Sears Holding Corporation et al

Filing 15

ORDER denying 12 Motion to Reopen Case. Signed by Judge Carl Barbier on 10/26/12. (sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DEMETRIA SMITH AND CHARLENE
WILLIAMS

CIVIL ACTION

VERSUS

NO: 10-2128

KMART CORPORATION, d/b/a
KMART STORE #4801, AND SEARS
HOLDING CORPORATION

SECTION: J(5)

ORDER
Before the Court is Plaintiff, Demetria Smith, (“Smith”)’s
Motion to Reopen Case (Rec. Doc. 12) and Defendants’ Opposition
(Rec. Doc. 14) to same.

Having considered the parties’ briefing,

the record, and the applicable law, the Court finds, for reasons
discussed more fully below, that Smith’s Motion to Reopen should
be DENIED.
In her motion, Smith seeks to reopen a case previously filed
and voluntarily dismissed by Smith and her former co-worker
Charlene Williams (“Williams”), in order to pursue a malicious
prosecution claim against Kmart Corporation (“Kmart”) and Sears
Holding Corporation (“Sears”) (collectively “Defendants”).

Smith

and Williams, two former Kmart employees, were terminated and

criminally charged with theft of goods under $300 after a Kmart
loss prevention manager allegedly observed them on camera
shoplifting while at work.

Following the incident, Smith and

Williams filed suit in this Court on July 29, 2010 against Kmart
and Sears asserting claims for malicious prosecution, false
arrest, and defamation under Louisiana law.

Smith and Williams

voluntarily dismissed their claims against the Defendants on
November 17, 2010 on the grounds that their malicious prosecution
claims were not yet ripe, because the state criminal proceedings
had not yet reached an ultimate resolution in plaintiffs’ favor.
On October 6, 2011, a jury convicted Williams of the theft
charges and acquitted Smith.

On October 9, 2012, Smith filed the

instant Motion to Reopen the case to prosecute only her malicious
prosecution claim in light of her acquittal in the state criminal
proceedings.
When the Court granted plaintiffs’ motion to voluntarily
dismiss the case on November 17, 2010, that dismissal deprived
the Court of any further jurisdiction over that case and the
claims asserted therein.

After the dismissal, the proper

procedural vehicle for Smith to assert her malicious prosecution
claim following the termination of the state criminal proceedings
in her favor was a new complaint, not a motion to re-open the
previously dismissed case.

Offbeat, Inc. v. Cager, 94-2796, 1997

WL 83140 (E.D. La. Feb. 26, 1997) (citing Wright & Miller,
Federal Practice and Procedure: Civil 2d § 2367 at 319 (1995)).
Furthermore, even if the Court ignores the procedural defect
and construes Smith’s Motion to Reopen as a re-filing of her

malicious prosecution claim, that claim is time-barred.

When a

party voluntarily dismisses her case without prejudice, it is
considered as if the suit was never filed; the statute of
limitations is not tolled; and a court may not reinstate the case
if the statute of limitations has run since the dismissal.
Chiles v. Stephens, 87-1942, 1994 WL 150733, at *3 (E.D. La. Apr.
8, 1994) (citing Ford v. Sharp, 758 F.2d 1018, 1023-24 (5th Cir.
1985)).

Under Louisiana Civil Code Article 3492, Smith’s

malicious prosecution claim accrued when she was acquitted of
theft charges on October 6, 2011, giving her one year from that
date to file re-file suit and assert her claim.

Because 2012 was

a leap year, Smith had until October 5, 2012 to re-file her
claim.

See Peters v. Transocean Offshore, 00-0944, 2000 WL

1876097 (E.D. La. Dec. 22, 2000); Assaleh v. Sherwood Forest
Country Club, Inc., 2007-1939 (La. App. 1 Cir. 5/2/08); 991 So.
2d 67.

Thus, when Smith filed the instant Motion to Reopen (Rec.

Doc. 12) on October 9, 2012, her malicious prosecution claim was
prescribed.

Accordingly,

IT IS HEREBY ORDERED that Smith’s Motion to Reopen (Rec.
Doc. 12) is DENIED.
New Orleans, Louisiana this 26th day of October, 2012.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE