Revised April 1, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-30441
_____________________
JETTIE MAE LUCKETT Plaintiff-Appellant
vs
DELTA AIRLINES, INC. Defendant-Appellee
___________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
___________________________________________________________
March 29, 1999
Before KING, Chief Judge, STEWART, Circuit Judge, and LITTLE1,
District Judge.
F. A. LITTLE, JR., District Judge:
Jettie Mae Luckett appeals the district court’s ruling
that it had jurisdiction over her suit and dismissing with
prejudice her suit on the basis of prescription. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On 17 January 1996 Jettie Mae Luckett purchased a ticket
from Delta Airlines to fly from Monroe, Louisiana to Chino,
California. That same day, Luckett began her journey by
1
District Judge of the Western District of Louisiana, sitting by designation.
checking a suitcase that contained, among other items, her
prescription heart medication. Luckett’s luggage was lost in
transit and was unavailable to her when she arrived in Chino.
According to appellant’s complaint, she completed a lost
luggage claim form and proceeded to her final destination
without her heart medication.
Two days later, the airline had not located Luckett’s
luggage. The connecting carrier issued her a check in the
amount of $123.77 for the purchase of necessities.2 On 20
January 1996, Luckett became ill and was transported to Chino
Valley Hospital where she was diagnosed as suffering from
congestive heart failure, pulmonary edema, and respiratory
distress.3 Luckett remained hospitalized until 25 January
1996 and was unconscious a portion of this time. At the time
of Luckett’s discharge from the hospital, her physicians
informed her that the lapse in medication contributed to her
heart failure.
On 13 January 1997, Luckett filed suit in the Fourth
Judicial District Court, Ouachita Parish, Louisiana.
2
Skywest Airlines, the airline on Luckett’s journey from Los Angeles to Chino, issued the check.
3
There is discrepancy in the record about whether Luckett retrieved her luggage before she became ill. In
her original petition, she claimed that she picked up her luggage before she became ill. In her opposition to defendant’s
motion for summary judgment and her appellate brief, Luckett states that she became ill before recovering her luggage.
The timing of the retrieval of the luggage is irrelevant, and either version of facts would lead this court to the same
decision.
2
Appellant alleged that Delta Airlines lost her heart
medication and, therefore, caused her subsequent heart
failure. Luckett repeatedly has emphasized that she is suing
in tort, not contract, pursuant to Louisiana Civil Code
article 2315.4 She did not serve appellee Delta Airlines
until 21 January 1997. On 18 February 1997, Delta Airlines
filed a declinatory exception of improper venue.5 The
following day appellee removed the action to the United States
District Court for the Western District of Louisiana and on 17
November 1997 moved for summary judgment on the basis that
appellant’s action had prescribed. After finding that it had
jurisdiction, the district judge dismissed Luckett’s suit with
prejudice based upon prescription.6
II. ANALYSIS
A. The District Court Had Subject Matter Jurisdiction
Appellant argues that the district court did not have
jurisdiction to decide the merits of the case. District
4
See Joint Status Report, Plaintiff’s Motion to Remand, and Plaintiff’s Appellate Brief, p. 19.
5
In state court, appellee filed its exception of improper venue prior to filing any other motions and thus,
preserved the exception under Louisiana law. See Phillips v. Patterson Insurance Co., 704 So.2d 246 (La. 1998).
6
On 10 July 1997 Delta Airlines first moved for summary judgment based upon prescription. In her
memorandum in opposition, Luckett argued that the district court did not have jurisdiction. In a 15 August 1997
memorandum ruling, the district judge ordered plaintiff to file a motion to remand if she felt that the court lacked
jurisdiction. Appellant did so, and on 16 October 1997 the motion to remand was denied. On 17 November 1997 appellee
Delta Airlines reurged its motion for summary judgment.
3
courts have original jurisdiction over civil actions where the
amount in controversy exceeds $75,000 and there is diversity
between all parties. 28 U.S.C. § 1332 (1994). The domicile
of neither the appellant nor the appellee is disputed.
Luckett is domiciled in Louisiana while Delta Airlines is
incorporated in Delaware with its principal place of business
in Georgia. The sole jurisdictional issue is whether the
district court erred in deciding that the amount in
controversy exceeded $75,000.
Several Fifth Circuit decisions have established a clear
analytical framework for resolving disputes concerning the
amount in controversy. Plaintiffs in Louisiana state courts,
by law, may not specify the numerical value of the damage
claim. La. Code Civ. P. art. 893. In such a situation, the
removing defendant must prove by a preponderance of the
evidence that the amount in controversy exceeds $75,000. De
Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993). The
defendant may make this showing in either of two ways: (1) by
demonstrating that it is “facially apparent” that the claims
are likely above $75,000, or (2) “by setting forth the facts
in controversy—preferably in the removal petition, but
sometimes by affidavit—that support a finding of the requisite
4
amount.” Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335
(5th Cir. 1995)(emphasis in original).
Reading the face of the complaint, the district court did
not err in finding that Luckett’s claims exceeded $75,000. A
de novo standard of review applies when the district court
denies a motion to remand. Allen, 63 F.3d at 1336. In the
complaint, based on a tort theory of recovery, appellant
alleged damages for property, travel expenses, an emergency
ambulance trip, a six day stay in the hospital, pain and
suffering, humiliation, and her temporary inability to do
housework after the hospitalization. Therefore, the district
court had jurisdiction to decide the merits of the case.
B. The Granting of Summary Judgment
1. Prescription in General
The standard of review of the granting of summary
judgment is de novo. Webb v. Cardiothoracic Surgery
Associates, 139 F.3d 532, 536 (5th Cir. 1998). In Louisiana,
delictual actions, or actions in tort, are subject to a
liberative prescription of one-year commencing the day injury
or damage is sustained. La. Civ. Code art. 3492. The filing
of an action in a court of competent jurisdiction and proper
venue within the one year prescriptive period interrupts
prescription for as long as the action is pending. La. Civ.
5
Code art. 3463. When a plaintiff files suit in an incompetent
court or in an improper venue, a different rule applies. In
order to interrupt prescription, the plaintiff must serve the
defendant before the accrual of the prescriptive period. La.
Civ. Code art. 3462, 3463 and cmt. (c) to art. 3463;
Washington v. Breaux, 782 F.2d 553 (5th Cir. 1986); Foster v.
Breaux, 263 La. 1112, 270 So.2d 526 (La. 1972); Hazel v.
Allstate Insurance Co., 240 So.2d 431 (La. App. 3rd Cir.
1970).
2. Appellant Filed Suit in an Improper Venue
In its motion for summary judgment, appellee argued that
Luckett filed her action in an improper venue and failed to
serve appellee until after the cause of action had prescribed.
The proper venue for an action against a foreign corporation
is the parish where its principal business establishment in
the state is located, as designated in its application to do
business in Louisiana.7 La. Code Civ. P. art. 42(4).
Ouachita Parish is not the situs of Delta Airlines’ principal
business establishment. As designated in its certificate of
corporate information filed as required by law with the
Louisiana Secretary of State, the principal business
7
The other possible venue for a delictual action is the parish where the wrongful conduct occurred or where
the damages were sustained. La. Code Civ. P. art. 74. In this case, both would be in California, and therefore, Louisiana
Code of Civil Procedure article 74 is not applicable in this instance.
6
establishment of Delta Airlines is Jefferson Parish,
Louisiana. Therefore, venue was not proper in Ouachita Parish
where Luckett filed suit.
3. The Prescriptive Period for Appellant’s Cause of
Action Commenced on 20 January 1996
The fact that a plaintiff files suit in an improper venue
is significant only if service of process is made after the
one-year prescriptive period. To determine if Luckett served
Delta Airlines outside the one-year prescriptive period, we
must decide when the period commenced. Prescription does not
begin to accrue until injury or damage is sustained. La. Civ.
Code art. 3492; see Rayne State Bank & Trust Co. v. National
Union Fire Insurance Co., 483 So.2d 987 (La. 1986). At the
time the prescriptive period commences, a plaintiff must be
able to state a cause of action. Id. at 995. Notice of a
wrongful act alone will not suffice to commence the
prescriptive period; in order for the plaintiff to state a
cause of action, damages must also result. Damages must be
actual and appreciable and not merely speculative. Harvey v.
Dixie Graphics, Inc., 593 So.2d 351, 352 (La. 1992).
Louisiana law does not require, however, that the quantum of
damages be certain. Id.
Appellant argues that the prescriptive period did not
commence until 25 January 1996 when Luckett’s physician first
7
explained the reasons for her hospitalization.8 The
prescriptive period begins when a potential plaintiff
discovers or should have discovered the delict, the damage,
and the relationship between the two. New York Life Insurance
Co. v. Deshotel, 142 F.3d 873, 879 (5th Cir. 1998).
Constructive knowledge is “more than apprehension that
something might be wrong but less than actual knowledge.” The
Kendall Co. v. Southern Medical Supplies, 913 F.Supp. 483, 488
(E.D. La. 1996). Thus, the prescriptive period commenced when
Luckett knew or should have known of the wrongful act, her
damages, and their connection.
Luckett argues that she did not know the relationship
between her damages and the wrongful act until the
conversation with her physician when she was discharged. This
is not the law. On 20 January 1996 when Luckett began to feel
sick and went to the hospital, she knew that the airline had
misplaced her luggage and that she had not taken her
medication for several days. At that point she was aware that
her heart problems were caused by her failure to take the
medication. She had more than an apprehension that her
8
Because Luckett’s attorney argued in a memorandum before the district court that the action prescribed
on 17 January 1997, there may be an argument that there was a judicial admission. See Plaintiff’s Reason’s Why
Sanctions Could Be Stayed in These Proceedings, p. 1. Appellees argue that prescription commenced on 17 January 1996
when Luckett first became aware that her luggage was lost. The commencement of prescription requires a wrongful
act and damage. While 17 January is the date of Delta’s allegedly wrongful act, it is not the day that damage complained
of by the appellant was sustained. Therefore, we choose to view the facts most favorably to the appellants.
8
declining physical condition was connected to her inability to
take the prescribed medicine. But for the loss of the
luggage, the damage would not have occurred.
The commencement of prescription does not necessarily
wait for the pronouncement of a victim’s physician or of an
expert. See Hunter v. Sisters of Charity of the Incarnate
Word, 236 So.2d 565, 568 (La. App. 1st Cir. 1970)(holding that
prescription commenced on plaintiff’s medical malpractice
claim when she fell out of her hospital bed, not when a
chiropractor told her that the fall caused her pain). In
other words, the prescriptive period commences when there is
enough notice to call for an inquiry about a claim, not when
an inquiry reveals the facts or evidence that specifically
outline the claim. See Terrel v. Perkins, 704 So.2d 35, 39
(La. App. 1st Cir. 1997). To decide otherwise would be to say
that a plaintiff must know the cause of her damage, taking
away the constructive knowledge component of the rule. The
prescriptive period of this action commenced on 20 January
1996 when Luckett first sustained the complained of damages
9
resulting from the loss of her heart medication.9 See La.
Civ. Code art. 3492.
III. CONCLUSION
Because the one-year prescriptive period for Luckett’s
tort action commenced on 20 January 1996, her claim prescribed
20 January 1997. The filing of the suit did not interrupt
prescription, because Luckett filed in an improper venue and
did not serve Delta Airlines until 21 January 1997.
Therefore, the district court did not err in granting
appellee’s motion for summary judgment. WE AFFIRM.
9
Appellants argue that the check Skywest Airlines gave Luckett on 19 January 1996 interrupted prescription
because the check acknowledged the debt. Without deciding whether the check did in fact operate as an
acknowledgment by Delta Airlines, we note that even if it did, this action still is prescribed. The alleged acknowledgment
occurred on 19 January 1996, but Luckett did not serve defendant until 21 January 1997.
10