IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________________________
No. 98-30473
Summary Calendar
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WENDY WHITE,
Plaintiff-Appellant,
versus
STATE OF LOUISIANA, et al,
Defendants,
STERLEN STEVENS; TRANSIT MANAGEMENT
OF SOUTHEAST LOUISIANA, INC.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Louisiana
(97-CV-3169-F)
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April 9, 1999
Before JOLLY, SMITH, AND WIENER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Wendy White appeals the district court’s
denial of her motion to amend her complaint, effectively dismissing
her suit. Concluding that White’s attempted amendment of her
complaint did not “relate back” to the filing of her original
complaint under Federal Rule of Civil Procedure 15(c) and thus
escape the effects of Louisiana’s one-year prescriptive period for
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
tort claims, we affirm.
I.
Facts and Proceeding
On October 8, 1997, White filed suit under Title VII of the
Civil Rights Act of 1964 against Defendant-Appellees Sterlen
Stevens, the State of Louisiana, and Regional Transit Authority
(“RTA”), a political subdivision of Louisiana, alleging that, on
October 14, 1996, Stevens touched her in an offensive, sexual
manner. White served the defendants with process on December 3,
1997. Soon thereafter, White amended her complaint to add Steven’s
employer, Transit Management of Southeast Louisiana, Inc. (“Transit
Management”), as a defendant.
Stevens, the RTA, and Transit Management moved to dismiss
White’s complaint for lack of subject matter jurisdiction, arguing
that none of the defendants was White’s employer and that White had
failed to exhaust her administrative remedies. The district court
granted the motion on both grounds. In January 1998, prior to the
court’s grant of the defendants’ motion to dismiss, but over a year
after the alleged conduct of which White complains allegedly took
place, White moved for leave to amend her complaint for a second
time. Specifically, White sought to drop her Title VII claims and
allege instead that Stevens had committed an intentional tort in
the course and scope of his employment of which Transit Management
knew or should have known. The magistrate judge recommended that
the motion be granted, and the defendants timely objected. The
district court, on review, determined that White’s claim had
2
prescribed as a matter of law and, therefore, denied the motion.
White moved for a rehearing, claiming that, under Rule 15(c),
her amended complaint should “relate back” to the date of her
original pleading and thus not run afoul Louisiana’s prescriptive
period. The district court denied the motion, which it treated as
a motion to alter or amend under Federal Rule of Civil Procedure
59(e), holding that the amended complaint could not relate back to
an original pleading that had already been dismissed for lack of
subject matter jurisdiction. White timely filed an appeal from the
district court’s order denying her motion to amend her complaint.
White did not appeal the district court’s order granting the
defendant’s motion to dismiss for lack of subject matter
jurisdiction.
II.
Analysis
A. Standard of Review
We review a district court’s denial of a motion to amend for
abuse of discretion.2 In exercising its discretion, a district
court may consider a variety of factors, including the futility of
the amendment.3
B. Merits
White’s argument falls short for precisely the reasons set
forth by the district court. Louisiana law establishes a one-year
2
Davis v. United States, 961 F.2d 53, 57 (5th Cir. 1991).
3
Id.
3
prescriptive period for intentional tort claims.4 To interrupt
prescription, a plaintiff must either file suit in a court of
competent jurisdiction and venue or, “[i]f action is commenced in
an incompetent court, . . . prescription is interrupted only as to
a defendant served by process within the prescriptive period.”5
White did not file suit in a competent court.6 Neither did
she serve the defendants within the one year prescriptive period.
Therefore, unless White’s attempted amendment of her complaint
relates back to the time of her original filing, her claim is
prescribed under Louisiana law.7 As the district court held,
however, White’s amended complaint could only relate back to an
original pleading that had already been dismissed for lack of
subject matter jurisdiction. In Reynolds v. United States,8 we
confronted this exact issue. There, the plaintiff filed suit
against the United States under the Federal Tort Claims Act
(“FTCA”) prior to receiving written notice of final denial of her
claim by the appropriate federal agency —— a jurisdictional
4
La. Civ. Code. Ann. art. 3492.
5
Id.
6
See Washington v. Breaux, 782 F.2d 553, 554-55 (5th Cir.
1986) (holding that, under Louisiana law, filing suit in court
without jurisdiction does not interrupt prescriptive period).
7
The federal relation back rule set forth in Rule 15(c)
violates neither the Rules Enabling Act nor the Constitution and,
therefore, applies in federal court in diversity cases controlled
by state law. Johansen v. E.I. Dupont de Nemours & Co., 810 F.2d
1377, 1379 (5th Cir. 1987).
8
748 F.2d 291 (5th Cir. 1984).
4
requirement of the FTCA.9 With leave of the court, the plaintiff
filed an amended complaint, which the district court dismissed
because the relevant limitations period had run.10 In rejecting the
plaintiff’s argument that, under Rule 15(c), the amended complaint
should have related back to the date she properly served the
defendants, we stated “[f]iling on a date which the court lacked
jurisdiction, [the plaintiff’s amended complaint] related back to
a date on which the court also lacked jurisdiction.”11 Here, as in
Reynolds, White’s amended complaint could only relate back to a
date on which the court lacked jurisdiction. White’s proposed
amendment was thus futile, and the district court’s dismissal of
White’s amended complaint was not an abuse of discretion.
AFFIRMED.
9
Id. at 292.
10
Id.
11
Id. at 293.
5