Ferguson v. Sevin
Filing
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ORDER GRANTING Defendant's 33 Motion for Summary Judgment. All claims brought by Plaintiff Kevin Ferguson are dismissed with prejudice. Signed by Judge Robert Pitman. (klw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
KEVIN FERGUSON,
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Plaintiff,
V.
MARIE SEVIN,
Defendant.
1-15-CV-462 RP
OPINION AND ORDER
Before the Court are Defendant’s Motion for Summary Judgment, filed December 10, 2015
(Clerk’s Dkt. #33) and the responsive pleadings thereto. After reviewing the parties' pleadings,
relevant case law, as well as the entire case file, the Court issues the following Opinion and Order.
I. BACKGROUND
On February 10, 2015 Plaintiff Kevin Ferguson (“Ferguson”) filed this action in the United
States District Court for the Southern District of Mississippi. He named as sole defendant Marie
Sevin (“Sevin”). By order dated May 29, 2015, the Mississippi court granted Plaintiff’s motion to
transfer venue, based on Sevin’s current residency in Texas, and transferred the action to this
Court.
This action arose from an automobile accident near Crescent City, Louisiana on September
3, 2013. According to Ferguson, the vehicle driven by him collided with the vehicle driven by Sevin
as a result of Sevin’s negligence. Ferguson seeks monetary damages for the injuries he suffered
in the collision.
Sevin has now moved for summary judgment on the sole basis that Ferguson’s claims are
barred by the applicable statute of limitations. The parties have filed responsive pleadings and the
motion is now ripe for determination.
II. STANDARD OF REVIEW
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure
only “if the movant shows there is no genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A dispute is genuine only if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 254,106 S. Ct. 2505, 2513 (1986).
The party moving for summary judgment bears the initial burden of “informing the district
court of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrates the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S. Ct. 2548, 2553 (1986). The burden then shifts to the nonmoving party to establish
the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 585-87,106 S. Ct. 1348, 1355-56 (1986); Wise v. E.I. Dupont de Nemours & Co., 58
F.3d 193, 195 (5th Cir. 1995). The parties may satisfy their respective burdens by tendering
depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131
(5th Cir. 1992).
The Court will view the summary judgment evidence in the light most favorable to the nonmovant. Rosado v. Deters, 5 F.3d 110, 122 (1993). The non-movant must respond to the motion
by setting forth particular facts indicating that there is a genuine issue for trial. Miss. River Basin
Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000). “After the non-movant has been given the
opportunity to raise a genuine factual issue, if no reasonable juror could find for the non-movant,
summary judgment will be granted.” Id.
III. ANALYSIS
Defendant has moved for summary judgment on the sole basis that Plaintiff’s claims against
her are barred by the applicable statute of limitations. Plaintiff, in turn, contends Defendant has
waived the application of limitations to this action.
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Plaintiff filed this action alleging jurisdiction based on diversity of citizenship, and raising
only a state law claim. (Compl. ¶¶ 3, 10). In diversity cases, courts apply federal procedural and
evidentiary rules, and the substantive laws of the forum state. Erie R.R. Co. v. Tompkins, 304 U.S.
64, 78 (1938). Under the Erie doctrine, federal courts apply the statute of limitations that the forum
state would apply. Huss v. Gayden, 571 F.3d 442, 449-50 (5th Cir. 2009) (citing Guar. Trust Co.
v. York, 326 U.S. 99, 109–10 (1945)).
In Texas,,actions for “death or personal injury” filed on behalf of non-residents are subject
both to Texas' statute of limitations and to the statute of limitations of the jurisdiction “in which the
wrongful act, neglect, or default took place.” TEX. CIV. PRAC. & REM. CODE § 71.031(a)(2)-(3).
Plaintiff is a resident of Mississippi and the collision underlying this action occurred in Louisiana.
(Compl. ¶¶ 1, 5). Accordingly, Plaintiff’s claims are subject to the statutes of limitations of both
Texas and Louisiana.
Claims for personal injury in Texas are governed by a two-year limitations period. TEX. CIV.
PRAC. & REM. CODE ANN. § 16.003; Askanase v. Fatjo, 130 F.3d 657, 668 (5th Cir. 1997). Claims
for personal injury in Louisiana are governed by a one-year prescriptive period. LA. CIV. CODE ART.
3492; Treadwell v. St. Tammany Par. Jail, 599 F. App'x 189, 190 (5th Cir. 2015). According to
Plaintiff, the collision occurred on September 3, 2013. (Compl. ¶ 5). He did not file this action until
February 10, 2015, well more than one year later.
Ferguson does not contest the general applicability of the Louisiana prescriptive period to
this action. Rather, he maintains his claim should survive summary judgment because Sevin
agreed to waive the limitations period in prior related litigation.1 Specifically, Ferguson contends
counsel for Sevin orally agreed in a court hearing to waive any applicable statute of limitations.
1
Although not precisely clear, it appears Ferguson is also suggesting equity weighs against dismissal of this
case because he was without any available forum in which to seek relief. However, Ferguson chose to file suit in
Mississippi twice, rather than seek relief in the state where the collision occurred and in which Sevin was a resident at
the time.
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Ferguson’s argument is based on a prior action filed by him on April 14, 2014 in the Circuit
Court of Jackson County, Mississippi asserting the same claim he asserts in this action. (Def. Mot
for Summ. Jt. Ex. A). On May 19, 2014 Sevin filed a motion to dismiss pursuant to Mississippi’s
statutory version of the forum non conveniens doctrine. She argued the witnesses and scene of
the accident were in Louisiana, and further that, as a resident of Louisiana,2 litigation in Mississippi
would impose monetary burdens on her travel. (Id. Ex. B). Ferguson filed a response to the
motion on June 4, 2014, arguing Mississippi was an appropriate forum for the action. (Id. Ex. C).
In her rebuttal, filed June 16, 2014, Sevin pointed out she had no direct ties to Mississippi, and also
noted she had asserted lack of personal jurisdiction as an affirmative defense. (Id. Ex. D).
The Mississippi court conducted a hearing on September 3, 2014. At the outset of the
hearing, Sevin’s counsel stated several issues needed to be addressed “the first of which was
referenced in our rebuttal which is that there is no personal jurisdiction over Ms. Sevin.” (Plf. Resp.
Ex. C at 2). Counsel then stated “we would ask the Court to find that there is no jurisdiction over
Ms. Sevin, a Louisiana resident with no ties in the Mississippi community.” (Id. at 3). Counsel then
also noted Sevin was requesting dismissal on the basis of inconvenient forum. (Id.).
Ferguson’s counsel responded, and stated “to be quite honest with the Court,” based on
the pleadings and argument of opposing counsel, “I do believe we do have to concede the issue
of personal jurisdiction.” (Id. at 4). Ferguson’s counsel noted the pending motion addressed the
issue of forum non conveniens, and argued those factors weighed in favor of plaintiff, but again
stated “I do believe it is appropriate at this time to concede the issue of jurisdiction.” (Id. at 5).
Counsel for Sevin responded by stating:
we do agree that there is no personal jurisdiction over Ms. Sevin in this case. We
did, should Your Honor wish to review the forum non-convenience ground, I believe
that we did assert in the motion that we would comply with the waiver portion of the
statute.
2
As referenced above, Sevin is currently a resident of Texas.
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(Id.). The judge responded simply “Okay. Very good. Get me an order.” (Id.).
On November 21, 2014, the Mississippi state judge signed a Judgment of Dismissal. The
Judgment states the cause came before the court “on the motion of Defendant, Marie Sevin, to
dismiss for lack of personal jurisdiction, and the Court having considered same finds that the
motion is well-taken and should be sustained.” (Def. Mot for Summ. Jt. Ex. E).
As Ferguson points out, the statute on which Sevin relied in asserting forum non conveniens
in the Mississippi state action requires the defendant to file a written stipulation that all defendants
waive the right to assert a statute of limitations defense with respect to any new action on the claim
asserted by the plaintiff before the court may dismiss a claim under the statute. Alston v. Pope,
112 So. 3d 422, 425 (Miss. 2013) (citing MISS. CODE ANN. § 11–11–3(4)(b) (Rev. 2004)). He
argues that the statements of counsel for Sevin in the September 2014 hearing in the Mississippi
state court constitutes oral compliance with the waiver requirement and thus bars Sevin from
asserting the statute of limitations in this action.
The Court disagrees. The statement of Sevin’s counsel on which Ferguson relies is not an
affirmative waiver. Rather, counsel makes clear that compliance with the waiver requirement is
contingent on whether the Mississippi state judge “wish[ed[ to review the forum non-convenience
ground.” (Plf. Resp. Ex. C at 5). And the judgment signed by the Mississippi state judge clearly
identifies the basis of dismissal as personal jurisdiction, not the inconvenience of the forum.
Accordingly, Ferguson has not shown there was an agreement to waive the applicable limitations
period and his claim is thus barred.
IV. CONCLUSION
Accordingly, the Court hereby GRANTS Defendant’s Motion for Summary Judgment
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(Clerk’s Dkt. #33). All claims brought by Plaintiff Kevin Ferguson are dismissed with prejudice.
SIGNED on January 13, 2016.
ROBERT L. PITMAN
UNITED STATES DISTRICT JUDGE
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