Luckett v. Delta Air Lines, Inc

                                 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