IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 95-30483
____________________
SHERIDAN PHILLIP RICHARD;
LISA GARY RICHARD,
Plaintiffs-Appellants,
and
INSURANCE COMPANY OF NORTH AMERICA,
Intervenor Plaintiff-Appellant,
versus
CLARK REED; INTERNATIONAL SYSTEMS &
CONTROLS CORPORATION; R.J. GREENVILLE;
REED JOSEPH COMPANY; HIGHLANDS INSURANCE
COMPANY; THOMAS CONVEYOR COMPANY
INCORPORATED; MODERN FARM SYSTEMS
INCORPORATED; BLOUNT AGRICULTURE
INDUSTRIAL CORPORATION; SCREW CONVEYOR
CORPORATION; F M C CORPORATION, also known
as Food Machinery Corporation,
Defendants,
and
BLUFFTON AGRICULTURE INDUSTRIAL
CORPORATION; AETNA CASUALTY &
SURETY CO.,
Defendants-Appellees.
_______________________________________________________________
Appeal from the United States District Court for the
Western District of Louisiana
(88-CV-1821)
_______________________________________________________________
September 9, 1996
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
The Richards have had a difficult time in determining whom
they should sue for their very serious injuries. They sued one
group of defendants, and later voluntarily dismissed the complaint.
They soon found a new lawyer and were allowed to reinstate their
complaint against a second group of defendants. Finally, some six
years after they filed their first complaint, they added a third
group of defendants to their once-dismissed-and-many-times amended
complaint. The district court dismissed the third group of
defendants on grounds that the one-year prescriptive period barred
the plaintiff's claims against this group of defendants.
We cannot turn back the hands of the prescriptive clock for
the Richards so as to allow them to add these defendants. We
therefore affirm the district court and hold that neither the
Louisiana in solido liability doctrine for joint tortfeasors, nor
the federal relation-back doctrine that may allow suit against
untimely sued defendants, separately or in combination, will save
the plaintiffs' claim.
I
In October 1987, Sheridan Phillip Richard slipped into a
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
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conveyor system, and his leg was amputated above his knee. Over
the course of seven years and five amended petitions, Richard and
his wife (the "Richards") sued various manufacturers, sellers and
installers of the conveyor system for their injuries and damages.
Initially, within the one-year Louisiana prescription period, they
sued "Clark Reed and Berthell Joseph, d/b/a Reed-Joseph
International," and, in an amended petition, "International Systems
Controls Corporation, Inc." ("ISC"). In the fall of 1988, a few
months after the one-year period had prescribed, these defendants
(the "Group I defendants") filed motions to dismiss for lack of
personal jurisdiction. The district court granted the motions in
late 1988 and early 1989. These dismissals were not appealed.
In November 1988, a month and a half after the prescriptive
period had expired (and before the district court had ruled on the
pending motions to dismiss), the Richards amended their petition to
name Reed-Joseph Company,1 and its insurer, Highlands (the "Group
II defendants").2 In June 1991, the Richards' attorney filed a
motion and order seeking voluntary dismissal of their case with
1
Reed-Joseph Company was incorrectly named because Reed-Joseph
Company had changed its name in 1978 to Greenville R.J., Inc.
2
The district court allowed the untimely addition of these
defendants under the "relation-back" doctrine, discussed more fully
below.
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prejudice.3 As of that date, the Group II defendants were the only
defendants in the case, the Group I defendants having been
dismissed earlier. The district court granted the motion for
voluntary dismissal, as well as a similar motion by Insurance
Company of North American ("INA"), which had intervened for
recovery of worker's compensation benefits that it had paid
Richard. In September 1991, a new law firm for the Richards filed
a Rule 60(b) motion to reinstate the case. In May 1992, the
district court granted the motion, and also reinstated INA's
intervention. Still, the only defendants in the case were the
Group II defendants.
Over the next year, the Richards amended their complaint
several times in an attempt to name the proper defendants.
Finally, in January 1994, the Richards filed their fifth
supplemental and amended petition, naming Bluffton Agri-Industrial
Corporation ("Bluffton") and Aetna Casualty & Surety Company
("Aetna") as defendants in the lawsuit. The Richards alleged that,
under applicable Louisiana law, Bluffton and Aetna were "solidary
obligors" with the Group II defendants, and were therefore subject
to suit outside the one-year prescriptive period. The earliest
3
Between early 1989 and June 1991, the case was closed and
then ordered reinstated. Neither party has indicated that this
first dismissal and subsequent reinstatement have any bearing on
our review of this appeal.
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possible date Bluffton and Aetna had any notice of this suit was
sometime in the fall of 1993, well after the prescriptive period
had expired.
After they were added as defendants, Bluffton and Aetna filed
a motion for summary judgment, arguing that the Richards' claims
against them were prescribed. The district court granted the
motion, and signed a judgment certifying its ruling for immediate
appeal under 28 U.S.C. § 1292(b). Shortly thereafter, the district
court signed a Rule 54(b) judgment, allowing an appeal as of right.
The issue before us today is whether the district court erred by
granting summary judgment in favor of Bluffton and Aetna, holding
that Richard's fifth amended petition, naming Bluffton and Aetna as
defendants, did not "relate back" to the original petition, and
therefore did not interrupt the one-year prescriptive period.
II
A
Under Louisiana law, personal injury actions are governed by
a one-year prescriptive period. LSA-C.C. art. 3492. LSA-C.C. art.
3462 governs interruption of prescription by the filing of a suit
or by service of process within the prescriptive period:
Prescription is interrupted when the . . . obligee
commences action against the obligor, in a court of
competent jurisdiction and venue. If action is commenced
in an incompetent court, or in an improper venue,
prescription is interrupted only as to a defendant served
by process within the prescriptive period.
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LSA-C.C. art. 3462. Furthermore, if the one-year prescriptive
period is interrupted, LSA-C.C. art. 1799 provides that the
interruption of prescription against one solidary obligor is
effective against all solidary obligors.
At the outset, we should clarify the status of the Group I
defendants: although they are dismissed, and for that reason alone
are irrelevant, they are also irrelevant because they apparently
had no liability to the plaintiffs in the first place. Thus, for
the purpose of applying the Louisiana in solido principle of LSA-
C.C. art. 1799, the Group I defendants have no value to the
plaintiffs. The fact that they were sued within one year of the
alleged tort, therefore, did not interrupt the prescriptive period
as to either Group II or Group III defendants.
Because the Group II defendants were not, in fact, served
within the prescriptive period, the plaintiffs were forced to rely
on Federal Rule of Civil Procedure 15(c)(2), in order properly to
bring Group II in as defendants. That rule, before it was amended
in 1991, provided in pertinent part:
(c) Relation Back of Amendments. Whenever the
claim or defense asserted in the amended pleading arose
out of the conduct, transaction, or occurrence set forth
or attempted to be set forth in the original pleading,
the amendment relates back to the date of the original
pleading. An amendment changing the party against whom
a claim is asserted relates back if the foregoing
provision is satisfied and, within the period provided by
law for commencing the action against the party to be
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brought in by amendment that party (1) has received such
notice of the institution of the action that the party
will not be prejudiced in maintaining his defense on the
merits, and (2) knew or should have known that, but for
a mistake concerning the identity of the proper party,
the action would have been brought against the party.
Fed. R. Civ. P. 15(c) (amended 1991).4
Under Rule 15(c), an amended complaint relates back to the
time of the original complaint when these conditions are met:
4
The rule in its current form reads as follows:
(c) Relation Back of Amendments.
An amendment of a pleading relates back to the date of
the original pleading when:
(1) relation back is permitted by the law that
provides the statute of limitations applicable to
the action, or
(2) the action or defense asserted in the amended
pleading arose out of the conduct, transaction or
occurrence set forth or attempted to be set forth in the original
pleading, or
(3) the amendment changes the party or the naming
of the party against whom a claim is asserted if
the foregoing provision (2) is satisfied and,
within the period provided by Rule 4(m) for service
of the summons and complaint, the party to be
brought in by amendment (A) has received such
notice of the institution of the action that the
party will not be prejudiced in maintaining a
defense on the merits, and (B) knew or should have
known that, but for a mistake concerning the
identity of the proper party, the action would have
been brought against the party.
Fed. R. Civ. P. 15(c). In their briefs to this court, both parties
refer to this current version of the rule. Obviously, however, the
district court applied the pre-1991 rule, because the court allowed
the joinder of the Group II defendants in November of 1988. In
either case, we are not asked to review the propriety of the
district court's application of the relation-back doctrine, under
pre- or post-1991 rules.
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1. The basic claim in the subsequent complaint must have
arisen out of the conduct set forth in the original complaint;
2. The party sought to be added must have received notice of
the action such that it will not be prejudiced in maintaining
its defense;
3. That party must know or should have known that but for a
mistake concerning identity, the action would have been
brought against it; and,
4. The second and third requirements must have been fulfilled
within the applicable limitations.
Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18
(1986). The same criteria are used under Louisiana state law. Ray
v. Alexander Mall, 434 So. 2d 1083 (La. 1983). The defendants do
not contend that the relation-back doctrine was applied improperly
to name the Group II defendants after the prescriptive period had
run.
We now turn to the merits of the arguments presented in this
appeal.
B
The Richards' argument may be summed up as follows: although
the Group II defendants were sued untimely, under the federal
relation-back rule, they have been made, for all legal purposes,
timely sued defendants. Thus, the Richards continue, at the moment
the Group II defendants were made parties, the Louisiana
prescriptive period was interrupted. When the prescriptive period
was interrupted as to Group II, under LSA-C.C. art. 1799 the
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prescriptive period was interrupted against all solidary obligors.
Because Group III is alleged to be liable in solido with Group II,
the prescriptive period was simultaneously interrupted as to Group
III. The one-year prescriptive period provided in LSA-C.C. art.
3492 therefore will not bar the Richards' claim against Group III.
In response to this argument, Bluffton and Aetna first observe
that it is uncontested that they were not added as defendants until
1994 and that they had no previous notice of the lawsuit as
required by Federal Rule 15; thus, they are not viable defendants
under the federal relation-back doctrine alone. They further
contest the Richards' attempt to make them solidary obligors with
the Group II defendants under LSA-C.C. art. 1799. The period for
filing suit had indisputably prescribed by the time the Group II
defendants were added to the lawsuit; the application of the
federal relation-back doctrine therefore could not have
"interrupted," under Louisiana law, the already-expired
prescriptive period. Bluffton and Aetna therefore argue that the
Richards cannot apply the relation-back doctrine to establish in
solido liability provided for under LSA-C.C. art. 1799, in order to
create for themselves a window of opportunity to name additional
defendants ad infinitum.
III
The question, then, is this: was the prescriptive period ever
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interrupted as to one solidary obligor who remains a defendant in
the suit, so as to effectively interrupt the prescriptive period as
to all solidary obligors? More specifically, the question is
whether the federal relation-back doctrine, and the Louisiana in
solido doctrine--neither of which, when applied individually, can
save the Richards' lawsuit against Bluffton and Aetna--can somehow
be combined to produce a synergistic effect that gives life to an
otherwise lifeless claim.
Although the parties agree that there is no case directly on
point, Bluffton and Aetna cite cases that, by analogy, support
their position. In Simeon v. Doe, 602 So. 2d 77 (La. App. 4th Cir.
1992), rev'd in part on other grounds, 618 So. 2d 848 (La. 1993),
the decedent died from eating raw oysters. Within the one-year
prescriptive period, the plaintiffs sued the restaurant; a few days
after the one-year period had prescribed, they sued the company
that supplied the oysters. Well outside the prescriptive period,
they also sued the Louisiana Department of Health and Human
Resources ("DHHR"). All defendants except DHHR were dismissed.
DHHR then sought dismissal by filing an exception of prescription.
The trial court denied the exception, but the court of appeal
reversed and dismissed the claim against DHHR on the basis of
prescription. The court wrote: "Plaintiffs alleged that the timely
sued defendants and DHHR were solidarily liable, however, when all
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other defendants were dismissed, plaintiffs could no longer prove
a solidary obligation between DHHR and a timely sued defendant.
Therefore, prescription was not interrupted with regard to
plaintiffs' action against DHHR because of a timely filed suit
against a solidary obligor." Simeon, 602 So. 2d at 83.
Simeon makes clear in our case that, because Group I are no
longer defendants, the timely suit against that group cannot be the
basis for interrupting the prescriptive period against Bluffton and
Aetna, under the Louisiana solidary obligor statute. Once the
Group I defendants were dismissed, they no longer were liable for
the alleged tort. Consequently, the Group I defendants were not
liable in solido with any defendants, including the subsequently
joined Group III defendants. Moreover, the untimely sued Group II
defendants remain parties, not because of the operation of LSA-C.C.
art. 1799, but by virtue of Federal Rule of Civil Procedure 15.
Simeon, however, does not directly answer whether the federal
relation-back doctrine served to interrupt the prescriptive period.
The Richards cite no cases in support of their theory that the
federal relation-back doctrine serves to interrupt the Louisiana
prescriptive period. However, the intervenor, INA, cites Billiot
v. American Hospital Supply Corporation, 721 F.2d 512 (5th Cir.
1983), in support of its argument that prescription was interrupted
in this case. In Billiot, the plaintiff sued a prosthesis
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manufacturer within the one-year prescriptive period. Outside that
period, she amended her complaint to name the operating surgeon as
a defendant. The Fifth Circuit held that since she had timely sued
defendants who were bound in solido for her injuries, prescription
was interrupted as to the late-added surgeon defendant.
Bluffton and Aetna correctly point out that this case does
little to help the court to determine whether, in the present case,
prescription was interrupted so as to save a claim against the
Group III defendants. The distinction between Billiot and our case
is obvious; in Billiot, at least one defendant who was a solidary
obligor was sued within the prescriptive period. In the present
case, no solidary obligor was sued within the prescriptive period.
B
Thus, in the last analysis, this case may be clearly and to
the point decided. Simeon makes absolutely clear that the Richards
cannot base interruption of the one-year prescriptive period on the
in solido doctrine of LSA-C.C. art. 1799, where no timely sued
solidary obligor remains in the case. None remain here. Moreover,
with respect to Federal Rule of Civil Procedure 15 and the federal
relation-back doctrine, the Richards do not even argue that they
are entitled to its benefit; it is undisputed that Bluffton and
Aetna did not receive notice of the Richards' lawsuit, nor did they
know that, but for a mistake concerning identity, the action would
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have been brought against them. See Schiavone, 477 U.S. 21, 106
S.Ct. 2379, 91 L.Ed.2d 18 (1986).
Further, the Richards' argument that Rule 15 served to
"interrupt" the state prescriptive period (as applied to the Group
II defendants, and hence to their solidary obligors, the Group III
defendants) has no support in any case law, and for good reason:
as a matter of logic, an expired period cannot be "interrupted";
Rule 15 simply says that, notwithstanding that the period has
prescribed, under specified circumstances an exception will be made
to the statute's bar of claims by creating a legal fiction
regarding the proposed amendment affecting those specific parties.
The rationale of the relation-back rule "is to ameliorate the
effect of the statute of limitations, rather than to promote the
joinder of claims and parties." 6A Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure § 1497, at 85 (1990)
(emphasis added). Although the application of Rule 15 surely
affects rights under statutes of limitations, it affects rights
only belonging to those who qualify for its equitable benefits. In
this case, the Richards are entitled to claim no benefit of the
federal rule in their effort to bring Bluffton and Aetna into this
lawsuit.
In sum, the Richards, having no right to claim the direct
benefit of either the state statute or the federal rule, cannot
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create and then claim a collateral benefit of both.5
IV
CONCLUSION
The Richards have asked that we certify the issue presented by
this case to the Louisiana Supreme Court. We find certification
inappropriate in this case. First, it is not clear from the
Richards' brief what the certified issue would be, or whether that
issue would be one involving state law. Second, the legal issue we
decide today, insofar as it presents an unsettled question at all,
is ultimately a question of federal procedural interpretation:
whether Federal Rule of Civil Procedure 15(c) may be applied in
such a manner as to extend a state limitations or prescriptive
5
As an alternative ground for affirmance, Bluffton and Aetna
argue that the plaintiffs' voluntary dismissal with prejudice
served to "cut off" the interruption of the prescriptive period (if
there ever was such an interruption), so that Aetna and Bluffton
were not timely sued under any theory. They argue that even if
this court ruled that the relation-back doctrine operated to
interrupt the prescriptive period, the dismissal of the entire suit
with prejudice in 1991 "wiped the slate clean," allowing the
prescriptive period to run against Bluffton and Aetna. They cite
Rule 60(b), which provides, "A motion under Rule 60(b) does not
affect the finality of a judgment or suspend its operation."
The Richards filed no reply brief, so we have no
counterargument on this issue. At its heart, however, the argument
is a challenge to the district court's reinstatement of the case in
the first place since, if Bluffton and Aetna are correct as to the
effect of the voluntary dismissal with prejudice, the prescriptive
period would seem to have run as to all the defendants, and the
district court therefore should not have allowed reinstatement.
Although this argument may have served as a second ground upon
which to affirm the dismissal of the complaint, in the light of our
affirmance on other grounds, we need not address its merits.
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period against potential parties who are not subject to the terms
of Rule 15. We have answered that question in the negative. The
district court's ruling must therefore be and is
A F F I R M E D.
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