Luther F. Anderson v. Joseph Papillion, 445 F.2d 841 (5th Cir. 1971). · Go Syfert
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Luther F. Anderson v. Joseph Papillion, 445 F.2d 841 (5th Cir. 1971). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases · …state statutes of limitations, not the federal rules of civil procedure, govern the determination of whether diversity cases are brought timely. ≈ altered
31 citation events (9 in the last 25 years) across 12 distinct courts.
Strongest positive: Ellis v. Great Southwestern Corporation (ca5, 1981-06-05) · Strongest negative: Combee v. Shell Oil Co. (ca5, 1980-04-18)
Treatment trajectory · 1973 → 2026 · click a year to view as-of
1973 1999 2026
Top citers, strongest first. 8 distinct citers. How cited ↗
cited Cited "but see" Combee v. Shell Oil Co.
5th Cir. · 1980 · signal: but see · confidence high
But see Anderson v. Papillion, 445 F.2d 841 (5th Cir. 1971). .
cited Cited "but see" Rickey Combee, Cross-Appellant v. Shell Oil Company, Defendant-Third Party Travelers Insurance Company v. Kendall Construction Co., Third Party Cross-Appellees
3rd Cir. · 1980 · signal: but see · confidence high
But see Anderson v. Papillion, 445 F.2d 841 (5th Cir. 1971) 6 See note 5, supra
discussed Cited as authority (rule) Ellis v. Great Southwestern Corporation
5th Cir. · 1981 · confidence medium
Walker v. Armco Steel Corp., 446 U.S. 740 , 100 S.Ct. 1978 , 64 L.Ed.2d 659 (1980); Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530 , 69 S.Ct. 1233 , 93 L.Ed. 1520 (1949); Anderson v. Papillion, 445 F.2d 841, 842 (5th Cir. 1971). 18 Once grasped, these propositions are not very difficult to apply in an ordinary case.
discussed Cited as authority (rule) Ellis v. Great Southwestern Corp.
5th Cir. · 1981 · confidence medium
Walker v. Armco Steel Corp., 446 U.S. 740 , 100 S.Ct. 1978 , 64 L.Ed.2d 659 (1980); Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530 , 69 S.Ct. 1233 , 93 L.Ed. 1520 (1949); Anderson v. Papillion, 445 F.2d 841, 842 (5th Cir. 1971).
discussed Cited as authority (rule) Walko Corporation v. Burger Chef Systems, Inc., an Indiana Corporation (2×)
D.C. Cir. · 1977 · confidence medium
Corp., 493 F.2d 1076, 1101 (5th Cir. 1973), cert. denied, 419 U.S. 869 , 95 S.Ct. 127 , 42 L.Ed.2d 107 (1974) (state law applies); and Anderson v. Papillion, supra note 25, 445 F.2d at 842 (same), with Atkins v. Schmutz Mfg.
cited Cited "see" Scharff v. Cameron Offshore Services, Inc.
W.D. La. · 1979 · signal: see · confidence high
See Anderson v. Papillion, 445 F.2d 841 (5th Cir. 1971); Brown v. Texas & Pac.
discussed Cited "see, e.g." Ingram v. Kumar
2d Cir. · 1978 · signal: compare · confidence low
Compare Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160 , 166 n.8 (3d Cir. 1976) and Anderson v. Papillion, 445 F.2d 841 (5th Cir. 1971) with Smith v. Peters, 482 F.2d 799 (6th Cir. 1973), cert. denied, 415 U.S. 989 , 94 S.Ct. 1587 , 39 L.Ed.2d 886 (1974) and Chappell v. Rouch, 448 F.2d 446 (10th Cir. 1971) 3 E. g., we stated at 398 F.2d 606 : Application of Rule 3 definitely will not result in forum-shopping.
discussed Cited "see, e.g." Ingram v. Kumar
2d Cir. · 1978 · signal: compare · confidence low
Compare Witherow v. Firestone Tire & Rubber Co., 530 F.2d 160 , 166 n.8 (3d Cir. 1976) and Anderson v. Papillion, 445 F.2d 841 (5th Cir. 1971) with Smith v. Peters, 482 F.2d 799 (6th Cir. 1973), cert. denied, 415 U.S. 989 , 94 S.Ct. 1587 , 39 L.Ed.2d 886 (1974) and Chappell v. Rouch, 448 F.2d 446 (10th Cir. 1971). .
Retrieving the full opinion text from the archive…
Luther F. ANDERSON, Plaintiff-Appellant,
v.
Joseph PAPILLION Et Al., Defendant-Appellees
71-1295.
Court of Appeals for the Fifth Circuit.
Jul 8, 1971.
445 F.2d 841
1971 U.S. App. LEXIS 9070
Russell T. Tritico, Lake Charles, La., for plaintiff-appellant., A. L. Plauche, Plauche, Sanders, Smith & Hebert, Lake Charles, La., for defendant-appellees.
Coleman, Simpson, Roney.
Cited by 22 opinions  |  Published
PER CURIAM:

This appeal is from the dismissal of a personal injury action as barred by the applicable one year Louisiana prescription statute. [1] We affirm for the reasons summarized below.

Anderson, a citizen of Texas, was injured in an automobile accident in Louisiana. He brought suit in the court below under claimed diversity jurisdiction against Papillion, the driver of the truck, the other vehicle involved in the accident, and his insurer (under an om[*842] nibus clause, not as the named insured which was the owner, Export Cartage, Inc.). It developed from the Marshal’s return of service that the defendant driver had become a citizen of Orange, Texas, at the time suit was filed, almost a year after the accident. The plaintiff Anderson dismissed as to Papillion.

After the one year Louisiana prescription period had run, Anderson sought to amend his complaint under Rule 15(c), F.R.Civ.P. [2] and named as defendants the driver’s employer, Export Cartage, Inc., a Louisiana corporation, (Export), and the insurance carrier, Phoenix Insurance Company, a Connecticut corporation, (Phoenix.) [3]

We are convinced that the “relation back” of amendments under Rule 15(c) has no applicability to this case. The rule simply may not be interpreted so as to deny the protection of a limitations statute to an entirely new defendant, added after the prescription has run. In diversity cases, state statutes of limitation, not the Federal Rules of Civil Procedure, govern the determination of whether actions are brought timely.

“Pure diversity” must exist between plaintiff and all defendants at the time suit is filed to support federal jurisdiction. Strawbridge v. Curtiss, 1806, 3 Cranch 267, 2 L.Ed. 435. Since “pure” diversity did not exist at the time suit was brought, between Anderson, a Texas citizen, and Papillion, also a Texas citizen, the district court [4] had no jurisdiction, and therefore was (as held by the trial judge) an “incompetent court” within the meaning of Louisiana Revised Statutes 9:5801 as the term is defined by the Louisiana courts. Knight v. Louisiana Power and Light Co., La.App.1964, 160 So.2d 832; Con-kling v. Louisiana Power and Light Co., La.App.1964, 166 So.2d 68, and Venterel-la v. Pace, La.App.1966, 180 So.2d 240.

Ragan v. Merchants Transfer and Warehouse Company, 1945, 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520, prohibits a federal court in a diversity case from giving a cause of action a longer life than it would have had in the state court, Rule 3, F.R.Civ.P., providing that a civil action is “commenced by filing a complaint with the court” must yield to a state statute such as L.R.S. 9:5801, because a federal court cannot do more in a diversity case than the state court down the street can do. Anderson would fare no better of course if he had filed his action originally in an incompetent state court.

We think Ragan, then, controls this case. Conceding as we do, that it has its critics, it remains viable. See for instance, the discussion by Chief Judge Lumbard in Sylvestri v. Warner & Swasey Co., 2 Cir. 1968, 398 F.2d 598, of the effect on Ragan of Hanna v. Plumer, 1965, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8:

“ * * * The Supreme Court not only did not specifically state in Hanna that it was overruling Ragan, but[*843] the Court several times cited Eagan by way of distinction. * * * ”

See further, Wright, Law of Federal Courts, 2d Ed., pp. 244, 245, 246.

The judgment of the lower court is Affirmed.

1

. Article 3536 of the Louisiana Civil Code provides:

“The following actions are also prescribed by one year:
“That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi offenses.”
2

. Anderson contends that since his original suit was filed within one year, prescription was interrupted, even though the court below had no jurisdiction because of the inclusion of a non-diverse defendant (later dismissed) and that the subsequent inclusion of another defendant by amended complaint filed more than a year after the accident “relates back” to the date of the original filing under Rule 15(c) of the Federal Rules of Civil Procedure.

3

. It should be noted that for diversity purposes, under the terms of Title 28, U.S.C., Sec. 1332(c), Phoenix was deemed a citizen of Texas when sued directly with Papillion, ns the suit was originally cast, but was deemed a citizen of Louisiana when sued ns the insurer of its direct insured, Export. Phoenix was served through the Louisiana Secretary of State, more than a year after the accident.

4

. Indeed, see footnote 3, under the terms of Title 28, Section 1332(c), Phoenix was also deemed a citizen of Texas, so diversity did not exist between Anderson and either original defendant. Our basis of decision makes it unnecessary to consider the implications of this.