified of the dismissal. Brooks was not released until he discovered and showed the order to Sheriff Howell on October 1, 1991.

In March 1991, during the time period in which he was confined in the George County jail, Brooks requested and was granted trusty status. Brooks specifically asked that he be made trusty. As a trusty, Brooks was not locked down in his cell, but was, instead, allowed the freedom to roam in and out of his cell, Sheriff Howell’s office, the jail and the surrounding grounds area.

While incarcerated, Brooks performed, at his own request, various services for Sheriff Howell, George County and others, including several charitable and benevolent organizations. Brooks performed these services on public property as well as private property. Brooks performed these services for two reasons: (1) he was able to secure his release from jail during the day and (2) Brooks earned extra money by working on the outside. Brooks was not compensated for those services he performed on public property, but on several occasions, was paid money or received goods in exchange for the services he rendered on private property.

Brooks brought an action in the Southern District of Mississippi, Southern Division, on July 1, 1992, against Sheriff Howell and a number of deputy sheriffs of George County; members of the board of supervisors of George County; Earl Koskela, district attorney for the Nineteenth Judicial District; Public Defender William T. Bailey; Wilbur G. Ward, circuit clerk of George County; and other public officials in their official and individual capacities, as well as George County, pursuant. to 42 U.S.C. § 1983. Brooks’s claims were premised upon alleged violations of the First, Fourth, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth Amendments as a result of his incarceration after the nolle prosequi order had been entered in February, 1991. Brooks claimed that he was unlawfully and falsely incarcerated during this period of time. He also alleged that, while incarcerated, he was forced or coerced into working on public and private property, amounting to involuntary servitude under the Thirteenth Amendment. Because he was not always paid for his services, he also claimed a violation of his due process rights under the Fourteenth Amendment.

On motions for summary judgment, the district court dismissed Brooks’s claims of unlawful incarceration arising from the entry of the nolle prosequi order as to all parties. The district court also held that neither the district attorney nor the clerk were subject to any of Brooks’s claims for damages. The remaining parties moved in limine to exclude certain evidence from the trial, notably evidence of Brooks’s status after the entry of the nolle prosequi order. The district court denied the motion. After a five-day trial, the jury returned a verdict for Brooks against Sheriff Howell, James Cooper and George Miller, deputy sheriffs of George County, and George County (collectively, the “Appellants”), awarding compensatory damages in the amount of $70,000, $50,000 of which represented damages concerning Brooks’s claim of involuntary servitude under the Thirteenth Amendment and $20,000 representing lost wages in connection with Brooks’s due process claims under the Fourteenth Amendment. In a bifurcated proceeding, the jury awarded punitive damages against Sheriff Howell and Deputy Miller in their individual capacities in the amount of $5,000 and $500, respectively.

Appellants filed a timely notice of appeal on September 6, 1994. Brooks filed a cross-appeal with respect to the district court’s granting of partial summary judgment on his claims of unlawful incarceration and dismissal of all claims against the district attorney and the clerk. We affirm in part and reverse in part the judgment for Brooks in the manner hereinafter described.

Discussion

Brooks prevailed on his claims under the Thirteenth and Fourteenth Amendments with regard to his work as a trusty while in the George County jail. Appellants argue that these claims should not have gone before the jury. We will discuss in turn the merits of each of these constitutional claims as well as the unlawful incarceration claims Brooks lost on summary judgment and dismissal from the suit of the district attorney and the clerk.

A. Claims Based on Work as a Trusty

1. Thirteenth, Amendment — Involuntary Servitude Claim

Brooks alleged that his choice between staying in jail or working when he was not supposed to be in jail amounted to involuntary servitude. We begin by asking whether the record contained substantial evidence to create a jury question on involuntary servitude. Boeing v. Shipman, 411 F.2d 365, 375 (5th Cir.1969).

The Thirteenth Amendment to the Constitution provides that “[njeither slavery nor involuntary servitude, except as punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.” U.S. Const, amend. XIII, § 1. The Fifth Circuit defines involuntary servitude as “an action by the master causing the servant to have, or to believe he has, no way to avoid continued service or confinement.” Watson v. Graves, 909 F.2d 1549, 1552 (5th Cir.1990). ‘When the employee has a choice, even though it is a painful one, there is no involuntary servitude ... A showing of compulsion is thus a prerequisite to proof of involuntary servitude.” Id.

In Watson, this Circuit held that two inmates who requested to work outside of jail made such a choice voluntarily and presented no Thirteenth Amendment claim. Id. at 1552-1553. The prison context made this choice no less voluntary. Examining the record, we find Brooks’s situation to be similar to that of the inmates in Watson.

The county held Brooks as a pretrial detainee. In that status, Brooks was entitled only to be confined until trial; the Appellants were under no obligation to allow Brooks the freedom he enjoyed. Brooks made the request for trusty status. He desired to leave the jail and chose to work as the price for that right. Since Brooks was not being punished by being detained until trial, the choice between this confinement and work as a trusty cannot be considered coercive because the benefits he received for working were not benefits for which he was otherwise entitled. Admittedly, the choice described might have been a painful one, but it was nonetheless a choice.

The district court granted Appellants partial summary judgment on Brooks’s claims relating to unlawful incarceration, absolving Appellants of legal liability. To find the Appellants liable for involuntary servitude based on a nolle prosequi order which provides no basis for liability under unlawful incarceration would defy common sense. Like the inmates in Watson, Brooks had a choice, albeit a painful one. He was, however, not subject to involuntary servitude and thus presented no claim under the Thirteenth Amendment.

2. Fourteenth Amendment — Procedural Due Process Claim

Brooks claimed that Appellants’ failure to compensate him for any of his work on public property, and their failure to compensate him for part of his work on private property, constituted a deprivation of property without due process of law in violation of the Fourteenth Amendment. The jury found Sheriff Howell and Deputy Miller liable for the deprivations in their individual capacities; because the jury found the deprivations to be part of a policy or custom, Sheriff Howell and Deputy Miller were also liable in their official capacities.

Appellants raise a number of defenses. They contend that Brooks has not alleged the deprivation of a cognizable property right, that qualified immunity shields Sheriff Howell and Deputy Miller from liability in their individual capacities and that no custom was present to give rise to official liability under Monell. Appellants also maintain that post-deprivation remedies are adequate process for Brooks because whatever deprivation that allegedly occurred was merely a random and unauthorized act under the Par-ratt/Hudson doctrine. Consideration of these defenses leads us to affirm judgment on the Fourteenth Amendment claim only as to Sheriff Howell in both his individual and official capacities.

a. Brooks’s Property Right

Since the United States Constitution does not create property rights, Brooks must be able to rely on Mississippi law to prove that he has a cognizable property right in wages for work performed as a pretrial detainee. Garcia v. Reeves County, Texas, 32 F.3d 200, 203 (5th Cir.1994). Where there is a “legitimate expectation of entitlement,” there is a property right. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).

Brooks contended below that Miss. Code Ann. §§ 47-1-13 and 47-1-21 (1972) created a properly right in wages for work on public and private property as a pretrial detainee. Miss.Code Ann. § 47-1-13 states in relevant part that

Any person being held in the county jail in default of bail to await trial ... may on application to the sheriff of the county, be allowed to work on ... county public works as other convicts are worked and at the same wage. The board of supervisors shall settle with prisoners so working at their regular meetings monthly.

(emphasis added). Miss.Code Ann. § 47-1-21 requires that

[t]he sheriff of each county shall keep a well bound alphabetical jail docket. In it he shall promptly enter under the proper initial the name, age, color and sex of each convict, the date of his or her commitment, each day worked on the county farm.... The sheriff shall submit his docket to the board of supervisors at each of their regular meetings, and the same shall be examined carefully by the president of the board, and by any other members who desire to examine the same, in the presence of the board while in session.

The statutes cited by Brooks do not create a legitimate expectation of entitlement to compensation for work on private property by pretrial detainees. These statutes do not provide for payments for work on private property. In fact, under Mississippi law, prisoners may only do work of an “exclusively public character.” See Miss.Code Ann. §§ 47-1-19, 47-1-3. We therefore find that Brooks’s failure to receive compensation for his work on private property over and above the compensation he actually received does not constitute a deprivation of a cognizable property right.

The two provisions quoted above, in our estimation, do create a legitimate expectation of entitlement to compensation for work on public property by pretrial detainees. These two statutes provide that a pretrial detainee who is permitted to work on public property must be paid the same wages as other prisoners. They place on the sheriff the duty to keep a record of days worked and to submit that information to the county board of supervisors so that the board can “settle” with the pretrial detainees at its regular meetings. Our conclusion that these statutes create a cognizable property right in wages is buttressed by the fact that the state has provided a mechanism whereby claims against the county can be presented directly to the board of supervisors or in state court. Because Mississippi law creates a cognizable property right in wages for a pretrial detainee’s work on public property, Brooks cannot be deprived of that right without due process of law. See Piatt v. MacDougall, 773 F.2d 1032, 1036 (9th Cir.1985) (en banc) (“Because Arizona has established, by statute, a right of inmates to compensation for work performed for private parties, it cannot deny [the inmate] that right after he has earned the wages, without affording him due process of the law.”).

Sheriff Howell did not keep a record of the days Brooks worked on public property and failed to present such a record to the board of supervisors at its meetings, precluding the board of supervisors from paying wages to Brooks. Brooks was thus deprived of wages for the work he performed on public property as a direct consequence of Sheriff Howell’s failure to act in the face of a clear duty to act under state law. The statutes cited by Brooks, however, do not impose on Deputy Miller a similar duty. Because the record provides no evidence that Deputy Miller’s actions or failure to act deprived Brooks of wages for the work he performed on public property, we reverse the judgment holding Deputy Miller liable in his individual or official capacities on this claim.

b. Sheriff Howell’s Qualified Immunity

We now consider whether Sheriff Howell is qualifiedly immune from liability in his individual capacity. Qualified immunity is only available when an official acts “within the scope of [his or her] discretionary authority.” Cronen v. Texas Dept. of Human Ser vices, 977 F.2d 934, 939 (5th Cir.1992). Mississippi law, as quoted above, imposes on Sheriff Howell a non-discretionary duty to keep records of work performed by pretrial detainees and to transmit those records to the board of supervisors so that pretrial detainees can be paid. Sheriff Howell thus is not entitled to qualified immunity from individual liability on this due process claim.

c. Official Capacity Liability Under Mo-nell

Brooks’s suit against Sheriff Howell in his official capacity is treated as a claim against George County. Hafer v. Melo, 502 U.S. 21, 23-27, 112 S.Ct. 358, 361-362, 116 L.Ed.2d 301 (1992). To establish liability on the part of George County, Brooks must demonstrate a policy or custom which caused the alleged constitutional deprivation. Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Appellants contend no such policy is present. However, the jury found that the Fourteenth Amendment violations were part of a custom, policy or practice of the county. This finding has sufficient support in law and fact.

We note that even “a single decision may create municipal liability if that decision were made by a final policymaker responsible for that activity.” Brown v. Bryan County, Oklahoma, 67 F.3d 1174, 1183 (5th Cir.1995) (emphasis in original). Sheriffs in Mississippi are final policymakers with respect to all law enforcement decisions made within their counties. Huddleston v. Shirley, 787 F.Supp. 109, 112 (N.D.Miss.1992); Miss.Code Ann. § 19-25-1, et seq. Sheriff Howell admitted on the record that the department kept none of the required records detailing the locations and number of days prisoners worked. The jury could infer from this statement that the county had a policy of not keeping such records. Therefore, George County is liable for the ongoing actions of its policy maker, Sheriff Howell, in depriving Brooks of his property without due process. Turner v. Upton County, 915 F.2d 133, 137 (5th Cir.1990), cert. denied 498 U.S. 1069, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991).

d. Application of the Parratt/Hudson Doctrine

Appellants urge in their defense that no due process violation has been shown because of the Parratt/Hudson doctrine. Under their version of this doctrine, the mere presence of post-deprivation remedies prevents a due process claim. Such interpretation is blatantly misleading and is not the law. The Parratt/Hudson doctrine dictates that a state actor’s random and unauthorized deprivation of a plaintiffs property does not result in a violation of procedural due process rights if the state provides an adequate post-deprivation remedy. Caine v. Hardy, 943 F.2d 1406, 1412 (5th Cir.1991) (en banc) (discussing Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)).

The Parratt/Hudson doctrine is inapplicable to the facts as shown. The doctrine is meant to protect the state from liability for failing to provide predeprivation process in situations where it cannot anticipate the need for such process (when actions are random and unauthorized). Zinermon v. Burch, 494 U.S. 113, 128-32, 110 S.Ct. 975, 984-87, 108 L.Ed.2d 100 (1990). Where a municipal officer operates pursuant to a local custom or procedure, the Parratt/Hudson doctrine is inapposite: actions in accordance with an “official policy” under Monell can hardly be labeled “random and unauthorized.” Wilson v. Civil Town of Clayton, Ind., 839 F.2d 375, 380 (7th Cir.1988). As this Court noted, where employees are acting in accord with customary procedures, the “random and unauthorized” element required for the application of the Parratt/Hudson doctrine is simply not met. Alexander v. Ieyoub, 62 F.3d 709, 713 (5th Cir.1995). Despite Appellants’ urging, we see no application of the Parratt/Hudson doctrine to the facts as presented.

Accordingly, we affirm the judgment holding Sheriff Howell liable in his individual and official capacities on this Fourteenth Amendment claim relating to Brooks’s work on pub-lie property. We do, however, remand to the district court for a retrial to determine the actual damages and punitive damages, if any, arising from Sheriff Howell’s liability on this claim.

B. Fourth Amendment Claims — Unlawful Seizure

Brooks cross-appeals the summary judgments against him on his claims based on unlawful confinement under the Fourth Amendment. All defendants were sued in both official and individual capacities under 42 U.S.C. § 1983. We review de novo the district court’s decision to grant summary judgment in favor of Appellants. For the reasons discussed below, we affirm the grant of summary judgment against Brooks.

Brooks argues that his continued incarceration after the nolle prosequi order was a violation of the Fourth Amendment. The court granted summary judgment in favor of all Cross-Appellees. As the lower court noted, Fourth Amendment claims are appropriate when the complaint contests the method or basis of the arrest and seizure of a person. Yet Brooks did not challenge his arrest, which was made pursuant to a valid capias, as a violation of the Fourth Amendment, but challenged only his continued incarceration.

We reference our decision in Valencia v. Wiggins, 981 F.2d 1440, 1449 (5th Cir.), cert. denied 509 U.S. 905, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993), by analogy, for the proposition that once the incidents of a valid arrest have long since been completed and the pretrial detainee remains in detention, the Fourth Amendment no longer applies when the challenge is solely to continued incarceration. In Valencia, this Circuit held that neither the Unreasonable Search and Seizure Clause of the Fourth Amendment nor the Cruel and Unusual Punishment Clause of the Eighth Amendment is applicable in determining whether a detention official’s use of deliberate force was excessive. Id. The Due Process Clause of the Fifth and Fourteenth Amendments are the appropriate constitutional provisions for this determination. Id.

As the Court stated,

We do not believe that the Fourth Amendment provides an appropriate constitutional basis for protecting against deliberate official uses of force occurring, as in this case, after the incidents of arrest are completed, after the plaintiff has been released from the arresting officer’s custody and after the plaintiff has been in detention awaiting trial for a significant period of time ... As the Fourth Amendment protects against unreasonable “seizures,” it seems primarily directed to the initial act of restraining an individual’s liberty, such as an investigatory stop or arrest.

Id. at 1443-1444.

The logic of Valencia applies to the instant case. The Fourth Amendment is inapplicable to a pretrial detainee who was properly arrested and is awaiting trial. That detainee has recourse to due process protections, not protection against unreasonable seizures after a lawful seizure has occurred. Since Brooks has shown no defect in his actual arrest, he has made no claim under the Fourth Amendment. We affirm the summary judgment for the Cross-Appellees on Brooks’s Fourth Amendment claims.

C. Dismissal of Claims Against the D.A. and the Clerk

Brooks also challenges the lower court’s holding that District Attorney Koskela and Circuit Clerk Ward were not subject to suit on any of the constitutional claims discussed above. As with the Fourth Amendment claim above, we hold that the district court properly granted summary judgment.

1. The District Attorney

Brooks’s claims against Earl Koskela, the George County District Attorney, stem from Koskela’s failure to provide a copy of the nolle prosequi motion to opposing counsel. Mississippi Uniform Circuit Court Rule 2.01 (1994) required that “[a] copy of all subsequent pleadings and motions, including motions for a new trial, shall be delivered in person or by mail to opposing counsel ...” Brooks contends that the district attorney’s office, through Gary S. Evans, assistant district attorney, violated this rule, leading to his unconstitutional imprisonment for eight months. At the summary judgment phase, the district court dismissed all claims against Koskela in his individual capacity on the basis of prosecutorial immunity and in his official capacity under the Eleventh Amendment on the basis of his status as a state official in Mississippi. We find summary judgment appropriate in this context.

This Court is uncertain whether Brooks has even alleged a violation of Rule 2.01. Mr. Evans merely prepared an order of dismissal for the state trial court after acknowledging in open court that the case would not proceed. The district attorney’s office had no duty under Rule 2.01 or, as far as we can discern, under any Mississippi law, to provide copies of the court’s orders to opposing counsel.

Even if one assumed that the procedure resulting in a court order amounted to a “motion,” Mr. Evans provided notice on or about January 28 or 29, 1991, of the government’s intention to seek dismissal to Mr. Brooks’s attorney, William T. Bailey, prior to the open court procedure. Thus we are not convinced that if the nolle prosequi procedure was subject to Rule 2.01’s requirements that the district attorney’s office even violated the rule.

Assuming arguendo that the district attorney violated Rule 2.01, we agree with the lower court that Koskela was nonetheless immune from such suit in his official and individual capacities. The district attorney is considered a state official in Mississippi, as the office is primarily state-funded, and the district attorney has the power to represent the state in all judicial proceedings. Chrissy F. by Medley v. Mississippi Dep’t of Public Welfare, 925 F.2d 844, 849 (5th Cir.1991). As a state actor, the district attorney is shielded in his official capacity by Eleventh Amendment immunity. Id. No suit against Koskela in his official capacity can be maintained.

Koskela is also immune from suit in his individual capacity. Immunity is sustained for acts taken in furtherance of the prosecution of the case; acts which are investigative or administrative do not carry absolute immunity. Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 994-95, 47 L.Ed.2d 128 (1976). Immunity is gauged by the functional activities the prosecutor engaged in and not the status of the defendant. Briscoe v. LaHue, 460 U.S. 325, 342, 103 S.Ct. 1108, 1119, 75 L.Ed.2d 96 (1983). Actions which are related to the judicial process fulfill the prosecutor’s “advocatory” function and are considered absolutely immune from suit. See Marrero v. City of Hialeah, 625 F.2d 499, 505 (5th Cir.1980), cert. denied 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981).

In our estimation, the prosecutor’s acts through his assistant of requesting that the court enter an order of nolle prosequi of Brooks’s criminal charges, of having an order prepared for the court that memorialized the same, and the forwarding of such order to the clerk for filing are all prosecutorial activities “intimately associated with the judicial phase of the criminal process.” Imbler, 424 U.S. at 430, 96 S.Ct. at 995 (emphasis added). The mere fact that the district attorney’s office prepared the court’s order for it and forwarded the order does not remove these acts from being intimately associated with the judicial process. Accordingly, we affirm the District Court’s holding that Mr. Koskela is immune from suit under 42 U.S.C. § 1983 in both official and individual capacities on all claims brought by Mr. Brooks.

2. The Circuit Clerk of George County

Wilbur G. Ward was the Circuit Clerk for George County at the time of the incidents which are the subject of this lawsuit. The record indicates that the order of nolle prose-qui was filed by Angela Cooper, over the file stamp which indicated that Wilbur Ward was the Circuit Clerk. Brooks alleges that Ward created a policy which had the effect of depriving him of the right to be free from unnecessary restraint by failing to send court orders of dismissal of charges to the defendant in a criminal prosecution, or to his counsel, and failing to adopt a policy for the George County Clerk’s office of sending orders. The district court granted summary judgment in favor of Wilbur G. Ward, circuit clerk of George County, Mississippi (“the clerk”), based on the fact that the judge, not the clerk, was the final policymaker of the circuit county system in George County with regard to the acts alleged by Brooks. We agree.

Under Mississippi law, the judge is the ultimate authority for the supervision of the court in his jurisdiction. As the Mississippi Supreme Court stated, “Although the clerk performs the physical act of record keeping, the judge is ultimately responsible for the administration of his court.” In re Collins, 524 So.2d 553, 555 (Miss.1987). Only those officials who have “final policymaking authority” may by their actions subject the government to liability under 42 U.S.C. § 1983. Bryan Cty., 67 F.3d at 1182. Accordingly, Ward cannot be liable for failing to establish a policy of sending orders to parties in a criminal proceeding because he was not the policymaker for the George County Circuit Court System.

We also note that nowhere has Brooks shown that circuit clerks have an affirmative duty under Mississippi law to provide the sheriffs of the state, or counsel for criminal defendants, or criminal defendants pro se, with copies of orders or pleadings filed in criminal cases. . Nor has Brooks shown an affirmative duty to notify sheriffs, counsel or defendants of the filing and entry of orders and pleadings in criminal cases. The circuit clerks merely have a duty to file and docket all papers filed in each court case.

Since “no duty to act existed, the failure to act did not violate the constitution.” Salas v. Carpenter, 980 F.2d 299, 307 (5th Cir.1992). While it is unfortunate that Brooks languished in the county jail, we can find no duty violated by the clerk to impose liability for the loss. The district court properly granted summary judgment on this issue.

Conclusion

Libertas inestimabilis res est. The spirit of this adage is that one can place no price on freedom. Brooks fell through the cracks of a modern bureaucratic labyrinth, resulting in eight months of mistaken confinement. Nevertheless, we are unable to provide a remedy under 42 U.S.C. § 1983 to Brooks for this mistaken confinement. Brooks is entitled to a remedy, however, for the deprivation of his property — the wages earned as a pretrial detainee on public property — without due process of law. Nothing will shield Sheriff Howell or George County from liability for Sheriff Howell’s failure to keep, and submit to the board of supervisors for payment, records of Brooks’s work on public property as a pretrial detainee.

Holding that Brooks’s involuntary servitude claim is without merit under the Thirteenth Amendment, we VACATE the judgments of the court below and RENDER judgment for Appellants. We also VACATE the judgment of the court below and RENDER judgment for Deputy Miller in both his individual and official capacities on Brooks’s Fourteenth Amendment deprivation of property claim. We AFFIRM the judgment holding Sheriff Howell liable in his individual and official capacities under the Fourteenth Amendment for deprivation of property solely as it relates to Brooks’s claim for wages for work on public property. However, we REMAND to the district court for a retrial to determine the actual damages, and punitive damages, if any, arising from Sheriff Howell’s liability for depriving Brooks of wages for his work on public property. We also AFFIRM the district court’s summary judgment for all Cross-Appellees on Brooks’s constitutional claims regarding unlawful incarceration and for District Attorney Koskela and Circuit Clerk Ward on the dismissal of all claims against them.

      . Examples of work done on private property include construction of a dog pen for Deputy Sheriff Miller and installation of a fence for Sheriff Howell’s sideline fencing business.

      . Brooks also raised a number of state law claims that were dismissed without prejudice on summary judgment.

      . Because we hold that Brooks presented no claim for involuntary servitude, we do not address whether Appellants were qualifiedly immune from liability in their individual capacities or whether Appellants were liable in their official capacities under the Thirteenth Amendment. We also-do -nofe-address-whether-admission-of-evi-dence of Brooke's unlawful incarceration was proper.

      . Appellants argue that Brooks never properly made a procedural due process claim for deprivation of wages under the Fourteenth Amendment. However, Brooks’s amended complaint requested relief under the Fourteenth Amendment and later stated that Sheriff Howell and his deputies "caused the Plaintiff to suffer ... damages for economic losses in the form of loss of wages ... for which the Plaintiff is entitled to recover.” Not surprisingly, the lower court recognized this contention as a due process claim for deprivation of wages. Such recognition was proper.

      .The District Court amended its final judgment to include George County as result of the finding of official capacity liability.

      . Under Miss.Code Ann. §§ 19-13-27 and 19-13-29, a claimant against a county can present such claim for unpaid work to the county board of supervisors. "If the board shall reject any such claim in whole or in part, or refuse when requested at a proper time, to pass thereon, the claimant may appeal to the Circuit Court, or may bring suit against the county on any such claim.” Miss.Code.Ann. § 19-13-31.

      . Appellants would have us release Deputy Sheriff James Cooper from liability on the Fourteenth Amendment claim. As is visible from the Special Interrogatories, the jury never found Cooper liable on the Fourteenth Amendment claim. We note that Cooper would be free of liability anyway for the same reasons that absolve Deputy Miller.

      . See footnote 6 supra (submission of claims against counties).

      .Appellants have raised an important evidentia-ry concern which we must address. The district court denied Appellants’ motion in limine to exclude evidence of the mistaken nature of Brooks’s confinement. The record is replete with Brooks’s references to the order of dismiss- . al and subsequent mistaken confinement for several months. The mistaken nature of the confinement was only relevant to Brooks’s unlawful incarceration claim for which the court granted summary judgment for the Appellants. The mistaken nature of the confinement is of little or no relevance to Brooks’s surviving Fourteenth Amendment claim for deprivation of property and is likely prejudicial to the defendants. The lower court should thus allow no evidence (including the nolle prosequi order itself) of the mistaken nature of the confinement to go before the jury in their consideration of damages on the Fourteenth Amendment claim. With regard to Brooks's status, the jury is entitled only to know that Brooks was in the county jail as a pretrial detainee and that he was released when the charges against him were dismissed.

      . Brooks appeals the summary judgment for all Cross-Appellees on the Fourth Amendment claims. Brooks does not appeal the summary judgment against him on his Eighth Amendment claim or on any of his claims against Public Defender William T. Bailey. Additionally, we note that Brooks nowhere in his brief questions the partial grant of summary judgment for the George County Board of Supervisors on immunity grounds, or for the Sheriff or his deputies on the Fourteenth Amendment claim with regard to deprivation of liberty. Accordingly, we will not address those portions of the summary judgment, any argument as to their propriety having been waived by Brooks.

      . Cross-Appellees on the Fourth Amendment claim are George County, Sheriff Howell, his three deputies, the George County Board of Supervisors, District Attorney Earl Koskela and Circuit Clerk Wilbur G. Ward.

      . Brooks's brief does not address his arrest but we do so here to show the lack of basis for Brooks’s Fourth Amendment claim. Brooks was arrested in Virginia pursuant to a notice placed with the National Criminal Information Center (NCIC) after an affidavit was presented against him for grand larceny. Brooks waived extradition and was returned to Mississippi by Sheriff Howell on January 21, 1991. He was served with the capias for indictments issued in October, 1990 for cause numbers 3657 and 3658. He appeared before the judge for his initial appearance on these charges on January 28, 1991 and pled not guilty. NCIC printouts provide a reliable basis for probable cause to arrest. U.S. v. McDonald, 606 F.2d 552, 552-54 (5th Cir.1979). Therefore, there is no support for Brooks’s claim that his arrest violated the Fourth Amendment guarantees against unreasonable searches and seizures.

      . As we agree with the District Court that Brooks presented no Fourth Amendment claim, we do not reach the arguments on immunily and level of conduct advanced at length by Cross-Appellees on this claim.

      . This immunily analysis applies to Koskela’s and Ward’s potential liability under any of Brooks’s claims. Because we have already shown above that Brooks’s claims under the Fourth and Thirteenth Amendments were without merit, however, this immunity analysis is germane only to Brooks’s claim under the Fourteenth Amendment for deprivation of liberty.

      . This rule has been amended and recodified as Uniform Circuit and Counly Court Rule 2.06, Service of Copies and Certificate of Service.

      . Mr. Bailey claimed that he no longer represented Brooks at the time of the nolle prosequi order. However, we agree with the district court that Bailey was still Brooks's attorney for the purposes of establishing notice of the order. Bailey, assigned to represent indigent defendants such as Brooks, never received court permission to withdraw from representation of Brooks as required under Rule 1.05 of the Uniform Criminal Rules of Circuit Court Practice (1994). Bailey signed a document acknowledging receipt of discovery from the State on behalf of Brooks. Brooks himself advised the court at the arraignment on January 28, 1991 that he had an attorney. At roughly the same time, the government gave its notice to Bailey that the case would not proceed. It is not surprising that all involved except for Bailey himself believed that Bailey was Brooks’s lawyer. Thus, the district court properly concluded that "Bailey, in his capacity as public defender, was acting as Brooks’s attorney for the duration of the case.”

      . Holding that the district attorney is protected by absolute immunity in both official and individual capacities, we do not reach the issue of Cross-Appellees' qualified immunity.

      . Brooks makes much of the fact that Ward held the position of Circuit Court Administrator of George County. The Court Administrator performs nonjudicial tasks of the court, serves as a liaison to the general public, and provides administrative support for all judges of the district. Miss.Code Ann. § 9-17-3 (1972). We find Brooks’s reference to this fact deceptive. Appellants astutely advert to the fact Ward did not become Administrator until July, 1992, almost ten months after Brooks was released from jail. Ward’s appointment to this position after Brooks's release is hardly relevant to the question of whether Ward was the court's policy maker at the time of Brooks’s incarceration.

      . E.g., Miss.Code Ann. § 9-7-171 (1972) (duty of circuit clerk to keep a "general docket”); Miss.Code Ann. § 9-7-175 (1972) (duty to keep a "criminal docket"); Miss.Code Ann. § 9-7-177 (1972) (duty to keep an “appearance docket”).

      . Because we hold that the circuit clerk was not a policymaker and did not violate any duty, we do not reach the issue of the clerk’s qualified immunity.


author: PER CURIAM:

text:
    Henry Lee DORSEY, Plaintiff-Appellant, v. SCOTT WETZEL SERVICES, INC. & Planet Insurance Co., Defendants-Appellees.
    No. 95-20702
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    May 31, 1996.
    Philip Elwin Parker, Dallas, TX, for Henry Lee Dorsey, plaintiff-appellant.
    Diana Kay Ball, Houston, TX, for defendants-appellees.
    J. Robert McKissick, Houston, TX, for defendant.
    Before WIENER, PARKER and DENNIS, Circuit Judges.
   PER CURIAM:

I.

Henry Lee Dorsey (“Dorsey”) filed this insurance “bad faith” case in Texas state court in March of 1994. The ease was removed to federal district court based upon the court’s diversity jurisdiction. On July 15, 1994, the district court held its initial scheduling conference with the parties’ counsel. Both at the conference and by confirming written docket control order, the district court established pre-trial deadlines and set the case for trial on the two-week docket beginning February 10, 1995. Pursuant to the docket control order, the parties’ joint pretrial order was due for filing no later than February 3,1995.

Unable to contact Dorsey’s counsel in advance of the filing deadline for the joint pretrial order, counsel for Planet Insurance Co. (“Planet”) timely filed the defendants’ portion of the pretrial order. Dorsey’s counsel then failed to appear at the February 10, 1995 trial docket call that had been orally announced at the initial scheduling conference on July 15, 1994, and confirmed by written docket control order issued on the same date. The trial court re-set the trial docket call for February 13,1995.

Dorsey’s counsel appeared at the re-set trial docket call on February 13, 1995. At that time, Dorsey requested leave to file plaintiff’s portion of the pretrial order and to tardily furnish expert qualifications for previously designated experts. Although the trial court initially granted the defendants’ motion to strike Dorsey’s witness list, it apparently reconsidered this ruling at a later date when it gave Dorsey an additional fifteen days to designate experts. The court also ordered the parties to participate in mediation, and ordered them to report for a second trial docket call on May 12,1995, in the event the case was not settled at mediation.

Mediation produced no results. On May 11, 1995, one day before the trial docket call, Dorsey’s counsel filed a designation of his intent to call a specially retained expert as a witness at trial and accompanied the tardy designation with a report of the proposed expert witness and a resumé of his qualifications. At the May 12, 1995, trial docket call the defense announced “ready” for trial subject to the court’s ruling on Dorsey’s ability to use the late-designated expert. Again, the trial court granted Dorsey a concession, permitting him to tardily designate the expert contingent only upon the defendants being afforded an opportunity to depose Dorsey’s expert. In order to accommodate Dorsey’s late designation, the court granted a second delay. The parties then consented to proceed before a magistrate judge and the case was set for trial on July 24,1995, at 9:00 a.m. The oral announcement of the trial date was memorialized by written order issued to all parties.

The week before the scheduled trial date, the trial court’s coordinator contacted Dorsey’s counsel to confirm the trial setting. On Monday, July 24, 1995, the magistrate took the bench and called the case to trial. The defendants announced ready. However, neither Dorsey nor his counsel appeared. The defendants then moved the court to dismiss Dorsey’s case for want of prosecution. The magistrate granted the defendants’ motion and dismissed the case with prejudice.

On August 1,1995, Dorsey filed his motion for new trial. In his motion, Dorsey’s counsel stated that he became severely ill at 10:00 a.m. on July 23, 1995. Dorsey’s counsel claimed that as a result of this illness he was unable to appear for trial. However, Dorsey failed to apprise the court of this alleged illness prior to the court’s decision to dismiss his case. Instead, Dorsey apparently entrusted the matter to his secretary, who apparently understood the trial setting to be a hearing. The secretary eventually contacted the court to offer Dorsey’s counsel’s excuse of illness. The magistrate did not credit this excuse and denied Dorsey’s motion for new trial on August 10, 1995. Dorsey then appealed the magistrate’s dismissal of his claim for want of prosecution.

II.

Dorsey argues that the district court abused its discretion when it denied his motion for continuance. This court reviews a district court’s denial of a motion for continuance for abuse of discretion. Johnston v. Harris County Flood Control Dist., 869 F.2d 1565 (5th Cir.1989), cert. denied, 493 U.S. 1019, 110 S.Ct. 718, 107 L.Ed.2d 738 (1990). However, as noted by the magistrate in her order denying Dorsey’s motion for new trial, Dorsey neither filed a motion for continuance nor did he orally make a motion for continuance to the court. Consequently, our review is limited to examining the lower court’s decision to dismiss Dorsey’s suit with prejudice.

Rule 41(b) authorizes a district court to dismiss with prejudice an action for want of prosecution by the plaintiff. In reviewing a district court’s decision to dismiss under Rule 41(b), we reverse only if we find an abuse of discretion. This circuit has, however, consistently held that rule 41(b) dismissals with prejudice will be affirmed only upon a showing of a clear record of delay or contumacious conduct by the plaintiff, ... and where lesser sanctions would not serve the best interest of justice.

Salinas v. Sun Oil Co., 819 F.2d 105, 106 (5th Cir.1987) (internal citations and quotations omitted).

A Contumacious conduct

Dorsey failed to timely file a joint pretrial order. Dorsey failed to appear for the first duly scheduled trial docket call on February 10, 1995. Dorsey appeared but was not ready to go to trial at the re-set trial docket call on February 13, 1995. The trial court again re-set docket call for May 12, 1995. Then, on May 11,1995, Dorsey tardily designated an expert, just one day before the second trial docket call was set. Dorsey had to know that if the court granted his request to tardily designate an expert witness then the trial would again be delayed. The trial court’s generous decision to permit Dorsey’s late designation again delayed the trial until July 24, 1995. Dorsey then failed to appear for trial on July 24, 1995, and the magistrate dismissed the action. Rather than personally contacting the court, Dorsey deemed it adequate to instruct a secretary to phone an unidentified court employee to relay the message that counsel was sick and would not be appearing. Based upon these facts we find that Dorsey’s actions constituted contumacious conduct.

B. Best interests of justice

Considering the history of the case, the fact that the case had been called to trial with no appearance by Dorsey or his counsel, the fact that no motion for continuance had been filed, the fact that the case manager could confirm Dorsey’s counsel’s personal knowledge of the trial, and the fact that this was the third time the trial had been rescheduled in an effort to accommodate Dorsey, all indicate that there were no lesser sanctions available to the trial court that would have served the best interests of justice. Consequently, we find that the district court did not abuse its discretion when it dismissed Dorsey’s action with prejudice. See Woodson v. Surgitek, 57 F.3d 1406, 1418 (5th Cir.1995) (district court’s decision to. involuntarily dismiss action with prejudice did not constitute an abuse of discretion even when the sanctionable conduct was attributable to counsel rather than to the plaintiff directly).

III.

For the foregoing reasons, the judgment of the district court is AFFIRMED.


author: STEWART, Circuit Judge:

text:
    OCCIDENTAL CHEMICAL CORPORATION, and Travelers Insurance Company, Plaintiffs-Appellees, v. ELLIOTT TURBOMACHINERY COMPANY, INC., Defendant-Appellant, and Liberty Mutual Insurance Company, Defendant.
    No. 95-30662.
    United States Court of Appeals, Fifth Circuit.
    June 3, 1996.

      Merrick J. Norman, Jr., Woodley, Williams, Fenet, Boudreau, Norman & Brown, Lake Charles, LA, Daniel Q. Poretti, Gary J. Gordon, Fetterly and Gordon, Minneapolis, MN, for plaintiffs-appellees.
    A. Justin Ourso, III, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, Baton Rouge, LA, for defendant-appellant.
    Before REYNALDO G. GARZA, WIENER and STEWART, Circuit Judges.
   STEWART, Circuit Judge:

This interlocutory appeal raises issues of first impression involving Louisiana contract law. Elliott Turbomachinery Company appeals the district court’s decision denying its second motion for summary judgment regarding the plaintiffs’ claim for gross fault. The district court held that the warranty provision in Elliott’s commercial contract, which limits the duration of its liability for gross fault to only one year, is violative of Louisiana public policy and therefore invalid. After reviewing and analyzing applicable Louisiana law, we are convinced that the district court correctly interpreted the provision. Therefore, we affirm the district court’s judgment.

FACTS

Occidental Chemical Corporation executed an agreement with a general contractor, Braun, for an engineering construction project at Occidental’s St. Charles plant. The agreement authorized Braun to issue purchase orders and execute subcontracts (subject to Occidental’s approval) to obtain goods and services for Occidental.

Pursuant to this agreement, Braun subcontracted Elliott to rerate certain turbines and compressors owned by Occidental. Elliott had manufactured the turbines and compressors for the previous owner of the St. Charles plant. The subcontract between Braun and Elliott contained warranty and liability provisions limiting the duration of Elliott’s warranty for its rerates. Speeifieally, Elliott’s warranty ended twenty-four months from the date of shipment or twelve months from the date of first use, whichever period was shorter. Further, the provisions limited Elliott’s responsibility to repair or replacement and made Elliott completely immune from liability for damages.

Braun also executed a second subcontract with Elliott which required Elliott to install the equipment after it was rerated. This contract also contained warranty and liability provisions. The provisions limited Elliott’s installation services warranty to ninety days from the date Elliott completed the installation. Further, the provisions restricted Braun and Occidental’s remedy to repair or replacement and excluded all other warranties as well as Elliott’s liability for special or consequential damages.

Elliott rerated Occidental’s J802R2 compressor, which had been manufactured by Elliott in 1966, and shipped it to the St. Charles plant in July of 1989. Elliott completed installation of the compressor in August of 1989. On December 24, 1990 during a harsh freeze, the compressor failed. The compressor suffered extensive damage, which forced Occidental to cease operation of the plant until the compressor was repaired. The compressor failure and shutdown cost Occidental millions of dollars in damages. Traveler’s Insurance paid Occidental $7 million in repair costs and consequential damages.

the contractual provisions limiting Elliott’s warranties and Occidental’s recovery. The district court found that the contract expressly excluded most of Occidental’s claims, which were filed sixteen months after the date of first use. However, the court held that article 2004 of the Louisiana Civil Code invalidated the contractual provision limiting Elliott’s warranty for gross fault. Accordingly, the court denied Elliott’s motion for summary judgment on the issue of gross fault. The district court granted Elliott leave to appeal the interlocutory judgment to this court. Occidental believed that the compressor failed because Elliott replaced one of the compressor’s components (guide vanes) with inferior parts, which damaged the compressor. Occidental and Travelers sued Elliott and its insurer alleging several contractual causes of action. The district court applied

DISCUSSION

A. STANDARD OF REVIEW.

It is well-established that this court reviews de novo questions of law raised in summary judgment appeals. See Eugene v. Alief Indep. Sch. Dist., 65 F.3d 1299, 1303 (5th Cir.1995). More specifically, we review a district court’s interpretation of a state statute de novo. See Transcontinental Gas Pipe Line Corp. v. Transportation Ins. Co., 953 F.2d 985, 987 (5th Cir.1992). The district court’s interpretation of article 2004 clearly qualifies for de novo review. In reviewing the issue, we must use the same criteria as the district court, see General Elec. Capital Corp. v. Southeastern Health Care, Inc., 950 F.2d 944, 947-48 (5th Cir.1991), which in this case involve the principles applicable to granting summary judgment, see id.; and Fed.R.Civ.Pro. 56(c). Nevertheless, our standard of review discussion cannot end here because a state statute is involved.

Our interpretation of a state statute is not accomplished with unfettered discretion. The federal court is bound to answer the question the way the state’s highest court would resolve the issue. See Transcontinental Gas, 953 F.2d at 988. In addressing an insurance issue, this Court in Graham v. Milky Way Barge, Inc., 824 F.2d 376, 381 (5th Cir.1987) explained as follows:

When the state courts have not yet decided a particular question, the duty of the federal court is to decide what the state courts would hold if faced with that issue. ... In making this determination it is our duty ... to view ourselves ... as an inferior state court and to reach the decision that we think a state court would reach.... As a federal court, it is not for us to adopt innovative theories of state law, but simply to apply the law as it currently exists.... If the law of Louisiana is to be changed, it is up to the Supreme Court of Louisiana and not this court to change the substantive law of that state.

(citations, brackets, and quotations omitted). Accordingly, we must interpret a state statute the way the Louisiana Supreme Court would interpret the statute based upon prior precedent, legislation, and relevant commentary.

B. INTERPRETATION OF ARTICLE 2004.

Both parties agree that no Louisiana court has ever applied article 2004 to a warranty duration provision. Both parties also assert that article 2004 is clear and unambiguous, though both present very different interpretations of the article.

Elliott argues that article 2004 does not apply to a warranty duration provision. It asserts that Louisiana courts routinely enforce warranty duration provisions in commercial contracts. Elliott also contends that article 2004 literally applies to liability provisions, not warranty provisions. As warranties regulate obligations rather than liabilities, article 2004 does not affect warranty provisions. Additionally, Elliott asserts that the law review article written by Professor Saul Litvinoff, which prompted the enactment of article 2004, supports the validity of the warranty provision at issue. Finally, Elliott maintains that invalidating the warranty provision will destroy the parties’ freedom to contract, which is valued by the Louisiana Civil Code.

In response, Occidental and Travelers argue that Elliott’s warranty provision does not expressly apply to gross negligence. They also assert that article 2004 applies to “any” clause limiting liability for intentional and gross fault. Because the present provision directly limits Elliott’s liability for gross negligence, it violates article 2004. Further, the appellees contend that Professor Litvinoffs law review article actually supports the district court’s interpretation. Finally, they argue that Louisiana’s statutory construction principles mandate the district court’s interpretation.

In determining which interpretation of article 2004 would likely be adopted by the Louisiana Supreme Court, we will begin with the language of the article and the rules of construction provided in the Civil Code. Article 2004, entitled “Clause that excludes or limits liability,” provides as follows:

Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. ■ Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the party.

The statutory construction articles in the Louisiana Civil Code provide that “Persons may not by their juridical acts derogate from laws enacted for the protection of the public interest. Any act in derogation of such laws is an absolute nullity.” LaCiv.Code art. 7. “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” LaCiv.Code art. 9. ‘When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.” LaCiv.Code art. 10. ‘Words of law must be given their generally prevailing meaning.” LaCiv.Code art. 11.

Reading the construction articles together, we find that article 2004 is not clear and unambiguous. The article is susceptible of two reasonable interpretations regarding warranty provisions, as presented by the parties. We therefore must interpret article 2004 in a manner that best conforms to the purpose of the law and Louisiana public policy. See LaCiv.Code arts. 7,10.

Though the comments do not carry the force of law, we may glean from the comments the legislature’s intent when enacting the article. The comments to article 2004 indicate that the article does not change the law; it merely “expresses the consequence of the principle of contractual freedom stated in C.C. Art. 1901.” Citing the Louisiana Supreme Court in Freeman v. Dep’t of Highways, 253 La. 105, 217 So.2d 166 (1968), the comments provide a reasoning behind the statute: the clauses “are against public policy because the overriding principle of good faith would be destroyed if it were possible to contract away for liability for fraud.” Further, the comments explain that the article does not invalidate clauses which are governed by federal legislation, which relieve liability for delay damage, which relieve liability for slight fault, and which allocate between the parties the risk of potential liability towards third parties (i.e., indemnity or “hold harmless” clauses). Instead, the article prohibits only clauses that exclude or limit liability for intentional or gross fault.

Likewise, insights regarding article 2004 surface in the writings of Professor Litvinoff, who was the inspiration for the provision and also the reporter for the Louisiana Law Institute Committee which revised Louisiana contract law. In particular, we may suppose the purpose of article 2004 from the law review article in which Professor Litvinoff introduces a proposed version of article 2004 amid a thorough discussion of Louisiana public policy and legal history. See Saul Litvinoff, Stipulations As To Liability And As To Damages, 52 Tul.L.Rev. 258 (1978). Professor Litvinoff explains inter alia that contractual clauses limiting the duration of a party’s obligation of warranty are valid under the Louisiana Civil Code, except in those situations where public policy would be violated. 52 TulL.Rev. at 295, Professor Litvinoff comments: “Agreed delays for discovery of defects in workmanship, máterials, or redhi-bitory defects, or even delays for eviction to occur must be regarded as valid, without limitations other than those required by the public order[.]” 52 Tul.L.Rev. at 295-96. Moreover, on the issue of “public order,” Professor Litvinoff clarified that because “gross fault” involves a certain degree of fraudulent intent, “a clause relieving a party of the consequences of his gross fault is ... as greatly opposed to the public order as a clause relieving him of the consequences of his intentional nonperformance or fraud.” 52 Tul.L.Rev. at 279. Reading Professor Litvi-noff s restriction on warranty limitations with his explanation of gross fault, we are convinced that although limitations regarding warranties are permissible in most circumstances, such limitations are prohibited when the obligor is guilty of gross fault.

We find that article 2004 stands as a legislative pronouncement of public policy which parties to a contract cannot ignore. Gross fault or gross negligence is so closely akin to intentional fault and fraud that it would disrupt the social order to allow parties to contract in advance to limit liability for gross fault.-

The Louisiana statutes and cases generally define gross negligence as conduct which falls below that which is expected of a reasonably careful person under like circumstances, or which is less than that diligence which even careless men are accustomed to exercise. Gross negligence is also “reckless disregard” or “careless indifference,” and may involve a gross or substantial deviation from an expected or defined standard of care.

Rosenblath’s v. Baker Indus., 634 So.2d 969, 973 (La.App.2d Cir.1994). Thus, any contractual clause which operates to limit a plaintiffs right to redress a violation for gross fault violates Louisiana public policy. Contractual provisions excluding gross fault may therefore convert an otherwise valid contractual provision into an invalid one.

Elliott attempts to persuade this Court that the contract remains valid in this case because Occidental and Travelers allege gross negligence rather than gross fault, suggesting that gross fault does not encompass gross negligence. Elliott maintains that gross fault necessarily implicates more than negligence because Professor Litvinoff places gross fault in the same category as intentional fault and fraud. Accordingly, Elliott interprets gross fault as adding another form of “fraud” or “intentional fault.” We find this interpretation unnecessarily restrictive and inconsistent with the Louisiana cases applying article 2004. We previously have determined that article 2004 encompasses gross negligence. See Orthopedic & Sports Injury Clinic v. Wang, 922 F.2d 220, 224 (5th Cir.1991). Louisiana opinions rendered after our decision in Wang have reached the same conclusion. See, e.g., Broom v. Leebron & Robinson Rent-A-Car, 626 So.2d 1212, 1216 (La.App.2d Cir.1993).

Further, the Louisiana Civil Code drives a stake through the heart of Elliott’s interpretation of gross fault. Article 3506 of the Code expressly refers to negligence when defining gross fault. The article provides: “The gross fault is that which proceeds from inexcusable negligence or ignorance; it is considered as nearly equal to fraud.” La. Civ.Code art. 3506, § 13 (emphasis added). The legislature obviously intended gross fault to encompass gross negligence. We therefore find no merit to Elliott’s characterization of gross fault.

The warranty clause in Elliott’s contract has the effect of limiting its liability for gross fault because without the clause Occidental would have over eight more years to bring an action for Elliott’s breach. We are convinced that the legislature intended article 2004 to reach warranty clauses effecting gross negligence actions. Wé, therefore, hold that while Louisiana law permits parties to limit, by contract, the duration of a warranty, article 2004 prohibits provisions limiting the duration of a warranty when gross fault is involved. Consequently, Elliott’s warranty provision is void because it imper-missibly operates in a manner that limits actions for gross negligence.

CONCLUSION

Louisiana public policy precludes the agreement that Elliott attempts to enforce through its motion for summary judgment. Article 2004 establishes that Elliott cannot contract in advance to limit its liability for gross negligence. Therefore, we AFFIRM the judgment of the district court denying Elliott’s motion for summary judgment.

      . The district court granted Elliott’s first motion for summary judgment as to the plaintiffs' claims for negligence, breach of contract, breach of express and implied warranties, and redhibition.

      . Occidental purchased the St. Charles plant in 1982.

      . "Rerate” is a procedure to create a modification in a turbine or compressor in order to change the performance characteristics of the turbine or compressor.

      . The rerate agreement provided as follows:
      27. WARRANTY REMEDIES If within 24' months from date of shipment, or within 12 months from date first used as intended, whichever occurs first, Buyer discovers defects, errors, omissions, performance deficiencies, or breach of any warranty as to the items, materials, or work supplied by Seller, then Seller shall promptly repair or replace without cost to Buyer, the items or materials in question and reperform any defective work, and Buyer will provide at no cost to Seller, all necessary cranes and rigging as required for such work. If Seller fails after reasonable written notice to proceed promptly with the repair or replacement of the defective items or materials, Buyer may repair or replace such items or materials and charge all reasonable direct costs associated with such work, except for any crane or rigging expenses, to the Seller without voiding the warranties herein.
      * * * * * *
      The warranties in Clauses 25, 26, and 27 and the implied warranties of merchantability and fitness of purpose shall be Seller’s sole warranty responsibilities to Buyer or Buyer’s Customer and are given in lieu of all other warranties, express or implied. The remedies provided in this Clause 27 are the sole remedies provided to Buyer and its Customers for any failure of Seller to comply with its warranty obligations.
      * * * * * *
      50. LIMITATION OF LIABILITY Notwithstanding any other provision in the Purchase Order or elsewhere to the contrary, in no event shall Seller or its suppliers be liable, whether arising under contract, tort (including negligence), strict liability, or otherwise, for loss of anticipated profits, loss by reason of plant shutdown, nonoperation or increased expense of operation, service interruption, cost of purchased or replacement power, claims of buyer’s customers, subcontractors of [sic] suppliers, cost of money, loss of use of capital or revenue, or for any special, incidental, indirect or consequential loss or damage of any nature arising at any time or from any cause whatsoever.

      . The Installation agreement provided as follows:
      9. WARRANTY REMEDY Should subcontractor be notified of any failure to conform to the warranty in ARTICLE 8 (MATERIALS AND WORKMANSHIP WARRANTY) above within a period of ninety (90) days after completion of Subcontractor’s work or delivery of goods and materials, Subcontractor, without cost to Braun or Owner, shall promptly correct, repair, or replace the materials or workmanship in whatever manner necessary so that all the requirements of this subcontract and the obligations of Subcontractor under Article 8 are satisfactorily fulfilled and Braun will provide at no cost to Subcontractor, all necessary cranes and rigging for such work. If subcontractor fails after reasonable notice to proceed promptly with the correction, repair, or replacement of any defective items, materials, or workmanship, Braun may replace or repair such items or materials, correct such workmanship, and charge all reasonable direct costs, except for any crane or rigging expenses to Subcontractor.
      The warranties in Articles 8 and 9 shall be Subcontractor’s sole warranty to Braun or Braun’s Customer and are given in lieu of all other warranties, express or implied. The remedies provided in this Article 9 are the sole remedies provided to Braun and its Customers for any failure of Subcontractor to comply with its warranty obligations.
      ?}! * * * * Jjt
      71. MAXIMUM LIABILITY Notwithstanding any provision in this subcontract or elsewhere to the contrary [sic]. Subcontractor’s maximum liability arising at any time from any cause whatsoever, whether in contract, tort (including negligence) strict liability or otherwise, shall not exceed $1,000,000.00 dollars.
      72. LIMITATIONS OF LIABILITY Notwithstanding any other provision in the subcontract or elsewhere to the contrary, in no event shall Subcontractor or its suppliers be liable, whether arising under contract, tor [sic] (including negligence), strict liability, or otherwise, for loss of anticipated profits, los [sic] by reason of plant shutdown, nonoperation or increased expense of operation, service interruption, cost of purchased or replacement power, claims of Braun’s customers, subcontractors or suppliers, cost of money, loss of use of capital or revenue, or for any special, incidn=ental [sic], indirect or consequential los [sic] or damage of any nature arisning [sic] at any time or from any cause whatsoever.

      . Elliott concedes that the manner in which it attached the component to the diaphragm of the compressor changed over the years. In fact, it had applied three different methods to the compressor at issue. One method was used during the original manufacture in 1966, another method was employed during a previous rerate job in the late 1980s, and a third method was used during the rerate which prompted this litigation.

      . See Saul Litvinoff, Stipulations As To Liability And As To Damages, 52 Tul.L.Rev. 258 (1978). In the article, Professor Litvinoff discusses the validity of various contractual stipulations through which parties attempt to limit their liability in the event of a breach. To some extent, both parties rely on Professor Litvinoffs article to support their respective positions.

      . The record suggests that the parties co-drafted the contract. Accordingly, we will not construe the contract against Elliott, and the rules regarding strict construction do not apply to the present case.

      . It is undisputed that general contractual provisions seeking to limit liability for gross fault are invalid and unenforceable. See, e.g., Orthopedic & Sports Injury Clinic v. Wang, 922 F.2d 220, 224 (5th Cir.1991); Robin Towing Corp. v. Honeywell, Inc., 859 F.2d 1218, 1221 (5th Cir.1988); Rosenblath’s Inc. v. Baker Indus., 634 So.2d 969, 973 (La.App.2d Cir.), writ. denied, 640 So.2d 1348 (La.1994); Tony’s Auto Parts, Inc. v. Honeywell, Inc., 522 So.2d 680, 681 (La.App. 5th Cir.1988); Banner Chevrolet v. Wells Fargo Guard Serv., 508 So.2d 966, 967 (La.App. 4th Cir.1987); and Carriage Meat Co. v. Honeywell, Inc., 442 So.2d 796, 798 (La.App. 4th Cir.1983).

      . Louisiana law provides that a contractor is liable for non-compliance with a construction contract. La.Civ.Code art. 2769; see also Wetmore v. Blueridge, Inc. 391 So.2d 951, 953 (La.App.4th Cir.1980) ("A contractor is bound to warrant his work and is responsible for damages occasioned by defective workmanship or installation”). The statutes provide a warranty period of ten years. La.Civ.Code art. 2762. In the absence of Elliott’s warranty provision, the rerate work and installation would be covered by the ten year period provided in article 2762. See Gulf States Util. Co. v. Ecodyne Corp., 635 F.2d 517, 521 (5th Cir.1981) (applying article 2762 to a cooling tower); and Murphy Corp. v. Petrochem Maintenance, Inc., 180 So.2d 716, 721 (La.App.1st Cir.1965) (applying article 2762 to an underground storage tank).

      . We find it unnecessary to discuss cases not involving or discussing gross fault which have upheld provisions limiting the duration of a warranty. It is conceded that Louisiana permits limitations on warranties as long as public policy is not violated. See, e.g., Datamatic v. Int’l Business Machines Corp., 795 F.2d 458 (5th Cir.1986) (affirming summaty judgment for a manufacturer because the contract limited its warranties to one year from installation); and California Union Ins. Co. v. Bechtel Corp., 473 So.2d 861 (La.App. 4th Cir.), writ. denied, 477 So.2d 1128 (La.1985) (affirming the granting of a motion for involun-taty dismissal because the contract limited the warranty to defects appearing within eighteen months of the shipment date or one year from installation, whichever occurred first). We find these cases distinguishable and therefore give them no weight in determining whether article 2004 reaches warranty provisions that ultimately limit liability for gross fault.