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United States Court of Appeals,
Fifth Circuit.
No. 94-30440
Summary Calendar.
Lisa H. HAWKINS, Individually and as Natural Tutrix of rpi Jammie
K. Hawkins, rpi Latoya F. Hawkins, rpi Johnnie V. Hawkins, and
Richard Hawkins, Plaintiffs-Appellants,
v.
Tom E. McHUGH, Individually and in his official capacity as Mayor
of the City of Baton Rouge, Wayne Rogillio, Individually and in his
capacity as former Chief of Police of the Baton Rouge Police
Department, Sergeant K. Clark, Individually and in his capacity as
a member of the Baton Rouge Police Department, and the City of
Baton Rouge, La., Defendants-Appellees.
Feb. 23, 1995.
Appeal from the United States District Court for the Middle
District of Louisiana.
Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
The issue in this case is whether, in an action brought
pursuant to 42 U.S.C. § 1983 where the applicable statute of
limitations is borrowed from Louisiana law, the filing of a
complaint which is later dismissed because it was not served upon
the defendant within the 120 days allowed by the former FED.R.CIV.
P. 4(j)1 interrupts the prescriptive period and tolls prescription.
1Rule 4 was extensively revised in the 1993 Amendments to
the Federal Rules. Much of the language of the former
subdivision (j) is now contained in subdivision (m). See
FED.R.CIV.P. 4 advisory committee's note. None of the parties
contends that the 1993 Amendments to Rule 4 in any way affect
this case. All references in this opinion to Rule 4(j) refer to
the former Rule 4(j), as it existed prior to the 1993 Amendments.
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We hold that it does not.
FACTS
Lisa H. Hawkins, et al. (Appellants) are the surviving family
members of Johnnie Edward Hawkins, who died on December 17, 1990,
as a result of a gunshot wound inflicted by a Baton Rouge Police
Officer. A complaint seeking damages under 42 U.S.C. § 1983 was
filed on December 17, 1991 in the United States District Court for
the Middle District of Louisiana.
Appellants did not serve the defendants within 120 days as
required by Rule 4(j), and the district court dismissed the action
pursuant to that rule. The Appellants appealed that dismissal, and
while the appeal was pending filed a second, identical complaint.
When this Court affirmed the dismissal of the first action,
the Appellees filed a motion to dismiss the second complaint on the
grounds that it was time-barred. The district court granted the
motion and dismissed the Appellants' action by order issued on June
22, 1994. The district court held that the Federal Rules applied
to the situation, and that under the Federal Rules applied to the
situation, and that under the Federal Rules the filing of the first
complaint had not interrupted the prescriptive period. Thus the
second complaint, filed more than one year after the incident
giving rise to the action, the suit was untimely.
STANDARD OF REVIEW
We review the district court's grant of summary judgment de
novo. Degan v. Ford Motor Co., 869 F.2d 889 (5th Cir.1989).
Summary judgment is proper where there is no genuine issue as to
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any material fact and the moving party is entitled to a judgment as
a matter of law. FED.R.CIV.P. 56(c). The appellate court must
affirm the district court's judgment if the result is correct, even
if the judgment is based on improper ground. Stegmaier v.
Trammell, 597 F.2d 1027 (5th Cir.1979); see also 10 C. WRIGHT, A.
MILLER, AND M. KANE, FEDERAL PRACTICE AND PROCEDURE § 2716 (1983).
DISCUSSION
In an action brought in federal court pursuant to 42 U.S.C.
§ 1983, the court "borrows" the forum state's statute of
limitations for personal injury actions. Wilson v. Garcia, 471
U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). In this case, the
applicable rule of limitations is the one-year prescriptive period
established by Article 3492 of the Louisiana Civil Code.
In § 1983 actions, a state statute of limitations and the
coordinate tolling rules are in most cases binding rules of law
which a federal court is authorized to disregard only if the state
law is inconsistent with the Constitution and laws of the United
States. Board of Regents of University of State of N.Y. v.
Tomanio, 446 U.S. 478, 484-85, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440
(1980). Under Tomanio, we must identify the Louisiana rule of
tolling and determine whether that rule is inconsistent with
federal law. Id. at 486, 100 S.Ct. at 1796. Although Tomanio
makes it clear that there is no policy embodied in § 1983 that
requires any particular tolling rules. Id. at 488, 100 S.Ct. at
1797, this does not preclude the possibility that Rule 4(j) might
embody a policy requiring that the applicable statute of
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limitations not be tolled.
Rule 4(j) provides that if service of summons and complaint
is not made on the defendant within 120 days after the filing of
the complaint, the court shall dismiss the action without prejudice
as to that defendant. A federal court that dismisses without
prejudice a suit arising from a federal statutory cause of action
has not adjudicated the suit on its merits, and leaves the parties
in the same legal position as if no suit had been filed. Hilbun v.
Goldberg, 823 F.2d 881, 883 (5th Cir.1987), cert. denied, 485 U.S.
962, 108 S.Ct. 1228, 99 L.Ed.2d 427 (1988). We have recognized
that a such a dismissal will result in an action being time-barred
if the applicable statute of limitations has run after the filing
of the complaint. See Norlock v. City of Garland, 768 F.2d 654,
658 (5th Cir.1985).
We need not decide whether Rule 4(j) expresses a policy that
would require that a statute of limitations not be tolled during
the pendency of a suit that is later dismissed for failure to
serve, or whether that result is merely a fortuitous consequence of
the application of the Rule that would yield to a conflicting state
policy because there is no conflict between the federal rule and
the applicable state rule.
Louisiana law provides that "[i]nterruption is considered
never to have occurred if the plaintiff abandons, voluntarily
dismisses, or fails to prosecute the suit at trial." LA.CIV.CODE
ANN. art. 3463. Appellants contend that, since Louisiana courts
lack the power to enter involuntary dismissals for failure to serve
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the defendant within 120 days, art. 3463 should be read narrowly to
provide for the annulment of interruption of prescription only
under its enumerated conditions: if the plaintiff abandons [after
five years, under LA.CODE CIV.PROC.ANN. art. 561], voluntarily
dismisses, or fails to prosecute the suit at trial. We considered
substantially the same argument in Hilbun and rejected it. See
Hilbun, 823 F.2d at 883-84.
In Hilbun, we considered the effect of involuntary dismissal
for failure to prosecute pursuant to FED.R.CIV. P. 41(b). We
concluded that if Louisiana courts had the same broad procedural
power given federal courts to dismiss for failure to prosecute, the
exercise of that power would lead to the same consequences as
abandonment under Article 3463; the legal result would be the same
as if no suit had ever been filed. Hilbun, 823 F.2d at 884. We
see no relevant difference between dismissal for failure to
prosecute under Rule 41(b) and dismissal for failure to serve under
Rule 4(j). We believe that Louisiana courts would attach the same
consequences to a dismissal for failure to serve under Rule 4(j) as
to an abandonment under Article 3463.
We hold that a dismissal under Rule 4(j) annuls the suspension
of prescription where Louisiana law provides the rules of
limitations. Because there is no conflict between state and
federal law, we do not decide whether a federal rule requires that
a suit dismissed under Rule 4(j) not toll the statute of
limitations in a § 1983 action in the face of a contrary state
rule.
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