Case: 10-30069     Document: 00511199863          Page: 1    Date Filed: 08/10/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           August 10, 2010

                                     No. 10-30069                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



MARY ANN TIGERT,

                                                   Plaintiff–Appellant
v.

AMERICAN AIRLINES INC.; DAL GLOBAL SERVICES, L.L.C.,

                                                   Defendants–Appellees




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:09-cv-00958


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Mary Ann Tigert appeals the district court’s dismissal with prejudice of
her negligence suit against American Airlines, Inc. (“American”) and DAL Global
Services, L.L.C. (“DAL”). The district court found that Louisiana’s one-year
prescriptive period applied to Tigert’s case rather than California’s two-year
prescriptive period, and that Tigert’s claims were thus time-barred because she
filed her complaint more than a year after her injury. The district court also


        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 10-30069      Document: 00511199863    Page: 2    Date Filed: 08/10/2010

                                   No. 10-30069

denied Tigert’s request to transfer her case to a district court in California under
28 U.S.C. § 1404(a).
      On appeal, Tigert argues that the district court (1) failed to take into
account Louisiana’s practice of “strictly construing” prescriptive statutes in favor
of allowing, rather than denying, a suit to proceed; (2) abused its discretion by
denying her request for a transfer; and (3) abused its discretion by entering its
dismissal with prejudice rather than without. Because (1) the district court
correctly applied Louisiana’s choice of law provision to prescriptive periods, (2)
a transfer would not affect the timeliness of her claim, and (3) the res judicata
effect of the district court’s dismissal does not turn on whether it was with or
without prejudice, we affirm the district court’s dismissal.
            I. FACTUAL AND PROCEDURAL BACKGROUND
      On July 11, 2007, Tigert arrived at the Oakland, California airport for a
return flight with American Airlines to Shreveport, Louisiana, after visiting her
son. Due to her disability, American provided Tigert with a wheelchair upon her
arrival.   An individual named “Bonita” pushed Tigert’s wheelchair to the
airport’s security checkpoint.
      At the checkpoint, security officials conducted a further examination of
Tigert’s “C-Pap Machine.” Security personnel took the C-Pap Machine to a
nearby table, and Bonita instructed Tigert to walk toward it. As she did, Bonita
gathered Tigert’s carry-on bag and placed it on the floor behind Tigert.
      After security personnel informed Tigert that she could return to her seat,
Tigert turned and tripped over her carry-on bag, injuring her right knee. Tigert
boarded the plane to Shreveport, and upon arrival, her knee injury had
manifested to a degree requiring medical attention. In August 2007, Tigert
received injections to help alleviate the injury, and later that month, underwent
arthroscopic surgery.



                                         2
   Case: 10-30069    Document: 00511199863      Page: 3    Date Filed: 08/10/2010

                                  No. 10-30069

      On June 11, 2009, Tigert filed a negligence suit in the district court for the
Western District of Louisiana against American and DAL for their collective
failure “to protect her by properly controlling, guarding, watching, and
protecting her safety during the transportation of her through airport facilities.”
American and DAL filed a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), arguing that Louisiana’s one-year prescriptive period for
delictual actions time-barred her suit. The district court agreed, and dismissed
Tigert’s suit with prejudice, despite her request for a transfer to an appropriate
district court in California. Tigert timely appealed.
                        II. STANDARD OF REVIEW
      We review de novo the district court’s dismissal of Tigert’s action as time-
barred under Rule 12(b)(6). Brown v. Slenker, 

, 419 (5th Cir. 2000)
(citing Radford v. Gen. Dynamics Corp., 

, 398 (5th Cir. 1998)). We
accept as true all well-pleaded facts and view them in the light most favorable
to Tigert. In re Katrina Canal Breaches Litig., 

, 205 (5th Cir. 2007)
(citation omitted). “To survive a Rule 12(b)(6) motion to dismiss, [Tigert] must
plead ‘enough facts to state a claim to relief that is plausible on its face.’” 

Atl. Corp. v. Twombly, 

, 570 (2007)).
      We review the district court’s decision whether to transfer a case pursuant
to § 1404(a) for abuse of discretion. Save Power Ltd. v. Syntek Finance Corp.,

, 950 n.3 (5th Cir. 1997). Likewise, we review “the district court’s
decision to grant a motion to dismiss with or without prejudice only for abuse of
discretion.” Club Retro, LLC v. Hilton, 

, 215 n.34 (5th Cir. 2009)
(citing Schiller v. Physicians Res. Group Inc., 

, 567 (5th Cir. 2003)).
                                III. ANALYSIS
      On appeal, Tigert advances three arguments. First, she contends that the
district court should have applied California’s two-year prescriptive period
rather than Louisiana’s one-year prescriptive period. Next, she argues that, in

                                         3
     Case: 10-30069   Document: 00511199863           Page: 4   Date Filed: 08/10/2010

                                       No. 10-30069

lieu of dismissing her suit with prejudice, the district court should have
transferred her case to an appropriate federal court in California. Finally, Tigert
asserts that the district court should have dismissed her suit without prejudice,
which would have allowed her to pursue her action in California and escape
Louisiana’s time bar. We address each argument in turn.
A.      Louisiana’s One-Year Prescriptive Period
        Tigert contends that the district court misapplied Louisiana’s conflict of
law and prescription principles when it held that her suit was time-barred.
Specifically, Tigert argues that Louisiana has a policy of “strictly interpreting”
prescriptive periods in favor of maintaining, rather than dismissing, an action
where two permissible views involving prescription are available. Tigert also
argues that even if Louisiana’s choice of law provision mandates that Louisiana’s
prescriptive    period   applies,      she   has    demonstrated     that   “compelling
considerations of remedial justice” favor applying California’s prescriptive
period. L A. C IV. C ODE A NN. art. 3549(B).
        Louisiana law states that “delictual actions are subject to a liberative
prescription of one year,” which “commences to run from the day injury or
damages is sustained.”      

        California law, on the other hand,
provides a two year statute of limitations for any “action for assault, battery, or
injury to, or for the death of, an individual caused by the wrongful act or neglect
of another.” C AL. C IV. P ROC. § 335.1. Because Tigert filed this diversity suit in
Louisiana, we are bound to follow Louisiana’s choice of law rules.                   See
Marchesani v. Pellerin-Milnor Corp., 

, 486 (5th Cir. 2001) (citation
omitted).    Louisiana’s choice of law provision provides that “[w]hen the
substantive law of another state would be applicable to the merits of an action
brought in this state, the prescription and peremption law of this state applies.”
L A. C IV. C ODE A NN. art. 3549(B).



                                             4
   Case: 10-30069    Document: 00511199863      Page: 5   Date Filed: 08/10/2010

                                  No. 10-30069

      Article 3549(B), however, incorporates a relevant exception: if Louisiana
law prescribes a cause of action, but the law of the state whose law applies to the
substantive conduct would find the action timely, the suit may be maintained as
timely in a Louisiana court if maintenance in Louisiana is “warranted by
compelling considerations of remedial justice.” “There is no question that the
authors of the ‘compelling considerations of remedial justice’ exception intended
it to be used in only the most extraordinary of circumstances.” 

(citation omitted). Comment f to article 3549 describes examples of
“compelling considerations” as those
      where through no fault of the plaintiff an alternative forum is not
      available as, for example, where jurisdiction could not be obtained
      over the defendant in any state other than the forum or where for
      some reason a judgment obtained in the other state having
      jurisdiction would be unenforceable in other states, [and] . . . also
      situations where suit in this alternative forum, although not
      impossible would be extremely inconvenient for the parties.
(citation and internal quotation marks omitted). “In cases where plaintiffs have
litigated their claims in Louisiana by choice, not by necessity, claims of
‘compelling considerations’ warranting maintenance of the suit in Louisiana
have been consistently rejected.” 

; see 

“[o]nly one case has found compelling considerations of remedial justice,” and in
that case, “Louisiana was the only forum in which suit could be maintained,
because it was the only forum in which jurisdiction could be obtained over all the
defendants”) (citing Smith v. Odeco (UK) Inc., 

, 409 (La. Ct. App.
1993)).
      Here, Tigert has not demonstrated “compelling considerations of remedial
justice” that would be served by maintenance of her action in Louisiana. See L A.
C IV. C ODE A NN . art. 3549. California provides the locus of the alleged injury
causing conduct and the place of the injury, and Tigert has not alleged that her
decision to litigate her negligence claim in Louisiana was based on necessity

                                        5
   Case: 10-30069       Document: 00511199863          Page: 6    Date Filed: 08/10/2010

                                       No. 10-30069

rather than choice. See 

. Simply put, Tigert has not
alleged any inconvenience that rises to the extraordinary level necessary to
trigger article 3549’s “compelling considerations of remedial justice” exception
to its prescriptive period choice of law provision.
       Tigert’s argument that Louisiana strictly construes prescriptive statutes
in favor of maintaining, rather than dismissing, an action, lacks merit. The
district court did not interpret Louisiana’s prescriptive statute, L A. C IV. C ODE
A NN. art 3492; rather, it interpreted Louisiana’s choice of law provision, which
mandates that Louisiana’s prescriptive period applies to all cases filed in
Louisiana courts, irrespective of the underlying substantive law. See 

The cases Tigert cites for her argument do not consider whether Louisiana
courts should apply another state’s prescriptive period; instead, they address
instances in which a person cannot bring a suit for a period of time;1 a plaintiff’s
complaint identifies two causes of action, each susceptible to a different
prescriptive period;2 or a question arises as to interruption or suspension of a
prescriptive period.3 Finally, Tigert’s contention that her inconvenience, when
coupled with Louisiana’s strict construction principles, rises to the level of a
compelling consideration of remedial justice, entirely lacks support in Louisiana
caselaw.



       1
         Carter v. Haygood, 

, 1268 (La. 2002) (“To soften the occasional
harshness of prescriptive statutes, our courts have recognized a jurisprudential exception to
prescription: contra non valentem non currit praescriptio, which means that prescription does
not run against a person who could not bring his suit.”).
       2
         United Carbon Co. v. Miss. River Fuel Corp., 

, 211–12 (La. 1956) (holding
that a claim was for enforcement of a contract rather than on an open account).
       3
        Foster v. Breaux, 

, 529–30 (La. 1972) (holding that a filing was timely
because the plaintiff filed in a court of competent jurisdiction and the defendant had waived
an objection to improper venue, which interrupted the prescriptive period); Mansur v.
Abraham, 

, 425 (La. 1935) (holding that plaintiff timely filed because prescription
does not run where the last day falls on a Sunday or a legal holiday).

                                              6
     Case: 10-30069   Document: 00511199863     Page: 7     Date Filed: 08/10/2010

                                  No. 10-30069

        The district court correctly determined that Louisiana’s one-year
prescriptive period applied to Tigert’s suit. Because Tigert’s injury accrued on
July 11, 2007, her filing on June 11, 2009 was time-barred. We thus hold that
the district court correctly dismissed Tigert’s suit as untimely.
B.      Transfer under 28 U.S.C. § 1404(a)
        In the alternative, Tigert argues that the district court should have
transferred her case to a district court in California. In support, she cites
Seagrave v. Delta Airlines, Inc., in which a district court, after finding that
Louisiana’s prescriptive period barred the plaintiff’s claim in Louisiana,
transferred the case to a federal court in Virginia, which had a prescriptive
period that had not yet expired. 

, 85–86 (E.D. La. 1994). The
Seagrave court found that a dismissal was not “in the interests of justice, as it
might create prescription problems for the plaintiff in Virginia, and it is plain
that the suit could have been filed in Virginia.”         

  Although the
Seagrave court “recognize[d] that Louisiana Civil Code article 3549 contemplates
the dismissal of the action,” it concluded that “a transfer comports with both the
directive of article 3549 and the interests of justice,” especially considering
“Louisiana’s strong policy of providing remedies to tortiously injured plaintiffs
and deterring wrongful conduct (codified in [L A. C IV. C ODE A NN.] art. 3542) and
the practical solution offered by 42 U.S.C. § 1404(a).” 

analogous to Tigert’s case, here, the district court
correctly noted that the Seagrave court failed to consider the effect of the
Supreme Court’s decisions in Ferens v. John Deere Co., 

, 523 (1990),
and Piper Aircraft Co. v. Reyno, 

, 244 n.8 (1981). Ferens held that
a transferee forum must “apply the law of the transferor court, regardless of who
initiates the transfer. A transfer under § 1404(a), in other words, does not
change the law applicable to a diversity 

. Likewise, in
Piper Aircraft, the Supreme Court stated that although “a court ordinarily must

                                        7
     Case: 10-30069   Document: 00511199863     Page: 8    Date Filed: 08/10/2010

                                   No. 10-30069

apply the choice-of-law rules of the State in which it sits[,] . . . where a case is
transferred pursuant to 28 U.S.C. § 1404(a), it must apply the choice-of-law rules
of the State from which the case was 

n.8 (citing
Van Dusen v. Barrack, 

(1946)).
        In other words, were the district court to have transferred Tigert’s cause
of action to a district court in California, under Piper Aircraft and Ferens, a
California district court would be bound to apply Louisiana’s article 3549, find
that Louisiana’s one year prescriptive period applies, and conclude that Tigert
failed to demonstrate any compelling considerations of remedial justice
warranting application of California’s longer prescriptive period.         Because
Louisiana’s one-year prescriptive period would follow Tigert to California, we
agree with the district court that transferring would do little more than
inconvenience the parties. We thus decline to adopt the approach used in
Seagrave, a non-precedential district court decision, and instead affirm the
district court’s decision not to transfer Tigert’s case to a district court in
California.
C.      Dismissal With Prejudice
        Finally, Tigert argues that the district court abused its discretion by
entering a dismissal with prejudice rather than a dismissal without prejudice.
She claims that the district court noted the possibility that she could re-file her
negligence suit in California, but contends that it closed off her opportunity to
do so by entering a dismissal with prejudice. She asserts that dismissals for
failure to state a claim are final, and would thus be res judicata on another
action.
        The Supreme Court, however, has explained that a dismissal with
prejudice does not necessarily bar a plaintiff from filing again in another
jurisdiction. See Semtek Int’l v. Lockheed Martin Corp. (“Semtek”), 

,
506 (2001) (“[U]nlike a dismissal ‘without prejudice,’ the dismissal in the present

                                         8
   Case: 10-30069    Document: 00511199863      Page: 9    Date Filed: 08/10/2010

                                  No. 10-30069

case barred refiling of the same claim in the United States District Court for the
Central District of California. That is undoubtedly a necessary condition, but
it is not a sufficient one, for claim-preclusive effect in other courts.”).
Traditionally, “expiration of the applicable statute of limitations merely bars the
remedy and does not extinguish the substantive right, so that dismissal on that
ground does not have claim-preclusive effect in other jurisdictions with longer,
unexpired limitations periods.” 

(citing R ESTATEMENT (S ECOND) OF
C ONFLICT OF L AWS §§ 142(2), 143 (1969); R ESTATEMENT OF J UDGMENTS § 49, cmt.
a (1942)). The Semtek Court concluded that “federal common law governs the
claim-preclusive effect of a dismissal by a federal court sitting in diversity,” and
adopted, “as the federally prescribed rule of decision, the law that would be
applied by state courts in the State in which the federal diversity court sits.” 

(citations omitted).
      In other words, the district court’s designation of its dismissal as with or
without prejudice is immaterial. What matters for purposes of Tigert’s case is,
whether given refiling in California, a California court would find that the
district court’s dismissal on grounds of Louisiana’s prescriptive period bars
refiling in California. Cf. 

(“Because the claim-preclusive effect of the
California federal court’s dismissal ‘upon the merits’ of petitioner’s action on
statute-of-limitations grounds is governed by a federal rule that in turn
incorporates California’s law of claim preclusion . . . , the Maryland Court of
Special Appeals erred in holding that the dismissal necessarily precluded the
bringing of this action in the Maryland courts.”). Because that issue is not
before us, we decline to address it. We do note, however, that a dismissal of
Tigert’s claim without prejudice would abrogate American and DAL’s statute of
limitations defense to the extent that Tigert wishes to re-file and prosecute her
claim in Louisiana. See 

(“The primary meaning of ‘dismissal without
prejudice,’ we think, is dismissal without barring the plaintiff from returning

                                         9
  Case: 10-30069    Document: 00511199863       Page: 10   Date Filed: 08/10/2010

                                   No. 10-30069

later, to the same court, with the same underlying claim.           That will also
ordinarily (though not always) have the consequence of not barring the claim
from other courts, but its primary meaning relates to the dismissing court
itself.”). For these reasons, we find that the district court did not abuse its
discretion by dismissing Tigert’s claim with prejudice.
                              IV. CONCLUSION
      The district court correctly found that Louisiana’s one year prescriptive
period applied to Tigert’s claim, and that because it did, Tigert’s claim was time-
barred. Additionally, the district court did not abuse its discretion when it
denied Tigert’s request to transfer her case to a district court in California.
Finally, the district court did not abuse its discretion by dismissing Tigert’s suit
with prejudice. For all these reasons, we affirm the district court’s dismissal of
Tigert’s negligence suit.
      AFFIRMED.




                                        10