Ryan, et al v. Phillips 66, et al

United States Court of Appeals
for the Fifth Circuit

No. 20-30193

Damon Ryan; Brian Bilbo,

Plaintiffs—Appellants,

versus

Phillips 66; Westlake Chemical Corporation,

Defendants—Appellees,

consolidated with
_____________

No. 20-30195
_____________

Greg Harrison; Brian Thomas; Skipper Thomas, Jr.,

Plaintiffs—Appellants,

versus

Phillips 66; Westlake Chemical Corporation,

Defendants—Appellees.

United States Court of Appeals
Fifth Circuit
FILED
December 14, 2020

Lyle W. Cayce
Clerk
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Appeal from the United States United States District Court
for the Western District of Louisiana
USDC No. 2:19-CV-1095
USDC No. 2:19-CV-1092

Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
In these two consolidated cases, Plaintiffs-Appellants Damon Ryan
and Brian Bilbo (“Ryan Plaintiffs”), as well as Greg Harrison, Brian Thomas,
and Skipper Thomas (“Harrison Plaintiffs”), appeal the district court’s
judgments in a workplace tort claim. The district court granted Defendant-
Appellee Westlake Chemical Corporation’s motions to dismiss and denied
Plaintiffs’ motions for reconsideration. We AFFIRM.
I. Facts & Procedural History
Plaintiffs all allege that they suffered injuries as a result of a power
outage on August 22, 2018. This power outage allegedly caused facilities
operated by Phillips 66 and Westlake Chemical Corporation to release
chemicals into the air. At the time of the accident, all plaintiffs were working
at a plant owned by Sasol North America. The Ryan Plaintiffs were employed
by Cajun Industries L.L.C., and the Harrison Plaintiffs were employed by
Turner Industries Group.
On August 20, 2019, the Ryan Plaintiffs fi led a federal lawsuit against
Phillips 66, Westlake, Sasol North America, and Cajun Industries. On the
same date, the Harrison Plaintiffs filed a similar lawsuit against the same
defendants, except Cajun Industries was replaced by Turner Industries in

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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that suit. None of these defendants were served in either case until
September of 2019.
In the Ryan suit, Cajun Industries, a Louisiana citizen like the
Plaintiffs, moved to dismiss under Fed R. Civ. P. 12(b)(1) for lack of
subject matter jurisdiction because Cajun was a non-diverse defendant. In the
Harrison suit, Turner Industries filed an answer noting that it was a Louisiana
corporation and pointing out that Plaintiffs did not allege their citizenship.
All the plaintiffs filed motions to voluntarily dismiss Cajun Industries,
Turner Industries, and Sasol North America (which had unknown
citizenship) in order to ensure subject matter jurisdiction. Plaintiffs in both
cases then amended their complaints to clarify that Westlake and Phillips 66
were the only remaining defendants.
In both cases, Westlake then filed a motion to dismiss under Fed. R.
Civ. P.
12(b)(6), claiming that the suit was “prescribed,” or time-barred.
The district court agreed and granted Westlake’s motions. Plaintiffs in both
cases moved for reconsideration. The district court denied their motions,
refusing to consider arguments that Plaintiffs had failed to raise previously.
Plaintiffs now appeal.
II. Standard of Review
We review a district court’s grant of a motion to dismiss de novo. See
Firefighters’ Ret. Sys. v. Grant Thornton, L.L.P., 894 F.3d 665, 669 (5th Cir.
2018). A court may dismiss an action under Rule 12(b)(6) if “it is evident
from the plaintiff’s pleadings that the action is [time-]barred and the
pleadings fail to raise some basis for tolling[.]” Jones v. Alcoa, Inc., 339 F.3d
359, 366 (5th Cir. 2003). The standard of review for a denial of a motion for
reconsideration is for abuse of discretion. McClendon v. United States, 892
F.3d 775, 781 (5th Cir. 2018).

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III. Discussion
(i) Prescription
Plaintiffs argue that their claims are not prescribed. In Louisiana,
“liberative prescription” is a method of barring a claim after a certain amount
of time that is akin to a statute of limitations. La. Civ. Code art. 3447.
Tort claims must be brought within a year of the day of injury. Id. art. 3492.
Prescription can be “interrupted,” which stops the running of the clock,
“when the obligee commences action against the obligor, in a court of
competent jurisdiction and venue.” Id. art. 3462. An action commenced in
an “incompetent” court only interrupts prescription as to defendants served
within the prescriptive period. Id. The district court granted Westlake’s
motions to dismiss, noting that no defendant was served within the one-year
limitations period and that the court’s initial lack of subject matter
jurisdiction prevented the lawsuit from interrupting prescription.
Plaintiffs contend that their amended complaint, in which there is
complete diversity, relates back under Fed. R. Civ. P.
15(c) to the date of
the filing of the original complaint, which was within the prescriptive period.
They argue that this original complaint effectively interrupted prescription.
We disagree. Under Fed. R. Civ. P.
15(c), an amended complaint relates
back to the date of the original pleading when “the amendment asserts a
claim or defense that arose out of the conduct, transaction, or occurrence set
out—or attempted to be set out—in the original pleading.” Plaintiffs’
amended complaints do successfully assert claims arising out of the same
occurrence described in the original pleadings. However, Rule 15 was not
designed to cure a failure to effect proper service of process.
“When sitting in diversity, we apply the state’s statutes of limitation
and accompanying tolling rules.” Bloom v. Aftermath Pub. Adjusters, Inc., 902
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F.3d 516, 517 (5th Cir. 2018). Louisiana’s prescription statute is clear that if
a claim is filed in an “incompetent” court, prescription is interrupted “only
as to a defendant served by process within the prescriptive period.” La.
Civ. Code art. 3462. An incompetent court includes one that lacks subject
matter jurisdiction. See La. Code Civ. Proc.
art. 5251(4). The federal
district court where Plaintiffs filed their case initially lacked subject matter
jurisdiction and was therefore incompetent. Under the statute, Plaintiffs
were required to serve defendants within one year of the incident.
The statute does not allow plaintiffs to cure initial incompetence in
order to negate the service requirement. This is evident from the text of the
statute itself, as well as from Louisiana state court cases. For example, in
Rasheed v. Pace, 489 So.2d 488, 488–89 (La. Ct. App. 1986), plaintiffs filed
suit against several defendants, including a municipality. They did so in a city
court, which lacked subject matter jurisdiction over municipalities. Id. The
dismissal of the municipality from the action “did not cure the situation” and
the court held that the claim was prescribed because defendants were not
served within the one-year period. Id. Rule 15 cannot circumvent Louisiana’s
statutory requirement of either filing in a court of competent jurisdiction or
serving defendants within one year. While Rule 15 is an appropriate vehicle
to “remedy inadequate jurisdictional allegations, it cannot remedy defective
jurisdictional facts.” See Whitmire v. Victus Ltd., 212 F.3d 885, 888 (5th Cir.
2000) (also noting that “[t]he danger against which a court must guard is that
a party will attempt to use [relation back] to retroactively create subject
matter jurisdiction”) (internal quotation marks omitted); see also White v.
Louisiana, 178 F.3d 1291, at *2 (5th Cir. 1999) (unpublished) (holding relation
back to be futile as the proposed amendment “could only relate back to a date
on which the court lacked jurisdiction”).
Plaintiffs rely on Brown v. Texas & P.R. Co., which held that an
amended complaint that cures an initial lack of subject matter jurisdiction
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relates back to the filing of the original complaint and therefore interrupts
prescription. 392 F. Supp. 1120, 1124–25 (W.D. La. 1975). We disagree with
the district court’s conclusion in that case for the aforementioned reasons
and we decline to follow it here. Plaintiffs also point to Ray v. Alexandria Mall,
434 So.2d 1083, 1084 (La. 1983), which held that a plaintiff’s amended
petition reflecting the proper defendant related back under Louisiana’s
relation back statute and was therefore within the prescriptive period.
However, that case dealt with a situation where there was a mistake of
identity regarding the proper defendant. Id. The court noted that the
Louisiana statute was analogous to Rule 15 and noted that the mistaken
identity situation was of the type intended to be remedied by Rule 15. Id. at
1087. That case is therefore inapplicable.
While Rule 15 could apply procedurally to allow an amended
complaint such as this one to relate back in some cases, Rule 15 was not
designed to supersede substantive service of process requirements. The
district court was correct in holding that the amended complaint did not
relate back in this case.
(ii) Denial of the Motion for Reconsideration
Plaintiffs contend that the district court erroneously denied their
motions for reconsideration, as the arguments raised therein have merit,
although they were not raised previously. The district court considered their
motions under Fed. R. Civ. P. 59(e) and 60(b). These rules are “not the
proper vehicle for rehashing evidence, legal theories, or arguments that could
have been offered or raised before the entry of judgment.” Templet v.
HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). Because the claims
against Phillips 66 remained pending, the district court’s dismissal of
Westlake was interlocutory in both cases. Fed. R. Civ. P. 54(b) governs
review of interlocutory orders. While Rules 59(e) and 60(b) “do[] not permit
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consideration of arguments that could have been raised previously,” Rule
54(b) permits the district court “to reconsider and reverse its decision for
any reason it deems sufficient.” McClendon, 892 F.3d at 781. Normally,
“when a district court applies the more stringent Rule 59(e) standard in
denying a motion to reconsider an interlocutory order, we must vacate and
remand for the district court to reconsider the motion for reconsideration
under the more flexible Rule 54(b).” Id. (cleaned up).
However, Plaintiffs never argued on appeal that the district court
applied the wrong standard.
1
Issues not briefed on appeal are abandoned. See
Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994). As this claim is forfeited,
we hold that the district court did not abuse its discretion in denying
Plaintiffs’ motion for reconsideration.
IV. Conclusion
For the aforementioned reasons, we AFFIRM the district court’s
grant of Westlake’s motions to dismiss and denial of Plaintiff’s motions for
reconsideration.

1
Additionally, while Plaintiffs mentioned Rule 54 in passing in their motions for
reconsideration, all Plaintiffs entitled their motions for reconsideration “Memorandum in
Support of Motion to Alter or Amend Judgment Pursuant to Fed. R. Civ. P. Rule
59(e).”
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