Mary Tigert v. American Airlines, Inc., et al

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 10, 2010 N o . 10-30069 S u m m a r y Calendar Lyle W. Cayce Clerk

M A R Y ANN TIGERT, P la in t if f ­ A p p e lla n t v. A M E R I C A N AIRLINES INC.; DAL GLOBAL SERVICES, L.L.C., D e fe n d a n t s ­ A p p e lle e s

A p p e a l from the United States District Court for the Western District of Louisiana U S D C No. 5:09-cv-00958

B e fo r e BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges. P E R CURIAM:* M a r y Ann Tigert appeals the district court's dismissal with prejudice of h e r negligence suit against American Airlines, Inc. ("American") and DAL Global S e r v ic e s , L.L.C. ("DAL"). The district court found that Louisiana's one-year p r e s c r ip t iv e period applied to Tigert's case rather than California's two-year p r e s c r ip t iv e period, and that Tigert's claims were thus time-barred because she file d her complaint more than a year after her injury. The district court also

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 10-30069 d e n ie d Tigert's request to transfer her case to a district court in California under 2 8 U.S.C. § 1404(a). O n appeal, Tigert argues that the district court (1) failed to take into a ccou n t Louisiana's practice of "strictly construing" prescriptive statutes in favor o f allowing, rather than denying, a suit to proceed; (2) abused its discretion by d e n y in g her request for a transfer; and (3) abused its discretion by entering its d is m is s a l with prejudice rather than without. Because (1) the district court c o r r e c t ly applied Louisiana's choice of law provision to prescriptive periods, (2) a transfer would not affect the timeliness of her claim, and (3) the res judicata e ffe c t of the district court's dismissal does not turn on whether it was with or w it h o u t prejudice, we affirm the district court's dismissal. I. FACTUAL AND PROCEDURAL BACKGROUND O n July 11, 2007, Tigert arrived at the Oakland, California airport for a r e t u r n flight with American Airlines to Shreveport, Louisiana, after visiting her s o n . Due to her disability, American provided Tigert with a wheelchair upon her a r r iv a l. An individual named "Bonita" pushed Tigert's wheelchair to the

a ir p o r t 's security checkpoint. A t the checkpoint, security officials conducted a further examination of T ig e r t 's "C-Pap Machine." Security personnel took the C-Pap Machine to a n e a r b y table, and Bonita instructed Tigert to walk toward it. As she did, Bonita g a t h e r e d Tigert's carry-on bag and placed it on the floor behind Tigert. After security personnel informed Tigert that she could return to her seat, T ig e r t turned and tripped over her carry-on bag, injuring her right knee. Tigert b o a r d e d the plane to Shreveport, and upon arrival, her knee injury had m a n ife s t e d to a degree requiring medical attention. In August 2007, Tigert r e c e iv e d injections to help alleviate the injury, and later that month, underwent a r t h r o s c o p ic surgery.

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No. 10-30069 O n June 11, 2009, Tigert filed a negligence suit in the district court for the W e s t e r n District of Louisiana against American and DAL for their collective fa ilu r e "to protect her by properly controlling, guarding, watching, and p r o t e c t in g her safety during the transportation of her through airport facilities." American and DAL filed a motion to dismiss under Federal Rule of Civil P r o c e d u r e 12(b)(6), arguing that Louisiana's one-year prescriptive period for d e lic t u a l actions time-barred her suit. The district court agreed, and dismissed T ig e r t 's suit with prejudice, despite her request for a transfer to an appropriate d is t r ic t court in California. Tigert timely appealed. I I . STANDARD OF REVIEW W e review de novo the district court's dismissal of Tigert's action as timeb a r r e d under Rule 12(b)(6). Brown v. Slenker, 220 F.3d 411, 419 (5th Cir. 2000) (c it in g Radford v. Gen. Dynamics Corp., 151 F.3d 396, 398 (5th Cir. 1998)). We a c c e p t as true all well-pleaded facts and view them in the light most favorable t o Tigert. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (c it a t io n omitted). "To survive a Rule 12(b)(6) motion to dismiss, [Tigert] must p le a d `enough facts to state a claim to relief that is plausible on its face.'" Id. (q u o tin g Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We review the district court's decision whether to transfer a case pursuant t o § 1404(a) for abuse of discretion. Save Power Ltd. v. Syntek Finance Corp., 1 2 1 F.3d 947, 950 n.3 (5th Cir. 1997). Likewise, we review "the district court's d e c is io n to grant a motion to dismiss with or without prejudice only for abuse of d is c r e t io n ." Club Retro, LLC v. Hilton, 568 F.3d 181, 215 n.34 (5th Cir. 2009) (c it in g Schiller v. Physicians Res. Group Inc., 342 F.3d 563, 567 (5th Cir. 2003)). I I I . ANALYSIS O n appeal, Tigert advances three arguments. First, she contends that the d is t r ic t court should have applied California's two-year prescriptive period r a t h e r than Louisiana's one-year prescriptive period. Next, she argues that, in 3

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No. 10-30069 lie u of dismissing her suit with prejudice, the district court should have t r a n s ferre d her case to an appropriate federal court in California. Finally, Tigert a s s e r t s that the district court should have dismissed her suit without prejudice, w h ic h would have allowed her to pursue her action in California and escape L o u is ia n a 's time bar. We address each argument in turn. A. L o u i s i a n a 's One-Year Prescriptive Period T ig e r t contends that the district court misapplied Louisiana's conflict of la w and prescription principles when it held that her suit was time-barred. Specifically, Tigert argues that Louisiana has a policy of "strictly interpreting" p r e s c r ip t iv e periods in favor of maintaining, rather than dismissing, an action w h e r e two permissible views involving prescription are available. Tigert also a r g u e s that even if Louisiana's choice of law provision mandates that Louisiana's p r e s c r ip tiv e period applies, she has demonstrated that "compelling

c o n s id e r a t io n s of remedial justice" favor applying California's prescriptive p e r io d . LA. CIV. CODE ANN. art. 3549(B). Louisiana law states that "delictual actions are subject to a liberative p r e s c r ip t io n of one year," which "commences to run from the day injury or d a m a g e s is sustained." Id. art. 3492. California law, on the other hand,

p r o v id e s a two year statute of limitations for any "action for assault, battery, or in ju r y to, or for the death of, an individual caused by the wrongful act or neglect o f another." CAL. CIV. PROC. § 335.1. Because Tigert filed this diversity suit in L o u is ia n a , we are bound to follow Louisiana's choice of law rules. See

M a r c h e s a n i v. Pellerin-Milnor Corp., 269 F.3d 481, 486 (5th Cir. 2001) (citation o m itte d ). Louisiana's choice of law provision provides that "[w]hen the

s u b s t a n t iv e law of another state would be applicable to the merits of an action b r o u g h t in this state, the prescription and peremption law of this state applies." LA. CIV. CODE ANN. art. 3549(B).

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No. 10-30069 A r t ic le 3549(B), however, incorporates a relevant exception: if Louisiana la w prescribes a cause of action, but the law of the state whose law applies to the s u b s t a n t iv e conduct would find the action timely, the suit may be maintained as t im e ly in a Louisiana court if maintenance in Louisiana is "warranted by c o m p e llin g considerations of remedial justice." "There is no question that the a u t h o r s of the `compelling considerations of remedial justice' exception intended it to be used in only the most extraordinary of circumstances." Brown, 220 F.3d a t 420 (citation omitted). Comment f to article 3549 describes examples of " c o m p e llin g considerations" as those w h e r e through no fault of the plaintiff an alternative forum is not a v a ila b le as, for example, where jurisdiction could not be obtained o v e r the defendant in any state other than the forum or where for s o m e reason a judgment obtained in the other state having ju r is d ic t io n would be unenforceable in other states, [and] . . . also s it u a t io n s where suit in this alternative forum, although not im p o s s ib le would be extremely inconvenient for the parties. (citation and internal quotation marks omitted). "In cases where plaintiffs have lit ig a t e d their claims in Louisiana by choice, not by necessity, claims of `c o m p e llin g considerations' warranting maintenance of the suit in Louisiana h a v e been consistently rejected." Brown, 220 F.3d at 420; see id. (noting that " [o ]n ly one case has found compelling considerations of remedial justice," and in t h a t case, "Louisiana was the only forum in which suit could be maintained, b e c a u s e it was the only forum in which jurisdiction could be obtained over all the d e fe n d a n t s " ) (citing Smith v. Odeco (UK) Inc., 615 So. 2d 407, 409 (La. Ct. App. 1 9 9 3 )). Here, Tigert has not demonstrated "compelling considerations of remedial ju s tic e " that would be served by maintenance of her action in Louisiana. See LA. C IV. CODE ANN. art. 3549. California provides the locus of the alleged injury c a u s in g conduct and the place of the injury, and Tigert has not alleged that her d e c is io n to litigate her negligence claim in Louisiana was based on necessity 5

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No. 10-30069 r a t h e r than choice. See Brown, 220 F.3d at 420. Simply put, Tigert has not a l l e g e d any inconvenience that rises to the extraordinary level necessary to t r ig g e r article 3549's "compelling considerations of remedial justice" exception t o its prescriptive period choice of law provision. Tigert's argument that Louisiana strictly construes prescriptive statutes in favor of maintaining, rather than dismissing, an action, lacks merit. The d is t r ic t court did not interpret Louisiana's prescriptive statute, LA. CIV. CODE A NN. art 3492; rather, it interpreted Louisiana's choice of law provision, which m a n d a t e s that Louisiana's prescriptive period applies to all cases filed in L o u is ia n a courts, irrespective of the underlying substantive law. See id. art. 3 5 4 9 . The cases Tigert cites for her argument do not consider whether Louisiana c o u r ts should apply another state's prescriptive period; instead, they address in s t a n c e s in which a person cannot bring a suit for a period of time;1 a plaintiff's c o m p la in t identifies two causes of action, each susceptible to a different p r e s c r ip t iv e period;2 or a question arises as to interruption or suspension of a p r e s c r ip t iv e period.3 Finally, Tigert's contention that her inconvenience, when c o u p le d with Louisiana's strict construction principles, rises to the level of a c o m p e llin g consideration of remedial justice, entirely lacks support in Louisiana c a s e la w .

Carter v. Haygood, 892 So. 2d 1261, 1268 (La. 2002) ("To soften the occasional harshness of prescriptive statutes, our courts have recognized a jurisprudential exception to prescription: contra non valentem non currit praescriptio, which means that prescription does not run against a person who could not bring his suit."). United Carbon Co. v. Miss. River Fuel Corp., 89 So. 2d 209, 211­12 (La. 1956) (holding that a claim was for enforcement of a contract rather than on an open account). Foster v. Breaux, 270 So. 2d 526, 529­30 (La. 1972) (holding that a filing was timely because the plaintiff filed in a court of competent jurisdiction and the defendant had waived an objection to improper venue, which interrupted the prescriptive period); Mansur v. Abraham, 164 So. 421, 425 (La. 1935) (holding that plaintiff timely filed because prescription does not run where the last day falls on a Sunday or a legal holiday).
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No. 10-30069 T h e district court correctly determined that Louisiana's one-year p r e s c r ip t iv e period applied to Tigert's suit. Because Tigert's injury accrued on J u ly 11, 2007, her filing on June 11, 2009 was time-barred. We thus hold that t h e district court correctly dismissed Tigert's suit as untimely. B. T r a n s f e r under 28 U.S.C. § 1404(a) I n the alternative, Tigert argues that the district court should have t r a n s fe r r e d her case to a district court in California. In support, she cites S e a g r a v e v. Delta Airlines, Inc., in which a district court, after finding that L o u is ia n a 's prescriptive period barred the plaintiff's claim in Louisiana, t r a n s fe r r e d the case to a federal court in Virginia, which had a prescriptive p e r io d that had not yet expired. 848 F. Supp. 82, 85­86 (E.D. La. 1994). The S e a g r a v e court found that a dismissal was not "in the interests of justice, as it m ig h t create prescription problems for the plaintiff in Virginia, and it is plain t h a t the suit could have been filed in Virginia." Id. at 86. Although the

S e a g r a v e court "recognize[d] that Louisiana Civil Code article 3549 contemplates t h e dismissal of the action," it concluded that "a transfer comports with both the d ir e c t iv e of article 3549 and the interests of justice," especially considering " L o u is ia n a 's strong policy of providing remedies to tortiously injured plaintiffs a n d deterring wrongful conduct (codified in [LA. CIV. CODE ANN.] art. 3542) and t h e practical solution offered by 42 U.S.C. § 1404(a)." Id. Although factually analogous to Tigert's case, here, the district court c o r r e c tly noted that the Seagrave court failed to consider the effect of the S u p r e m e Court's decisions in Ferens v. John Deere Co., 494 U.S. 516, 523 (1990), a n d Piper Aircraft Co. v. Reyno, 454 U.S. 235, 244 n.8 (1981). Ferens held that a transferee forum must "apply the law of the transferor court, regardless of who in it ia te s the transfer. A transfer under § 1404(a), in other words, does not c h a n g e the law applicable to a diversity case." 494 U.S. at 523. Likewise, in P ip e r Aircraft, the Supreme Court stated that although "a court ordinarily must 7

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No. 10-30069 a p p ly the choice-of-law rules of the State in which it sits[,] . . . where a case is t r a n s fe r r e d pursuant to 28 U.S.C. § 1404(a), it must apply the choice-of-law rules o f the State from which the case was transferred." 454 U.S. at 244 n.8 (citing V a n Dusen v. Barrack, 376 U.S. 612 (1946)). I n other words, were the district court to have transferred Tigert's cause o f action to a district court in California, under Piper Aircraft and Ferens, a C a lifo r n ia district court would be bound to apply Louisiana's article 3549, find t h a t Louisiana's one year prescriptive period applies, and conclude that Tigert fa ile d to demonstrate any compelling considerations of remedial justice w a r r a n tin g application of California's longer prescriptive period. Because

L o u is ia n a 's one-year prescriptive period would follow Tigert to California, we a g r e e with the district court that transferring would do little more than i n c o n v e n ie n c e the parties. We thus decline to adopt the approach used in S e a g r a v e , a non-precedential district court decision, and instead affirm the d is t r ic t court's decision not to transfer Tigert's case to a district court in C a lifo r n ia . C. D is m i s s a l With Prejudice F in a lly , Tigert argues that the district court abused its discretion by e n te r in g a dismissal with prejudice rather than a dismissal without prejudice. She claims that the district court noted the possibility that she could re-file her n e g lig e n c e suit in California, but contends that it closed off her opportunity to d o so by entering a dismissal with prejudice. She asserts that dismissals for fa ilu r e to state a claim are final, and would thus be res judicata on another a c tio n . T h e Supreme Court, however, has explained that a dismissal with p r e ju d ic e does not necessarily bar a plaintiff from filing again in another ju r is d ic t io n . See Semtek Int'l v. Lockheed Martin Corp. ("Semtek"), 531 U.S. 497, 5 0 6 (2001) ("[U]nlike a dismissal `without prejudice,' the dismissal in the present 8

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No. 10-30069 c a s e barred refiling of the same claim in the United States District Court for the C e n t r a l District of California. That is undoubtedly a necessary condition, but it is not a sufficient one, for claim-preclusive effect in other courts."). Traditionally, "expiration of the applicable statute of limitations merely bars the r e m e d y and does not extinguish the substantive right, so that dismissal on that g r o u n d does not have claim-preclusive effect in other jurisdictions with longer, u n e x p ir e d limitations periods." Id. at 504 (citing RESTATEMENT (SECOND) OF C ONFLICT OF LAWS §§ 142(2), 143 (1969); RESTATEMENT OF JUDGMENTS § 49, cmt. a (1942)). The Semtek Court concluded that "federal common law governs the c la im -p r e c lu s iv e effect of a dismissal by a federal court sitting in diversity," and a d o p t e d , "as the federally prescribed rule of decision, the law that would be a p p lie d by state courts in the State in which the federal diversity court sits." Id. a t 508 (citations omitted). I n other words, the district court's designation of its dismissal as with or w it h o u t prejudice is immaterial. What matters for purposes of Tigert's case is, w h e t h e r given refiling in California, a California court would find that the d is t r ic t court's dismissal on grounds of Louisiana's prescriptive period bars r e filin g in California. Cf. id. at 509 ("Because the claim-preclusive effect of the C a lifo r n ia federal court's dismissal `upon the merits' of petitioner's action on s t a t u t e -o f-lim it a t io n s grounds is governed by a federal rule that in turn in c o r p o r a t e s California's law of claim preclusion . . . , the Maryland Court of S p e c ia l Appeals erred in holding that the dismissal necessarily precluded the b r in g in g of this action in the Maryland courts."). Because that issue is not b e fo r e us, we decline to address it. We do note, however, that a dismissal of T ig e r t 's claim without prejudice would abrogate American and DAL's statute of lim it a t io n s defense to the extent that Tigert wishes to re-file and prosecute her c la im in Louisiana. See id. at 505 ("The primary meaning of `dismissal without p r e ju d ic e ,' we think, is dismissal without barring the plaintiff from returning 9

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No. 10-30069 la t e r , to the same court, with the same underlying claim. That will also

o r d i n a r ily (though not always) have the consequence of not barring the claim fr o m other courts, but its primary meaning relates to the dismissing court it s e lf." ). For these reasons, we find that the district court did not abuse its d is c r e t io n by dismissing Tigert's claim with prejudice. I V . CONCLUSION The district court correctly found that Louisiana's one year prescriptive p e r io d applied to Tigert's claim, and that because it did, Tigert's claim was timeb a r r e d . Additionally, the district court did not abuse its discretion when it d e n ie d Tigert's request to transfer her case to a district court in California. Finally, the district court did not abuse its discretion by dismissing Tigert's suit w it h prejudice. For all these reasons, we affirm the district court's dismissal of T ig e r t 's negligence suit. A F F IR M E D .

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