Andrew Myers, et al v. John Doe

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Andrew Myers, et al v. John Doe

Doc. 0

Case: 09-31171

Document: 00511194526

Page: 1

Date Filed: 08/04/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 4, 2010 N o . 09-31171 S u m m a r y Calendar Lyle W. Cayce Clerk

A N D R E W MYERS; ZUELA MYERS, P la in t iffs - Appellants v. P H I L I P SERVICES CORP, D e fe n d a n t - Appellee

Appeal from the United States District Court fo r the Western District of Louisiana U S D C No. 2:06-CV- 1785

B e fo r e JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges. P E R CURIAM:* A p p e lla n t s Andrew and Zuela Myers appeal the district court's dismissal o f their personal injury tort claim against Philip Services Corporation ("PSC") a s prescribed under Louisiana law. Their action arises from a July 2, 2004, a u t o m o b ile accident involving a pipe that was left on an interstate, hit by a car, b e c a m e airborne, crashed into the window of the Myers' car, and struck M r . Myers' head, causing injury.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Dockets.Justia.com

Case: 09-31171

Document: 00511194526

Page: 2

Date Filed: 08/04/2010

No. 09-31171 O n September 14, 2004, the Myers filed suit, naming Desirae Strybos (the d r iv e r of the car), American National Insurance Company, Allstate Insurance C o m p a n y , "XYZ Corporation," and "ABC Insurance Company" as defendants. Over the next five years, the Myers amended their complaint several times to a d d additional defendants. All of the original, timely defendants were dismissed a s of January 20, 2009.1 O n August 4, 2009, the Myers filed their Third Supplemental Petition, n a m in g PSC as a defendant. This was the first time PSC had any notice of the s u it , well after Louisiana's one-year prescriptive period had expired. Accordingly, PSC moved to dismiss. The Myers conceded that their claim was b a r r e d on the face of the petition, and instead argued that prescription was in t e r r u p te d and that the petition related back to the original complaint. The d is t r ic t court granted the Appellee's motion to dismiss, holding that the Myers fa ile d to present facts sufficient to demonstrate that prescription was in t e r r u p te d and that their claim against PSC did not relate back to the original p e t it io n . The Myers appeal. I n Louisiana, personal injury torts are subject to a one-year prescription p e r io d . LA. CIV. CODE ANN. art. 3492. The Myers' delictual action against PSC w a s not filed during the one-year prescriptive period, although suit was timely file d against several other defendants. Filing suit against one alleged tortfeasor in t e r r u p ts prescription against all joint tortfeasors. LA. CIV. CODE ANN. art. 2 3 2 4 (C ). Here, the Myers allege that PSC was a joint tortfeasor with the

o r ig in a l defendants, particularly Ms. Strybos, and interruption lasts as long as t h e suit is pending.

On May 2, 2005, the court dismissed the claims against "ABC Insurance Company" and "XYZ Corporation" without prejudice for failure to prosecute or to substitute the proper defendants. American National Insurance Company was dismissed on October 12, 2006; Allstate Insurance Company was dismissed on July 16, 2007; Desirae Strybos was dismissed with prejudice on January 20, 2009.

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Case: 09-31171

Document: 00511194526

Page: 3

Date Filed: 08/04/2010

No. 09-31171 H o w e v e r , "where no liability is found on the part of a timely sued alleged t o r t fe a s o r , then prescription is not interrupted as to untimely sued tortfeasors, a s no joint or solidary obligation exists." Renfroe v. State ex rel. Dept. of Transp. a n d Development, 809 So.2d 947, 950 (La. 2002); Levingston v. City of S h r e v e p o r t, 4 So.3d 942, 946 n.1 (La. App. Ct. 2nd Cir. 2009). Because all the t im e ly defendants have been dismissed, including Desirae Strybos (who was d is m is s e d with prejudice),2 it is not possible for them to be jointly liable with P S C . For that reason, the dismissed defendants are irrelevant to the Myers' c la im against PSC, prescription against PSC is not interrupted, and the Myers' c la im is untimely. T h e Myers do not appeal the district court's determination that they did n o t present facts sufficient to demonstrate that the Amended Petition related b a c k to the original filing under FED. R. CIV. P. 15(c). As such, we do not address t h a t issue. F in a lly , the Myers assert the doctrines of contra non valentem and equity t o support their contention that prescription has not run. However, neither of t h o s e issues were raised at the district court. Matters which are not first

p r e s e n t e d to the district court are waived and should not be considered on a p p e a l. See, e.g., Miller v. Nationwise Life Ins. Co., 391 F.3d 698, 701 (5th Cir. 2 0 0 4 ) ("We have frequently said that we are a court of errors, and that a district c o u r t cannot have erred as to arguments not presented to it."). Thus, we decline t o discuss the merits of those arguments. F o r the forgoing reasons, the district court is AFFIRMED.

Although the Myers argue that it is not true that Desirae Strybos was "not found liable" because they eventually settled with her, Ms. Strybos was dismissed with prejudice and for that reason cannot be a joint obligor with PSC.

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