Franco v. Mabe Trucking

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit

FILED
July 8, 2021
No. 19-30316 Lyle W. Cayce
Clerk

David Franco,

Plaintiff—Appellant,

versus

Mabe Trucking Company, Incorporated; Richard Agee;
National Interstate Insurance Company,

Defendants—Appellees.

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:17-CV-871

Before King, Jones, and Dennis, Circuit Judges.
James L. Dennis, Circuit Judge:
David Franco sued Mabe Trucking Co. (“Mabe”) in the United
States District Court for the Eastern District of Texas after Franco’s car
accident with a truck owned by Mabe and operated by a Mabe employee. The
car-truck mishap had occurred in Louisiana a few miles from its border with
Texas. The Texas federal district court concluded that Mabe lacked
sufficient contacts with Texas to subject the company to personal jurisdiction
in the state. However, the court found that it was in the interests of justice
not to dismiss the case and instead transferred it to the United States District
 No. 19-30316

Court for the Western District of Louisiana, the federal district court sitting
in the district in which the accident occurred. But the Louisiana federal
district court concluded that Franco’s claims were untimely and granted
summary judgment for Mabe. For the following reasons, we REVERSE and
REMAND.
I.
On November 24, 2015, Franco was involved in a vehicular accident
with a truck owned by Mabe and operated by Mabe’s employee. The
accident occurred in Louisiana, three miles from the Texas border. Franco
filed suit against Mabe in the Eastern District of Texas on November 22,
2016, two days before the one-year anniversary of the accident, and Franco
served Mabe on January 20, 2017. Finding that it lacked personal jurisdiction
over Mabe due to Mabe’s lack of significant contacts with Texas, the Texas
federal district court transferred the case to the Western District of
Louisiana, which would likely have possessed specific jurisdiction under the
Louisiana long-arm statute to try claims against Mabe related to the accident
because the court sat within the district in which the accident occurred. 1 See

1
Federal Rule of Civil Procedure 4(k)(1)(a) provides that “[s]erving a summons or
filing a waiver of service establishes personal jurisdiction over a defendant . . . who is subject
to the jurisdiction of a court of general jurisdiction in the state where the district court is
located.” The Louisiana long-arm statute establishes the jurisdiction of Louisiana courts
over nonresidents, and it provides, as relevant here:
A. A court may exercise personal jurisdiction over a nonresident, who acts
directly or by an agent, as to a cause of action arising from any one of the
following activities performed by the nonresident:
....
(3) Causing injury or damage by an offense or quasi offense
committed through an act or omission in this state.

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Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (noting that a
court’s exercising specific jurisdiction over an out-of-state defendant is
constitutional when a suit arises out of the defendant’s contacts with the
forum state). The Texas district court magistrate judge explained: “Because
the Court lacks personal jurisdiction over [Mabe], and hence venue under
§ 1391(b)(1) is improper, the Court finds it suitable in the ‘interests of
justice’ to transfer the case to the Western District of Louisiana, the district
where the accident occurred. See 28 U.S.C. § 1406(a).” 2
Mabe moved for summary judgment in the Louisiana district court,
arguing that Franco’s claims had prescribed under Louisiana law. 3 See LA.
CIV. CODE arts. 3492, 3462. Louisiana Civil Code Article 3492 establishes
a one-year prescriptive period for delictual actions like the one Franco
brought against Mabe. Article 3462 provides that prescription is interrupted
when a party files suit “in a court of competent jurisdiction and venue”; if a
party files suit in a court of incompetent jurisdiction or improper venue,
however, prescription is interrupted “only as to a defendant served by
process within the prescriptive period.” LA. CIV. CODE art. 3462. Mabe
argued that Franco’s claims were prescribed because he filed suit in the

LA. STAT. ANN. § 13:3201. Ultimately, however, we need not further examine whether
a Louisiana court of general jurisdiction—and thus, pursuant to Rule 4(k)(1)(a), the
Louisiana federal district court—would have had personal jurisdiction over Mabe had
Mabe not consented because Mabe does not challenge it and, unlike with subject-matter
jurisdiction, objections to personal jurisdiction may be waived. Shirley v. Maxicare Texas,
Inc., 921 F.2d 565, 568 (5th Cir. 1991).
2
Neither party disputes the Texas federal district court’s determination that,
under federal law, the Eastern District of Texas was an improper venue without personal
jurisdiction over Mabe.
3
Federal courts apply Louisiana prescription law to diversity actions which
Louisiana law governs, as “state statutes of limitations are considered substantive for
purposes of Erie analysis.” Vincent v. A.C. & S., Inc., 833 F.2d 553, 555 (5th Cir. 1987).

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Texas district court, which was an incompetent court, and failed to serve
Mabe within the one-year prescriptive period.
The Western District of Louisiana court initially denied Mabe’s
motion, concluding that 28 U.S.C. § 1631 rendered Franco’s claims timely.
Under § 1631, when a federal “court finds that there is a want of jurisdiction”
and that a transfer would be “in the interest of justice,” “the court . . . shall
transfer” the action to another court “in which the action could have been
brought” and the transferred action “shall proceed as if it had been filed in .
. . the court to which it was transferred . . . on the date it was actually filed in
. . . the court from which it was transferred.” The Louisiana district court
concluded that the transfer from the Texas district court was a § 1631 transfer
in “all but name,” and therefore the case must be treated “as if” it had been
filed in the Western District of Louisiana on November 22, 2016, which is
within Louisiana’s one-year prescriptive period.
On Mabe’s motion for reconsideration, however, a different presiding
judge of the Louisiana district court reversed the ruling. The court reasoned
that § 1631 was not intended to govern prescription and that Article 3462 is a
substantive Louisiana law that controlled the diversity action under the
doctrine of Erie Railroad Co. v. Tompkins, 304 U.S. 64, (1938). The court
therefore concluded that Franco’s claims were prescribed, entered judgment
for Mabe, and dismissed Franco’s claims with prejudice. This appeal
followed.
II.
We must first determine whether the Western District of Louisiana
properly applied § 1631 to the transferred case. The Eastern District of
Texas cited only § 1406(a) when it transferred the case. If the transfer was
governed by only § 1406(a) and not § 1631, then § 1631’s interaction with
Louisiana’s prescriptive period is not at issue here. If the case was

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transferred in accordance with § 1631, however, we must next evaluate
§ 1631’s interaction with Louisiana law to determine whether the Louisiana
federal district court properly granted Mabe summary judgment on the basis
that Franco’s claims are prescribed. We review a district court’s grant of
summary judgment and issues of statutory interpretation de novo. Romero v.
City of Grapevine, 888 F.3d 170, 175 (5th Cir. 2018); In re Glenn, 900 F.3d
187, 189 (5th Cir. 2018).
A.
1.
We begin by addressing whether § 1631 is relevant when a district
court determines that there is a lack of personal, as opposed to subject-
matter, jurisdiction and the interests of justice demand transfer. Mabe argues
that § 1631 applies only when a court lacks subject-matter jurisdiction. Our
court has not yet had occasion to decide this question. See Bentz v. Recile, 778
F.2d 1026, 1028 n.5 (5th Cir. 1985) (noting the issue but explaining that we
need not reach it). If Mabe is correct, there is no need for us to address
further whether § 1631 applies to this transfer, for it is undisputed that the
Eastern District of Texas possessed subject-matter jurisdiction over
Franco’s claim. See 28 U.S.C. § 1332(a) (granting district courts original
diversity jurisdiction).
“The task of statutory interpretation begins and, if possible, ends with
the language of the statute.” Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d
481, 486 (5th Cir. 2013). “When the language is plain, we ‘must enforce the
statute’s plain meaning, unless absurd.’” Id. (quoting In re Nowlin, 576 F.3d
258, 261-62 (5th Cir. 2009)); see also BedRoc Ltd. v. United States, 541 U.S.
176, 183 (2004) (“The preeminent canon of statutory interpretation requires
us to ‘presume that the legislature says in a statute what it means and means

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in a statute what it says there.’” (alteration omitted) (quoting Conn. Nat’l
Bank v. Germain, 503 U.S. 249, 253-54 (1992))).
Section 1631 states:
Whenever a civil action is filed in a court as defined in section
610 of this title . . . and that court finds that there is a want of
jurisdiction, the court shall, if it is in the interest of justice,
transfer such action or appeal to any other such court . . . in
which the action or appeal could have been brought at the time
it was filed . . ., and the action or appeal shall proceed as if it
had been filed in . . . the court to which it is transferred on the
date upon which it was actually filed in . . . the court from which
it is transferred.
28 U.S.C. § 1631.
The text does not confine itself to personal or subject-matter
jurisdiction, but instead “a want of jurisdiction” generally. Black’s Law
Dictionary defines “want of jurisdiction” to encompass a lack of subject-
matter jurisdiction or a lack of personal jurisdiction. See WANT OF
JURISDICTION, Black’s Law Dictionary (11th ed. 2019) (“A court’s lack of
power to act in a particular way or to give certain kinds of relief. A court . . .
may lack authority over a person or the subject matter of a lawsuit . . . .”).
The entry for “jurisdiction” also includes sub-entries for both subject-matter
jurisdiction (“Jurisdiction over the nature of the case and the type of relief
sought”) and personal jurisdiction (“A court’s power to bring a person into
its adjudicative process”). See JURISDICTION, Black’s Law Dictionary
(11th ed. 2019). Moreover, Congress used “subject-matter jurisdiction”
elsewhere in Title 28 and could have similarly restricted § 1631’s ambit if it
so wished. See, e.g., 28 U.S.C. § 1390(a) (“[T]he term ‘venue’ refers to the
geographic specification of the proper court or courts for the litigation of a
civil action that is within the subject-matter jurisdiction of the district courts
in general.”); Lozano v. Montoya Alvarez, 572 U.S. 1, 16 (2014) (explaining

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that when legislators did not adopt “obvious alternative” language, “the
natural implication is that they did not intend” the alternative). Accordingly,
the plain text of § 1631 indicates that it may apply when a district court finds
that it lacks subject-matter jurisdiction, personal jurisdiction, or both.
The historical context of § 1631’s enactment also suggests that it was
intended to address situations in which a court lacks personal jurisdiction but
transfer rather than dismissal is in the interest of justice. Until 1948, courts
had no statutory transfer authority; a dismissal without prejudice was their
only clear recourse when a case was filed in an incorrect or inconvenient
forum, which often worked an injustice on plaintiffs who were time-barred
from refiling. See Ellis v. Great S.W. Corp., 646 F.2d 1099, 1104 (5th Cir.
1981); Jeremy Jay Butler, Venue Transfer When A Court Lacks Personal
Jurisdiction: Where Are Courts Going with 28 U.S.C. § 1631?, 40 Val. U. L.
Rev. 789, 843 & n.50 (2006). To address this issue, Congress enacted 28
U.S.C. § 1404(a), which authorized a discretionary transfer when venue was
proper but another venue was more convenient, and § 1406(a), which
required a transfer when venue was improper but justice nonetheless
weighed in favor of transfer to a proper venue rather than dismissal. Transfer
in the Federal Courts in the Absence of Personal Jurisdiction, 61 Colum. L. Rev.
902, 902 (1961). The distinction between the two provisions had important
consequences for the outcomes of cases because the transferor court’s
choice-of-law rule applied following a § 1404(a) transfer, but the transferee
court’s choice-of-law rule applied after a § 1406(a) transfer. 4 See Butler,
supra, at 799-803.

4
Under Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941), a district court
must generally apply the choice-of-law approach of the state in which it sits. However, if
this rule were applied to require a transferee court to apply the law of the state in which it
sits following a transfer under § 1404(a), a defendant could alter the outcome of a properly

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Courts were divided over whether personal jurisdiction over a
defendant was required before a transfer could occur under these statutes
until the Supreme Court ruled in Goldlawr v. Heiman, 369 U.S. 463, 466
(1962), that it was not—at least with respect to a § 1406(a) transfer. The
Court reasoned that the § 1406(a) was intended to “remov[e] whatever
obstacles may impede an expeditious and orderly adjudication of cases and
controversies on their merits,” so that plaintiffs would not be penalized by
“‘time-consuming and justice-defeating technicalities.’” Id. at 466-67
(quoting Internatio-Rotterdam, Inc. v. Thomsen, 218 F.2d 514, 517 (4th Cir.
1955)). Accordingly, the Court held that Congress had made “[t]he language
of [§ ]1406(a) . . . amply broad enough to authorize the transfer of cases,
however wrong the plaintiff may have been in filing his case as to venue,
whether the court in which it was filed had personal jurisdiction over the
defendants or not.” Id. at 466.
Despite the Court’s best efforts, Goldlawr raised more questions than
it answered, and an at-least-three-way circuit split arose over whether
§ 1404(a) or § 1406(a) applied to a transfer conducted without personal
jurisdiction where venue was otherwise proper, as well as which choice-of-
law rule courts should use following such a transfer—the transferor court’s
or the transferee court’s. See Ellis, 646 F.2d at 1104-09 (collecting cases). It

filed case by strategically transferring it to a venue in a state where the plaintiff’s claim
would fail. Accordingly, the Supreme Court has held that courts must apply the transferor
court’s choice-of-law rule following a § 1404(a) transfer. Van Dusen v. Barrack, 376 U.S.
612 (1964); Ferens v. John Deere Co., 494 U.S. 516 (1990). Conversely, if the same standard
were applied to § 1406(a) transfers that occur after suits are filed in improper venues, a
plaintiff could forum-shop to find the most favorable law for a claim without regard to
venue, secure in the knowledge that the law would follow the case when it is transferred to
the venue where the claim should have been brought in the first place. Courts have thus
held that the choice-of-law rule of the transferee court applies following a § 1406(a) transfer.
See Ellis, 646 F.2d at 1109-10; Butler, supra, at 803 n.73 (collecting cases).

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was against this backdrop that, only a year after our court described the state
of no-personal-jurisdiction federal transfer law as a “nearly hopeless muddle
of conflicting reasoning and precedent,” id. at 1106, Congress enacted § 1631
as part of the Federal Courts Improvement Act of 1982, Pub. L. 97-164
§ 301(a), 96 Stat 25 (1982). The law appears to be intended to avoid the
confusion that was created by §§ 1404(a) and 1406(a)’s focus on whether
venue was proper, instead stating that a district court shall transfer the case
if there is a lack of jurisdiction and justice so demands regardless of the
propriety of the original venue. And the statute seems to be aimed in part at
resolving the choice-of-law question that was dividing courts in transferred
cases where personal jurisdiction was initially lacking, specifically providing
that, following such a transfer, “the action . . . shall proceed as if it had been
filed in . . . the court to which it is transferred.” Id. Thus, the context of its
enactment suggests § 1631 was intended to embrace transfers performed in
the absence of not just subject matter jurisdiction, but personal jurisdiction
as well.
The decisions of our sister circuits further confirm that the term
“jurisdiction” in § 1631 encompasses both personal and subject-matter
jurisdiction: The First and Sixth Circuits so held after squarely confronting
the question. See Fed. Home Loan Bank of Bos. v. Moody’s Corp., 821 F.3d 102,
114 (1st Cir. 2016), abrogated on other grounds by Lightfoot v. Cendant Mortg.
Corp., 137 S. Ct. 553 (2017); Roman v. Ashcroft, 340 F.3d 314, 328 (6th Cir.
2003). The Ninth, Tenth, and Eleventh Circuits have implicitly reached the
same conclusion by either applying § 1631 to a transfer to cure a defect in
personal jurisdiction, directing a district court to consider utilizing the
provision to rectify a lack of personal jurisdiction, or approving such a
transfer after it occurred. See Gray & Co. v. Firstenberg Mach. Co., 913 F.2d
758, 761-62 (9th Cir. 1990) (vacating and remanding to district court to
consider transfer under § 1631 to cure lack of personal jurisdiction); Ross v.

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Colorado Outward Bound Sch., Inc., 822 F.2d 1524, 1527-28 (10th Cir. 1987)
(reviewing case that was transferred under § 1631 to Colorado district court
after New York district court found it lacked personal jurisdiction). And the
Third and Eight Circuits have stated in dicta that a § 1631 transfer would be
proper to cure a lack of personal jurisdiction. Johnson v. Woodcock, 444 F.3d
953, 954 n.2 (8th Cir. 2006) (explaining district court could have transferred
action under § 1631 to cure lack of personal jurisdiction); Island Insteel Sys.,
Inc. v. Waters, 296 F.3d 200, 218 n.9 (3d Cir. 2002) (explaining district court
would have had authority to transfer action under § 1631 after finding it
lacked personal jurisdiction). In fact, though a noted treatise cites the
statute’s legislative history in counseling for limiting § 1631 to subject-matter
jurisdiction and further states that courts “are rather evenly divided on the
subject,” see Wright & Miller, Relation to Other Transfer Provisions, 15 Fed.
Prac. & Proc. Juris. § 3842 (4th ed.), our research indicates that only some
district courts—and no circuit courts—have actually adopted the view that
§ 1631 does not apply to a transfer to cure a lack of personal jurisdiction. See,
e.g., McTyre v. Broward Gen. Med. Ctr., 749 F. Supp. 102, 105 (D.N.J. 1990);
Levy v. Pyramid Co. of Ithaca, 687 F. Supp. 48, 51 (N.D.N.Y. 1988); Nose v.
Rementer, 610 F. Supp. 191, 192 n.1 (D. Del. 1985); c.f. Piazza v. Upjohn Co.,
570 F. Supp. 5, 8 (M.D. La. 1983) (concluding that § 1631 applied to a transfer
when a state court case was removed to the wrong district court because
“nothing in the language of the statute, its legislative history or the cases
cited . . . indicate[s] that the Congress intended such a restrictive
construction of remedial legislation”).

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Thus, it appears no circuit split currently exists on this issue, 5 and
while we cannot predict how those circuits who have left the question open
will ultimately resolve the matter, we decline to now create a split by adopting
an overly restrictive reading of § 1631. Because no amount of legislative
history can defeat unambiguous statutory text, Bostock v. Clayton County, 140
S. Ct. 1731, 1750 (2020), we join the weight of circuit authority and conclude
that the use of the term “jurisdiction” in § 1631 encompasses both subject-
matter and personal jurisdiction. The statute therefore requires a transfer
when a district court lacks either type of jurisdiction and the other statutory
prerequisites are met.
2.
Because § 1631 required the Texas district court to transfer this case
to the Louisiana district court for lack of personal jurisdiction, we next must
determine whether the Texas district court in fact did so. In transferring the
case to the Louisiana district court, the Texas district court explained:
“Because the Court lacks personal jurisdiction over Mabe, and hence venue
under § 1391(b)(1) is improper, the Court finds it suitable in the ‘interests of
justice’ to transfer the case to the Western District of Louisiana, the district
where the accident occurred.” The court cited only 28 U.S.C. § 1406(a) in
support of this order. In its initial order denying Mabe’s motion for summary
judgment and concluding that Franco’s claim was timely, the Louisiana
district court stated that “[w]hile [the magistrate judge] did not mention
Section 1631 when he transferred the proceeding to this Court, he did find a

5
The Fourth and Seventh Circuits have noted but declined to decide the issue, In
re Carefirst of Md., Inc., 305 F.3d 253, 257 n.2 (4th Cir. 2002); Carpenter-Lenski v. Ramsey,
2000 WL 287651, at *2 (7th Cir. Mar. 14, 2000); and the Second Circuit has stated in
dictum that “the legislative history of section 1631 provides some reason to believe that this
section authorizes transfers only to cure lack of subject matter jurisdiction.” SongByrd, Inc.
v. Estate of Grossman, 206 F.3d 172, 179 n.9 (2d Cir. 2000).

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want of personal jurisdiction and that the interests of justice warranted the
transfer.” The court concluded, therefore, that the magistrate judge in the
Texas district court “ordered a Section 1631 transfer in all but name.”
We have previously approved of a district court’s use of § 1406(a) to
transfer a case when it lacks personal jurisdiction over a defendant. See
Herman v. Cataphora, Inc., 730 F.3d 460, 466 (5th Cir. 2013) (“Where a court
finds it lacks personal jurisdiction, it . . . is authorized under 28 U.S.C.
§ 1406(a) to transfer the action.”). The question, then, is whether this
holding means that § 1631 does not apply to such a transfer, at least when it is
not specifically invoked by the transferor court. Ultimately, we agree with
the Louisiana district court that § 1631’s provisions apply to the transferred
case because the statute establishes a mandatory duty when it is triggered that
is not “contradictory or mutually exclusive” of the duty triggered by
§ 1406(a). Harutyunyan v. Love, No. CV 19-41, 2019 WL 5551901, at *6 (E.D.
La. Oct. 28, 2019).
That § 1631 and § 1406(a) can function together rather than as
alternative avenues for transfer is apparent from the plain text of the two
statutes. Both § 1631 and § 1406(a) use the mandatory “shall . . . transfer”
language, indicating that they both establish a mandatory duty for a court to
transfer a case when their respective requirements are met. Compare 28
U.S.C. § 1406(a) (“The district court of a district in which is filed a case
laying venue in the wrong division or district shall . . . if it be in the interest of
justice, transfer such case to any district or division in which it could have
been brought.” (emphasis added)), with 28 U.S.C. § 1631 (“Whenever . . .
there is a want of jurisdiction, the court shall, if it is in the interest of justice,
transfer such action or appeal to any other such court . . . in which the action
or appeal could have been brought[.]” (emphasis added)). When, as in this
case, there is both a lack of jurisdiction and a lack of proper venue and the
interests of justice weigh in favor of transfer rather than dismissal, the plain

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language of the statutes indicate that a district court can—indeed, must—
satisfy its obligations under both statutes through a single use of the transfer
power. It is not an either/or question. In fact, were § 1406(a) and § 1631
mutually exclusive options, where a court could use only one or the other to
perform a transfer, it would be impossible for a court to comply with both
statutes in a case like the present one where the triggering conditions for both
statutes are present. Because both statutes are mandatory when their
respective preconditions are met, a court would necessarily violate one
statute or the other if it could only perform a “§ 1406(a) transfer” or a
“§ 1631 transfer” but not both. Further, because § 1631’s requirement about
what choice-of-law rule to apply after the transfer is entirely consistent with
our court’s interpretation of § 1406(a), see Ellis, 646 F.2d at 1109-10, there is
no risk that courts will ever be subject to conflicting obligations from both
statutory mandates’ applying in the same case. Both statutes instruct the
court to do the same thing, so there is no reason to choose between the two.
A transfer conducted in these circumstances is not solely a § 1406(a) transfer
or a § 1631 transfer. It is both. See Harutyunyan, 2019 WL 5551901, at *3-6.
In light of § 1631’s mandatory language, our sister circuits have
applied the statute to transfers even when the parties did not move under
§ 1631 and where, as here, the transferring court did not mention § 1631 in its
transfer orders. See, e.g., Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir.
1990) (“Although Miller did not move the district court to transfer the case,
we have held that a motion to transfer is unnecessary because of the
mandatory cast of section 1631’s instructions.” (internal quotation marks,
citations, and alteration omitted)); Ross, 822 F.2d at 1527 (10th Cir. 1987)
(stating that, where district court lacked personal jurisdiction over the
defendant, “[t]he correct course. . . was to transfer the action pursuant to
[§ 1631]”); see also Harutyunyan, 2019 WL 5551901, at *3-6 (analyzing
transfer under § 1631, though district court cited only § 1406, because of

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§ 1631’s compulsory language and because “[i]t [was] clear the [transferring
c]ourt considered the interests of justice”). Here, the Eastern District of
Texas concluded that it lacked jurisdiction over Mabe and that the transfer
was in the interests of justice. Therefore, the provisions of § 1631 apply
irrespective of the Texas district court’s invoking only § 1406(a).
B.
Finally, we evaluate whether the Louisiana district court, in its second
ruling, properly granted summary judgment to Mabe on the basis that
Franco’s claim was prescribed. The answer to this question turns entirely on
the interplay between 28 U.S.C. § 1631 and Louisiana’s prescription
provisions.
Under Louisiana law, delictual actions prescribe one year “from the
day injury or damage is sustained.” LA. CIV. CODE art. 3492. Prescription
is interrupted when the plaintiff “commences action . . . in a court of
competent jurisdiction and venue.” Id. art. 3462. A plaintiff who files in an
incompetent court or in an improper venue, however, receives the benefit of
interruption only where he or she serves the defendant within the
prescriptive period. Id.
However, after § 1631 requires a court to “transfer [an] action . . . to
[a] court . . . in which the action . . . could have been brought at the time it
was filed or noticed[,]” the statute states that “the action . . . shall proceed
as if it had been filed in . . . the court to which it is transferred on the date
upon which it was actually filed in . . . the court from which it is transferred.”
28 U.S.C. § 1631 (emphasis added). Section 1631, then, specifies that, after
a § 1631 transfer, the suit is treated “as if” it had been commenced in the
receiving court and not the transferor court on the day it was originally filed in
the transferor court. Thus, if § 1631 applies, Franco’s claim must be treated
as if it was filed in the Louisiana federal district court for the Western

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District—a court of competent jurisdiction—on the day he filed the claim in
the Texas district court. Because that day was within the one-year
prescription period provided by Louisiana Civil Code Article 3492,
prescription will have been interrupted under Louisiana Civil Code Article
3462, rendering Franco’s claim timely.
Mabe argues on appeal that § 1631 is in direct conflict with Louisiana
Civil Code Article 3462 and that Article 3462 must prevail under the Erie
doctrine because it is a substantive Louisiana law. We do not agree that Erie
requires that result. As the Supreme Court has observed, applying Erie “is
sometimes a challenging endeavor.” Gasperini v. Ctr. for Humanities, Inc.,
518 U.S. 415, 416 (1996). But we need not wade deeply into the murky Erie
waters to determine that the doctrine of that case does not interfere with a
straightforward application of § 1631 and the Louisiana Civil Code articles.
First, the statute on which the Erie decision was in-part based, the
Rules of Decision Act, provides that “[t]he laws of the several states, except
where the Constitution or treaties of the United States or Acts of Congress otherwise
require or provide, shall be regarded as rules of decision in civil actions in the
courts of the United States, in cases where they apply.” 28 U.S.C. § 1652
(emphasis added). Interpreting this statute, the Court in Erie declared that
“[t]here is no federal general common law.” 304 U.S. at 78 (emphasis
added). Thus, the Erie analysis is confined to the kind of judge-made federal
practices that might arguably be characterized as common law—practices
that have no source in a federal rule or statute. See Hanna, 380 U.S. at 469-
70 (1965) (stating that the respondent in that case was incorrect to assume
“that the rule of Erie R. Co. v. Tompkins constitute[d] the appropriate test”
because there existed an on-point federal rule that directly controlled the
matter at issue). For example, in Guaranty Trust Co. of New York v. York, 326
U.S. 99, 111–12 (1945), the Court held that Erie mandated that federal courts
apply state statutes of limitations to state-law claims heard pursuant to the

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courts’ diversity jurisdiction and not the federal courts’ own ad hoc notions
of equitable timeliness. And in Gasperini v. Center for Humanities, Inc., 518
U.S. 415, 430 (1996), the Court determined that Erie required that a federal
court hearing a claim based in New York law apply New York’s “deviates
materially” standard when determining whether a jury verdict is excessive as
opposed to the traditional federal “shocks the conscious” standard, which is
wholly judge-made and not rooted in any federal rule or statute.
The Erie doctrine is not implicated when a valid federal rule or statute
directly governs the matter at issue. See Hanna, 380 U.S. at 470 (“The Erie
rule has never been invoked to void a Federal Rule.”); Budinich v. Becton
Dickinson & Co., 486 U.S. 196, 198 (1988) (“Although state law generally
supplies the rules of decision in federal diversity cases, it does not control the
resolution of issues governed by federal statute.” (internal citation omitted));
see also John Hart Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693, 698
(1974). When a valid federal rule or statute is directly controlling, it must be
applied, for it preempts any contrary state law, rule, or practice under the
normal operation of the Supremacy Clause. 6 Budinich, 486 U.S. at 198.

6
Although the Erie doctrine is intended to reduce the “‘inequitable
administration’ of the law” by limiting the scenarios in which the outcome of a case will
vary based on whether the suit is heard in state or federal court, Walker, 446 U.S. at 753
(quoting Hanna, 380 U.S. at 468), this does not obviate federal courts’ obligation to apply
valid, on-point federal law. “Erie and its offspring cast no doubt on the long-recognized
power of Congress to prescribe housekeeping rules for federal courts even though some of
those rules will inevitably differ from comparable state rules.” Hanna, 380 U.S. at 473.
“When, because the plaintiff happens to be a non-resident, [a state] right is enforceable in
a federal as well as in a State court, the forms and mode of enforcing the right may at times,
naturally enough, vary because the two judicial systems are not identic.” Id. (quoting York,
326 U.S. at 108). Thus, that Franco’s claim would have been handled differently had it
been brought in an incorrect Louisiana state court rather than an incorrect federal court is
not a reason to decline to apply § 1631.

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Instead of the Erie analysis, the only questions regarding § 1631’s
applicability are the same questions present in any case involving a federal
statute: (1) whether § 1631 falls within the grant of “federal authority
contained in Article I” or another portion of the Constitution, Hanna, 380
U.S. at 471, and (2) whether “the scope of the [statute] in fact is sufficiently
broad to control the issue before the Court.” 7 Walker, 446 U.S. at 749–50.
As to the first question, Mabe does not argue that § 1631 is unconstitutional,
and for good reason. There is little doubt that § 1631 falls within Congress’s
authority to prescribe rules for the operation of federal courts. See Hanna,
380 U.S. at 472 (“[T]he constitutional provision for a federal court system
(augmented by the Necessary and Proper Clause) carries with it
congressional power to make rules governing the practice and pleading in
those courts, which in turn includes a power to regulate matters which,
though falling within the uncertain area between substance and procedure,
are rationally capable of classification as either.”); Budinich, 486 U.S. at 199
(holding “enactments ‘rationally capable of classification’ as procedural
rules are necessary and proper for carrying into execution the power to
establish federal courts vested in Congress by Article III, § 1” (quoting Hana,
380 U.S. at 472)).
As to the second question, the plain language of the statute governs
when and where Franco’s claim must be considered to have been filed. To
regard Franco’s action as filed on any date other than the day it was filed in

7
Because § 1631 is a statute enacted by Congress and not a procedural rule
promulgated by the Supreme Court pursuant to the Rules Enabling Act, 28 U.S.C. § 2072,
we need not address whether it complies with the statutory limits set by Congress in the
Rules Enabling Act. See Hana, 380 U.S. at 463-64 (considering whether a Federal Rule of
Civil Procedure exceeded the authority delegated to the Supreme Court under the Rules
Enabling Act by “abridg[ing], enlarg[ing,] or modify[ing] any substantive right” (quoting
28 U.S.C. § 2072)).

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the Texas district court would be to ignore § 1631’s directive that the date of
filing shall be fixed as “the date upon which it was actually filed in . . . the
court from which it is transferred.” And to treat Franco’s claim as if it were
filed in an incompetent court would be to write out § 1631’s mandate that
“the action or appeal shall proceed as if it had been filed in . . . the court to
which it is transferred.” To omit either § 1631’s date-of-filing, place-of-
filing, or manner of proceeding clauses from our reading of the statute would
be contrary to the fundamental rules that “‘we must construe statutes so as
to give meaning to all terms,’ and ‘we cannot accept’ a construction that
renders statutory text ‘mere surplusage.’” Halliburton, Inc. v. Admin. Review
Bd., 771 F.3d 254, 264 (5th Cir. 2014) (quoting In re McBryde, 120 F.3d 519,
525 (5th Cir.1997)).
We accordingly conclude that § 1631, which was specifically designed
to protect federal litigants from the forfeiture that could result from a statute
of limitations running after a plaintiff’s mistakenly filing an action in a court
that lacks jurisdiction when the interests of justice so demand, 8 see Hempstead
Cty. & Nevada Cty. Project v. E.P.A., 700 F.2d 459, 462-63 & n.4 (8th Cir.
1983) (citing S. Rep. No. 97-275 (1982)), neither runs afoul of the Erie

8
This is not a case in which the plaintiff’s initial filing in an incompetent court was
after the prescriptive period had already run. That was the scenario presented in Phillips v.
Illinois Cent. Gulf R.R., 874 F.2d 984, 988 (5th Cir. 1989), in which we observed “that
Congress [did not] intend[] that the defendant in every transferred case be deprived of all
statute of limitations defenses.” As we noted there, “the curative effects of § . . . 1631 were
intended to apply only in those circumstances where the action would have been timely
filed in the transferee court at the time of filing in the transferor court.” Id. Franco satisfies
this requirement because, had Franco initially filed his suit in the correct court, prescription
on his claim would have unquestionably been interrupted under Louisiana Civil Code
articles 3462 and his claim would have been indisputably timely under article 3492. Nor is
there any suggestion that Franco’s misfiling was in bad faith. The benefits of § 1631 are
available only when the transferor court determines that it is “in the interest of justice” to
transfer the case rather than dismiss it, and the transferor court’s discretion serves as a
guard against the provision being abused to unfairly prejudice a defendant.

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doctrine and the Rules of Decision Act it effectuates nor transgresses
constitutional bounds. Section 1631 is therefore the standard against which
the District Court for the Western District of Louisiana should have
measured whether the action had been timely filed in that court, and its
application must necessarily precede that of the Louisiana Civil Code
articles.
With this conclusion established, it is clear that Mabe is incorrect to
contend that a “direct conflict” exists between § 1631 and Louisiana Civil
Code Articles 3462 and 3492. Section 1631 determines when and where a
transferred suit is deemed to have been filed, and neither Article 3462 nor
Article 3492 says anything about when and where a case should be considered
filed. Instead, the Louisiana Civil Code Articles only instruct a court to look
to when and where a case was filed—the matters set by § 1631—to determine
if the case is timely. In this case, for instance, § 1631 dictates that the case
must be treated as if it were commenced in the United States District Court
for the Western District of Louisiana on November 22, 2016. Louisiana Civil
Code Article 3642 then governs whether, based upon the action being
commenced in the Western District of Louisiana on November 22, 2016,
prescription was interrupted. Because the Western District of Louisiana is
“a court of competent jurisdiction and venue” for this case, Louisiana Civil
Code Article 3462 provides that prescription was interrupted on that date.
Lastly, Louisiana Civil Code Article 3492 controls whether this interruption
of prescription—on November 22, 2016—fell within the prescriptive period
for the type of action Franco asserts. Because November 22, 2016, the date
Franco is deemed to have filed under § 1631 and the date prescription was
interrupted under Article 3462, is less than a year after November 24, 2015,
the date Franco allegedly suffered the injury that is the basis of the action,
Article 3492 provides that Franco’s claim is timely. By force of the
Supremacy Clause, federal courts are bound to see that an action transferred

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under § 1631 shall proceed as if it had been filed according to the terms of that
section, and nothing prevents a court from then giving full force to the
Louisiana Civil Code Articles to determine whether the case is timely. 9
In sum, § 1631 is an on-point federal statute that does not conflict with
the Louisiana Civil Code Articles and that would preempt any contrary
Louisiana law, rule, or practice under the Supremacy Clause, and the Erie
doctrine provides no reason to avoid the statute’s application. 10 That statute

9
Indeed, the Western District of Louisiana concluded that § 1631 and Louisiana
Civil Code Articles 3462 and 3492 do not conflict in its second ruling when it determined
that Franco’s claim is time-barred. Citing Walker v. Armco Steel Corp., 446 U.S. 740, 753
(1978), the court stated that no conflict exists between § 1631 and the Louisiana Civil Code
articles. However, the district court then proceeded to completely disregard part of § 1631,
failing to treat the case as if it were originally filed in the Western District of Louisiana when
applying the Louisiana Civil Code articles. By doing so, the district court misapprehended
the central lesson of Walker: when no conflict exists between the identified state law and a
federal rule or statute, there is no reason not to apply both the federal and state laws in
diversity cases. Id. at 747 (“[I]n the absence of a[n identified] conflicting state procedure,
the Federal Rule would plainly control . . . .” (citing Hanna, 380 U.S. at 465)); Id. at 753
(stating “[t]here is simply no reason why, in the absence of a controlling federal rule,” the
state rule should not be applied); see also id. at 752 (stating that the federal and state laws
“can exist side by side, therefore, each controlling its own intended sphere of coverage
without conflict.”).
10
Our conclusion that § 1631 must set the applicable date and place of filing is
confirmed by the decisions of other courts faced with the same question. The Tenth
Circuit addressed this issue in examining the interaction between § 1631 and Colorado’s
statute of limitations, explaining that under § 1631, the transferee court “must accept the
date on which th[e] action was [brought in a court that lacked personal jurisdiction] . . . as
the filing date in the [transferee] court.” See Ross, 822 F.2d at 1526-28 (emphasis added).
And the Eastern District of Louisiana came to the same conclusion when recently
considering precisely the laws at issue here. In a very similar case to the one at bar, the
defendants argued just as Mabe does now, that the “Plaintiffs’ claim [wa]s prescribed
under Louisiana law because Plaintiffs neither filed suit in a court of proper venue nor
served a defendant before Louisiana’s one-year prescriptive period ran.” Harutyunyan,
2019 WL 5551901, at *1, *3. The court disagreed, reasoning that Ҥ 1631 is a controlling
and constitutionally enacted federal statute that governs the Court’s determination of
when and where Plaintiffs are considered to have filed suit in this case.” Id. at 7. The court

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therefore can and must govern our determination of when and where Franco
is considered to have filed this action. See Budinich, 486 U.S. at 198 (stating
“state law . . . does not control the resolution of issues governed by federal
statute.” (internal citation omitted)). Applying § 1631 to the case at bar, we
accept that, as far as we are concerned, Franco is deemed to have filed his
suit in the Western District of Louisiana on November 22, 2016, the date he
actually filed suit in the Eastern District of Texas. See 28 U.S.C. § 1631.
Thus, for our purposes, Franco must be deemed to have filed his claim “in a
court of competent jurisdiction and venue” on that date and thereby
interrupted the one-year prescriptive period under Louisiana law, see LA.
CIV. CODE arts. 3492, 3462, rendering his claim timely. The Louisiana
district court therefore erred by granting Mabe summary judgment on the
basis that Franco’s claim had prescribed.
***
For the foregoing reasons, the judgment of the district court is
REVERSED and this case is REMANDED for further proceedings.

explained that “[u]nder § 1631, a transferred case proceeds as if it had been filed in the
transferee court from the outset,” and therefore the plaintiffs’ claims were not prescribed.
Id.

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EDITH H. JONES, Circuit Judge, dissenting:
Although I concur in Parts I and IIA of the panel opinion, I must
respectfully dissent from Part IIB. The majority concludes there that
28 U.S.C. § 1631 respects one half of La. Civ. Code Art. 3462 but ignores the
other half, thus depriving state prescription law of its complete meaning. I
do not believe that Congress, in enacting Section 1631 to provide a remedy
for cases accidentally filed in federal courts lacking jurisdiction, also intended
to supersede state statutes of limitations. I would affirm the district court’s
dismissal of this case as prescribed.
Plaintiff Franco filed suit against the trucking company in Texas
within one year following his accident. However, Texas courts had no
jurisdiction over the defendant, and the federal court was faced with
dismissing or transferring the suit to Louisiana, a court of proper personal
jurisdiction. The court opted to transfer, with what I agree was de facto an
order pursuant to Section 1631. Section 1631 provides that a federal court in
this circumstance may, in the interest of justice,
“transfer such action… to any other such court…in which the
action…could have been brought,…and the action… shall
proceed as if it had been filed in…the court to which it is
transferred on the date upon which it was actually filed in…the
court from which it was transferred”
(emphasis added). In plain terms, this provision construes the date of filing
in the transferee court as the date on which the case commenced in the
transferor court. See, e.g., Phillips v. Ill. Cent. Gulf R.R., 874 F.2d 984, 987-
88 (5th Cir. 1989) (holding that diversity case transferred from Texas to
Louisiana was prescribed despite Section 1631’s adoption of the transferor
court’s filing date); Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524
(10th Cir. 1987) (case not barred by limitations after Section 1631 transfer).
But the federal provision does no more.

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The majority opinion holds that Section 1631, which has rarely been
construed in the context of a statute like Art. 3462, 1 by its terms controls not
only the date and place of filing but also the “manner of proceeding” with
the case. The “manner of proceeding,” evidently, then superseded state
limitations law in this diversity case. I disagree. The statute’s language that
the action “shall proceed” as if it had been filed in the transferee court on
the date of filing in the transferor court incorporates only that date, not
consequences that might follow from that date under state law.
Accordingly, whether the original filing date is within the statute of
limitations becomes a matter for the transferee court to decide, and that issue
depends in a diversity case on the law of the forum state. The Supreme Court
has held that where service of summons was integrally bound with a state
court’s statute of limitations, the principles underlying Erie require federal
courts to apply local law. As the Court explained, “[w]e can draw no
distinction in this case because local law brought the case to an end after,
rather than before, suit was started in the federal court….We cannot give it
longer life in the federal court than it would have had in the state court
without adding something to the cause of action.” Ragan v. Merchants Transf.
& Warehouse Co., 337 U.S. 530, 533-34, 69 S. Ct. 1233, 1235 (1949).
Ragan is on point with this case. As I noted above, the majority relies
on half of the applicable statute, La. Civ. Code Art. 3462, which states that
the one-year prescription period is “interrupted…when the obligee
commences action against the obligor in a court of competent jurisdiction and
venue.” But the rest of the provision states, “[i]f action is commenced in an

1
The majority cites one opinion from a district court in Louisiana. One other such
case is Manieri v. Layirrison, 1998 WL 458186 (E.D. La. 1998) (holding suit prescribed
under Art. 3462 after transfer from court of improper venue under 28 U.S.C. §§ 1404(a)
or 1406(a)).

23
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incompetent court or in an improper venue, prescription is interrupted only
as to a defendant served by process within the prescriptive period.” The
majority treats Section 1631 “as if” its language, which states that the action
shall proceed “as if” it had been filed in the transferee court on the filing date
in the transferor court, also settled the question of a valid interruption of
prescription under Louisiana law. But applying a retroactive filing date for
the suit does not speak to whether the suit is timely under state law. Because
Franco did not serve the defendant within the one year prescriptive period in
the “incompetent” Texas court, Louisiana Art. 3462 held it barred. In
Phillips, supra, a transfer under Section 1631 did not compel continuation of
a suit commenced outside the Louisiana one-year prescription period, but in
Ross, supra, the opposite result obtained. Section 1631 is neutral as to state
law consequences. Governing law under Erie therefore continues to require
fealty to the whole of Article 3462.
In Walker v. Armco Steel Corp., the Supreme Court held that Ragan is
still good law. 446 U.S. 740, 100 S. Ct. 1978 (1980). The Court pointed out
that in Hanna [v. Plumer, 380 U.S. 460, 85 S. Ct. 1136 (1965)] there was a
“direct collision” between federal and state procedural rules, whereas in
Ragan and Walker such a clash was avoidable, and the states’ service of
process requirements—intimately bound up in the states’ substantive
statutes of limitations—had to apply. Id. at 748-49, 100 S. Ct. at 1984-85
(“There is no indication that [Fed. R. Civ. P. 3] was intended to toll a state
statute of limitations, much less that it purported to displace state tolling
rules for purpose of state statutes of limitations.”).
Applying the reasoning of Walker to this case, I contend, contrary to
the majority, that the scope of Section 1631 is not so broad as to countermand
Louisiana law’s integrated prescription and service of process limits. La. Civ.
Code Arts. 3492, 3462. See id. at 751, 100 S. Ct. at 1985. In fact, the
arguments made by the majority here are analogous to those rejected by

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Walker in considering whether Fed. R. Civ. P. 3 (“An action is commenced
by filing a complaint with the court”) superseded Ragan or the integrated
Oklahoma statute of limitations/service of process law in a diversity case. It
would be odd if Congress, aware of Erie and Ragan, had enacted Section 1631
with an eye to obliterating certain state limitations statutes only in cases
where the plaintiff had first filed in a federal court lacking jurisdiction. Yet
the result of the majority’s holding is not only to create a split between
substantive outcomes in state and federal court in Section 1631 cases, but also
a split between results in federal courts based solely on jurisdictional errors
in the initial location of filing. 2
For these reasons, Franco’s suit had prescribed upon transfer to
Louisiana because he served summons on the defendant outside the one-year
bar. I respectfully dissent.

2
If Franco had filed his suit in a Louisiana federal court that possessed personal
jurisdiction but proceeded to serve the defendant outside the one-year prescriptive period,
Art. 3462 would bar the suit pursuant to Erie principles. Federal Rule 3 would not bail him
out. According to the majority’s opinion here, however, if the plaintiff first filed in a court
lacking personal jurisdiction and served process after the one-year prescriptive limit,
Art. 3462 plays no role, he may have a Section 1631 transfer, and his case will proceed.

25