United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit May 22, 2003
No. 02-30305 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA, EX REL, PAUL G. MATHEWS,
Plaintiff - Appellant,
VERSUS
HEALTHSOUTH CORP.,
Defendant - Appellee.
Appeal from the United States District Court
For the Western District of Louisiana
Before BENAVIDES and DENNIS, Circuit Judges, and WALTER*, District
Judge.
DENNIS, Circuit Judge:
Plaintiff-appellant Paul G. Mathews appeals the district
court’s dismissal of his state-law age discrimination claim against
defendant-appellee HealthSouth Corp. (“HealthSouth”) on statute of
limitations grounds. Because Mathews did not commence this claim
within one year of his resignation from HealthSouth, we AFFIRM the
*
Senior District Judge of the Western District of Louisiana,
sitting by designation.
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district court’s decision.
I. Background
Mathews had been employed by Continental Medical Systems, Inc.
(“Continental”) as the Chief Executive Officer of Central Louisiana
Rehabilitation Hospital since February 1996. In October 1997,
HealthSouth acquired Continental, including Central Louisiana
Rehabilitation Hospital. Mathews alleges that HealthSouth forced
him to resign from his position on August 4, 1998.
On April 1, 1999, Mathews filed a qui tam action in the
Western District of Louisiana against HealthSouth under seal
pursuant to the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq.,
and on June 22, 1999, he filed his First Supplemental and Restated
Complaint further developing his FCA claim. This claim alleged
that HealthSouth was engaged in a fraudulent scheme to submit false
Medicare claims.
On August 2, 1999, Mathews delivered to the district court a
Second Supplemental Amended and Restated Complaint, but failed to
request leave of court. This amended complaint added state law
claims for wrongful termination and age discrimination. The
wrongful termination claim was related to the original FCA claim.
It alleged that HealthSouth forced Mathews to resign when he
refused to participate in the scheme described in his original
complaint. But Mathews’s age discrimination claim had no factual
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relationship to his initial allegations because it claimed that
Mathews was forced to resign so that HealthSouth could hire a
younger replacement.
On August 5, 1999, the clerk of court issued a deficiency
notice to Mathews noting the failure to request leave. On August
9, 1999, the plaintiff re-delivered the amended complaint to the
court with a request for leave of court to file this pleading. The
court granted the request the same day.
Because the FCA claim was a qui tam action, Mathews could
proceed against HealthSouth on behalf of the United States if the
United States declined to intervene. On February 29, 2000, the
United States did decline to intervene, and Mathews served
HealthSouth with all three complaints. After being served,
HealthSouth filed a motion seeking dismissal of Mathews’s three
claims. On October 12, 2000, the district court: (1) dismissed the
FCA claim without prejudice because Mathews failed to plead fraud
with particularity; (2) dismissed the age discrimination claim
because it was barred by the statute of limitations; but (3)
allowed the wrongful termination claim to proceed because the facts
and circumstances of this claim related back to the original
complaint, and thus was timely. After the parties settled the
wrongful termination claim, Mathews appealed the district court’s
dismissal of his age discrimination claim.
II. Analysis
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We review de novo the district court’s dismissal of Mathews’s
age discrimination claim on statute of limitations grounds. See
Clymore v. United States, 217 F.3d 370, 373 (5th Cir. 2000). The
plaintiff’s charge of age discrimination is a diversity claim based
on Louisiana law. Therefore, Louisiana law will determine the
applicable statute of limitations and whether the limitations
period has been tolled. Vaught v. Showa Denko K.K., 107 F.3d 1137,
1145-46 (5th Cir. 1997). Under Louisiana law, delictual actions
have a prescriptive period of one year from the date of the injury.
La. Civ. Code art. 3492. If a plaintiff “commences action” against
a defendant within one year of the date of his injury, then his
claim will be timely.1 Id. art. 3462. Here, the date of the
injury was August 4, 1998, when Mathews alleges he was forced to
resign. Therefore, he needed to commence his age discrimination
claim by August 4, 1999.2
Both parties acknowledge that the federal procedural rules
determine when an action commences in federal court. However, the
1
The claim must also be commenced in a court of competent
jurisdiction and venue. La. Civ. Code art. 3462. It is undisputed
that the Western District of Louisiana has diversity jurisdiction
and is a proper venue for this claim.
2
Because this claim is factually distinct from the FCA
claim, Mathews does not argue on appeal that the claim relates back
to either of the earlier complaints. If the claim had related back
to the earlier complaints, it would be timely filed because the
initial two complaints were filed before August 4, 1999.
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parties disagree as to which federal rules apply. HealthSouth
argues that Rule 15(a) of the Federal Rules of Civil Procedure
(“FRCP”) is the relevant rule for amending pleadings, including
amended complaints. Rule 15(a) provides: “A party may amend the
party’s pleading once as a matter of course at any time before a
responsive pleading is served .... Otherwise a party may amend the
party’s pleading only by leave of court or by written consent of
the adverse party.” Fed. R. Civ. P. 15(a). Therefore, under FRCP
Rule 15(a), Mathews was required to request leave of court before
he could file his second amended complaint.
HealthSouth further contends that if leave is required, then
an amended complaint has no legal effect until the court grants
leave to file it. Professors Charles Alan Wright and Arthur R.
Miller aptly summarize the law with respect to amended pleadings
filed without leave of court:
In general, if an amendment that cannot be made as of
right is served without obtaining the court’s leave or
the opposing party’s consent, it is without legal effect
and any new matter it contains will not be considered
unless the amendment is resubmitted for the court’s
approval. However, some courts have held that an
untimely amended pleading served without judicial
permission may be considered as properly introduced when
leave to amend would have been granted had it been sought
and when it does not appear that any of the parties will
be prejudiced by allowing the change.
6 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 1484, at 601
(1990); see also Hoover v. Blue Cross & Blue Shield, 855 F.2d 1538
(11th Cir. 1988). Therefore, HealthSouth maintains that Mathews’s
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second amended complaint had no legal effect until the court
granted Mathews permission to file it on August 9. It further
contends that the exception described by Professors Wright and
Miller, which gives legal effect to amended pleadings without leave
if there is no prejudice to the opposing party, is not applicable
here because the loss of the affirmative defense of statute of
limitations would prejudice HealthSouth. Therefore, it argues that
the age discrimination claim was not timely commenced and is barred
by the statute of limitations.
Mathews counters that FRCP Rules 3 and 5(e), not Rule 15(a),
determine when an action is commenced in federal court. Rule 3
states: “A civil action is commenced by filing a complaint with the
court.” Fed. R. Civ. P. 3. Rule 5(e) provides: “The filing of
papers with the court as required by these rules shall be made by
filing them with the clerk of court .... The clerk shall not
refuse to accept for filing any paper presented for that purpose
solely because it is not presented in proper form.” Fed. R. Civ.
P. 5(e). A pleading, including a complaint, is considered filed
when placed in the possession of the clerk of court. McClellon v.
Lone Star Gas Co., 66 F.3d 98, 101 (5th Cir. 1995); see also 4B
WRIGHT ET AL. § 1153, at 471 (2002) (“The original complaint [is]
considered filed when ... placed in the possession of the clerk of
the district court, which simply means delivery to the appropriate
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office of the courthouse”); 4 WRIGHT ET AL., § 1052, at 219-22
(“Filing a complaint requires nothing more that the delivery of the
document to a court officer authorized to receive it.”).
Therefore, Mathews maintains that his second amended complaint was
filed when it was delivered to the court on August 2.
In McClellon v. Lone Star Gas Co., a pro se plaintiff filed a
procedurally deficient original complaint with the district court
within the ninety-day period for appealing an EEOC determination.
66 F.3d at 100. The clerk of court issued a deficiency notice, and
the plaintiff submitted a satisfactory complaint after the
applicable ninety-day period. Id. This court held that under FRCP
Rule 5(e), a technically deficient pleading is still considered
“filed” when it is placed in the possession of the court. Mathews
contends that we are bound by McClellon because the failure to
request leave of court merely made the amended complaint
technically deficient. Thus, the complaint was filed for purposes
of the statute of limitations on August 2, when it was delivered to
the court, not on August 9, when it was corrected.
We disagree. First, McClellon does not control here because
it concerns the filing of an original complaint, not an amended
one. As the more specific rule with respect to amended pleadings,
Rule 15(a), not Rule 5(e) governs. See Landmark Land Co. v. Office
of Thrift Supervision, 948 F.2d 910, 912 (5th Cir. 1991) (“[A]
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specific provision controls over one of more general
application.”). Under Rule 15(a), Mathews needed permission before
his amended complaint could be filed, which he did not have on
August 2. Second, failing to request leave from the court when
leave is required makes a pleading more than technically deficient.
The failure to obtain leave results in an amended complaint having
no legal effect. Without legal effect, it cannot toll the statute
of limitations period.
In addition, this lack of legal effect would not be alleviated
by the exception discussed by Professors Wright and Miller. This
exception is limited to situations in which the plaintiff could
still re-file the complaint without prejudicing another party. For
example, in Hicks v. Resolution Trust Corp., 767 F.Supp. 167, 170
(N.D. Ill. 1991), the court considered the amended complaint filed
even though the plaintiff never requested leave because the
complaint “merely alleged additional theories of liability based on
the same set of facts,” which the court would have allowed the
plaintiff to re-file. But it was more procedurally expedient to
consider the complaint filed than to strike the amended complaint
and then grant leave to file another complaint that raised the
exact same issues. And more important, the parties would be in the
same position regardless of which procedure the court used.
Similarly, in Straub v. Desa Industries, Inc., 88 F.R.D. 6, 9 (M.D.
Penn. 1980), an amended complaint alleging a new cause of action
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was deemed filed without a request for leave because the claim was
not yet barred by the statute of limitations. Therefore, this
claim could also have been re-filed without affecting the rights of
the parties. In both cases, the amended complaint was considered
filed because leave would have been granted had it been sought and
no party would have been prejudiced if the formal requirements of
requesting leave were bypassed.
But that is not the situation here because HealthSouth would
have been prejudiced if the court did not follow the formal
requirements of Rule 15(a). Although it is true that upon re-
filing leave would have been granted (as it was a week later), the
loss of the affirmative defense of prescription would prejudicially
affect HealthSouth. See Elbaor v. Tripath Imaging, Inc., 279 F.3d
314, 318 (5th Cir. 2002)(holding that the loss of a statute of
limitations defense prejudices a defendant); Phillips v. Ill.
Central Gulf R.R., 874 F.2d 984, 987-88 (5th Cir. 1989)(holding
that the loss of a statute of limitations defense constitutes clear
legal prejudice). Thus, this exception does not apply and the
amended complaint could not have been filed until leave of court
was granted on August 9. Because Mathews’s age discrimination
claim was not commenced until that date, it is barred by the
statute of limitations.
III. Conclusion
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For the foregoing reasons, we AFFIRM the district court’s
decision dismissing his age discrimination claim.
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