United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
July 5, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-61001
Summary Calendar
GEORGE VAHLE; CURT BEAN TRANSPORT COMPANY INC,
Plaintiffs-Appellants,
v.
RAY WILLIAMS; RAY WILLIAMS, doing business as Ray’s
Trucking; DEEP SOUTH FREIGHT
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Mississippi, Jackson
3:06-CV-188
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Plaintiffs-Appellants George Vahle and Curt Bean Transport
Company, Inc. (“Curt Bean Transport”) appeal the district court’s
dismissal of their claim against defendants-appellees Ray Williams
and Deep South Freight (“Deep South”). This case turns on the
definition of “resident” for purposes of Mississippi’s borrowing
statute, Miss. Code Ann. § 15-1-65, and we AFFIRM.
*
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this opinion should not be published and is not precedent except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.
In April, 2003, the parties to this lawsuit were involved in
a vehicular accident. The accident occurred in Louisiana, but none
of the parties haled from that state. Nearly three years after the
accident, Vahle, a resident of Missouri, and Curt Bean Transport,
an Arkansas corporation, filed this action against Williams, a
Mississippi resident, and Deep South, an Alabama company, in the
Southern District of Mississippi. The defendants moved to dismiss,
arguing that under Mississippi’s borrowing statute, Louisiana’s
one-year prescription period barred the action. The district court
agreed and dismissed the case. We review a district court’s grant
of a motion to dismiss de novo, applying the same standard as the
district court. See Frank v. Delta Airlines, Inc., 314 F.3d 195,
197 (5th Cir. 2002).
Mississippi’s borrowing statute provides that:
[w]hen a cause of action has accrued outside of this
state, and by the laws of the place outside this state
where such case of action accrued, an action thereon
cannot be maintained by reason of lapse of time, then no
action thereon shall be maintained in this state;
provided, that where such a cause of action has accrued
in favor of a resident of this state, this state’s law on
the period of limitations shall apply.
Miss. Code Ann. § 15-1-65. The appellants concede that under
Louisiana law, their claims would be barred by the one-year
prescription period. See La. Rev. Code Art. 3492. Moreover, they
concede that Vahle is a Missouri resident, and Curt Bean Transport
an Arkansas corporation. Their lone contention, therefore, is that
because they have conducted significant business in Mississippi,
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they should be considered residents of Mississippi for purpose of
the borrowing statute, and that Mississippi’s more generous three-
year statute of limitations should govern their claims. As
explained below, this is not accurate.
The appellants rely heavily on St. Paul Fire & Marine Ins. Co.
v. Paw Paw’s Camper City, Inc., in which we held that a non-
resident corporation “qualified to do business” in Mississippi is
a resident for purposes of the borrowing statute and enjoys “the
same . . . rights and privileges as a domestic corporation.” 346
F.3d 153, 156 (5th Cir. 2003)(citing C.H. Leavell & Co. v. Doster,
211 So. 2d 813 (Miss. 1968)). Nowhere in St. Paul Fire did we hold
that any plaintiff that simply does business in Mississippi
qualifies as a “resident” for purposes of the borrowing statute.
Curt Bean Transport possesses neither a license nor a valid
certificate of authority to do business in Mississippi, and is
therefore not “qualified to do business” in the state. It has
avoided the burdens that accompany being a resident, and cannot now
reap the benefits. Furthermore, Vahle is a person, not a
corporation, and falls outside even the broadest reading of St.
Paul Fire, which only interpreted the borrowing statute as it
related to a corporation.
The plaintiffs also raise a Fourteenth Amendment challenge to
the borrowing statute for the first time on appeal. We do not
review claims raised for the first time on appeal. See Stewart
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Glass & Mirror, Inc. v. U.S. Auto Glass Discount Centers, Inc., 200
F.3d 307, 316–17 (5th Cir. 2000).
As the district court held, the plaintiffs’ claims are not
governed by Mississippi’s three-year statute of limitations, but
rather Louisiana’s one-year prescription period. Their claims are
accordingly time-barred.
For the foregoing reasons, we AFFIRM the district court.
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