Summary
rejecting argument under article 2324(C) "that timely filed suit against the other defendants interrupted prescription against Premier, . . . [when] the other defendants have been dismissed without liability having been imposed upon them
Summary of this case from Harris v. Advance Transformer Co.Opinion
Civil Action No: 99-0740, Section: "J"(2).
May 11, 2000.
MINUTE ENTRY
Before the Court is defendant Premier Oilfield Consultants' Motion for Summary Judgment on prescription. Plaintiff opposes the motion. The motion, set for hearing on briefs on April 26, 2000, is before the Court on briefs without oral argument.
In its brief and pointed statement of uncontested material facts, defendant Premier Oilfield Consultants asserts that plaintiff alleged that he sustained a personal injury on a fixed platform on the outer continental shelf off Louisiana on May 27, 1998; that Blanco did not sue Premier until December 2, 1999, more than a year after the accident; and that Blanco's earlier claims, against defendants Continental Oil Company, Chevron USA, Inc., and WT Offshore, Inc. have been dismissed, without liability having been imposed on any of those defendants.
Plaintiff has not filed any traverse to defendant's statement of uncontested material facts, but argues instead that his claims against Premier have not prescribed because Premier is solidarily liable with timely sued defendants, and also because the December 2, 1999 amendment adding Premier as a defendant should relate back to the original, timely filed complaint.
With respect to plaintiff's argument based upon Louisiana Civil Code articles 2324(C) and 3503 that the timely filed suit against the other defendants interrupted prescription against Premier, that argument is inapplicable where the other defendants have been dismissed without liability having been imposed upon them. "[W]here no liability is found on the part of a timely sued alleged tortfeasor, prescription will not be interrupted as to another joint tortfeasor, who is not timely sued, since no joint or solidary obligation exists." Gioustover v. Progressive American Ins. Co., 561 So.2d 961, 964 (La.App. 4th Cir. 1990). In fact, WT Offshore, Inc., the entity with which Premier entered into the contract that plaintiff argues provides the basis for solidary liability, was dismissed without opposition from plaintiff (Rec. Doc. 40).
As for plaintiff's argument that his amendment filed on WT Offshore, Inc. have been dismissed, without liability having been imposed on any of those defendants.
Plaintiff has not filed any traverse to defendant's statement of uncontested material facts, but argues instead that his claims against Premier have not prescribed because Premier is solidarily liable with timely sued defendants, and also because the December 2, 1999 amendment adding Premier as a defendant should relate back to the original, timely filed complaint.
With respect to plaintiff's argument based upon Louisiana Civil Code articles 2324(C) and 3503 that the timely filed suit against the other defendants interrupted prescription against Premier, that argument is inapplicable where the other defendants have been dismissed without liability having been imposed upon them. "[W]here no liability is found on the part of a timely sued alleged tortfeasor, prescription will not be interrupted as to another joint tortfeasor, who is not timely sued, since no joint or solidary obligation exists." Gioustover v. Progressive American Ins. Co., 561 So.2d 961, 964 (La.App. 4th Cir. 1990). In fact, WT Offshore, Inc., the entity with which Premier entered into the contract that plaintiff argues provides the basis for solidary liability, was dismissed without opposition from plaintiff (Rec. Doc. 40).
As for plaintiff's argument that his amendment filed on December 2, 1999 should relate back to the date of filing the initial petition, the law interpreting Federal Rule 15(c) indicates that the "relation back" of amendments adding defendants applies when a plaintiff has mistakenly misnamed a defendant it fully intended to sue, not in a case like the one at bar where the plaintiff was simply unable to identify the defendant within the prescriptive period. Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir. 1998). "[A] new defendant cannot normally be substituted or added by amendment after the statute of limitations has run." Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir. 1993)
And this is not plaintiff's only problem in attempting to argue that the amendment adding Premier should relate back to the initial pleading. A newly added defendant must have had notice of the pending action "within the period provided by Rule 4(m) for service of summons and complaint" — in other words, within one year and 120 days of the date of injury. Fed.R.Civ.P. 15(c)(3). Plaintiff's amendment adding Premier was not filed until December 2, 1999, well beyond the period required by the rule, since his injury occurred on May 27, 1998. Therefore, his amendment does not relate back to the filing of the initial pleading.
In addition, defendant denies having received actual notice of the suit within the prescriptive period, and plaintiff has not contested that assertion.
Accordingly;
IT IS ORDERED that defendant Premier Oilfield Consultants' Motion for Summary Judgment on prescription (Rec. Doc. 47) should be and is hereby GRANTED, and plaintiff's claims against it are hereby DISMISSED.