Curry v. Valentin ( 2023 )

Case: 22-20450 Document: 00516628866 Page: 1 Date Filed: 01/31/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-20450 FILED
Summary Calendar January 31, 2023
Lyle W. Cayce
Clerk
Marqueta Curry; Shaheedah Ellis,
Plaintiffs—Appellants,
versus
Anthony Valentin; VIP Freight, Incorporated,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CV-2800
Before Davis, Smith, and Douglas, Circuit Judges.
Per Curiam:*
Plaintiffs-Appellants, Marqueta Curry and Shaheedah Ellis, appeal
the district court’s summary judgment in favor of Defendants-Appellees,
Anthony Valentin and VIP Freight, Inc., dismissing this action as barred by
Texas’s two-year statute of limitations. For the reasons set forth below, we
AFFIRM.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-20450
I.
On July 10, 2019, Plaintiffs were involved in an automobile accident
while driving on Interstate Highway 10 in Houston, Texas. Plaintiffs allege
that Defendant Anthony Valentin, while operating a commercial truck in the
course and scope of his employment with Defendant VIP Freight, Inc.,
negligently entered Plaintiffs’ lane of traffic causing a collision. On July 30,
2021, two years and twenty days after the accident, Plaintiffs filed suit in state
court to recover for their alleged damages. Defendants filed an answer,
raising the statute of limitations as an affirmative defense.1 Defendants then
removed the case to federal court on the basis of diversity jurisdiction.
Plaintiffs thereafter moved for partial summary judgment on
Defendants’ statute of limitations defense. Plaintiffs argued that although
they filed their suit more than two years after the accident occurred, their
filing was timely under the Emergency Orders issued by the Texas Supreme
Court in response to the COVID-19 pandemic. Specifically, Plaintiffs argued
that certain Emergency Orders “create[d] a continuous chain of extensions
from March 13, 2020 through October 1, 2021.”
Defendants responded by filing a cross-motion for summary judgment
and an alternative motion for dismissal under Rule 12(b)(6) for failure to state
a claim. They argued that Plaintiffs’ action was time barred because,
contrary to Plaintiffs’ contentions, none of the Emergency Orders issued by
the Texas Supreme Court applied to extend the statute of limitations in this
case. Defendants contended that the applicable two-year statute of
1
Under Texas law, “a person must bring suit for . . . personal injury . . . not later
than two years after the day the cause of action accrues.” Tex. Civ. Prac. & Rem.
Code § 16.003(a).
2
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limitations expired on July 12, 2021;2 therefore, Plaintiffs’ lawsuit was time
barred because it was not filed until July 30, 2021. In response, Plaintiffs
specifically relied on Emergency Order Eight, and argued that it tolled all
statutes of limitations for eighty days, from March 13, 2020, until June 1,
2020. Plaintiffs contended that an eighty-day extension of time was more
than sufficient to make their action timely.
The magistrate judge reviewed the pertinent Emergency Orders
issued by the Texas Supreme Court relating to the COVID-19 pandemic and
determined that the orders “did not categorically suspend all statutes of
limitations for an eighty-day period.” Furthermore, the magistrate judge
determined “that Emergency Order Twelve supersede[d] any claimed,
blanket tolling of limitations in Emergency Order Eight.” The magistrate
judge recommended that Defendants’ motion for summary judgment be
granted. Overruling the Plaintiffs’ objections, the district court adopted the
magistrate judge’s report and recommendation and dismissed Plaintiffs’ suit
as time-barred. Plaintiffs timely filed a notice of appeal.
II.
This Court reviews the district court’s summary judgment de novo.3
Summary judgment is proper “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”4 As this is a diversity case in which the cause of action arises
under state law, we apply the state statute of limitations.5 Under Texas law,
2
Because July 10, 2021, was a Saturday, Plaintiffs had until the next business day,
Monday, July 12, 2021, to file their action under the two-year limitations period.
3
Camacho v. Ford Motor Co., 993 F.3d 308, 311 (5th Cir. 2021).
4
Fed. R. Civ. P. 56(a).
5
Texas Soil Recycling, Inc. v. Intercargo Ins. Co., 273 F.3d 644, 649 (5th Cir. 2001).
3
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suits for personal injury must be filed “not later than two years after the day
the cause of action accrues.”6 It is undisputed that Plaintiffs’ cause of action
accrued on the day of the accident, July 10, 2019. It is also undisputed that
under a straightforward application of Texas’s two-year statute of
limitations, Plaintiffs needed to file their action by Monday, July 12, 2021.
A.
On appeal, Plaintiffs reassert their argument that the Eighth
Emergency Order issued by the Texas Supreme Court tolled the limitations
period in this case for eighty days, such that their action, which was filed on
July 30, 2021, was timely.
The Eighth Emergency Order issued by the Texas Supreme Court on
April 1, 2020, relating to the COVID-19 pandemic provides in pertinent part:
“Any deadline for the filing or service of any civil case is tolled from March
13, 2020, until June 1, 2020, unless extended by the Chief Justice of the
Supreme Court.”7 On April 27, 2020, the Texas Supreme Court issued the
Twelfth Emergency Order which “renewed as clarified and amended” several
prior Emergency Orders, including the Eighth Emergency Order.8
Specifically, the Twelfth Emergency Order provided: “Any deadline for the
filing or service of any civil case that falls on a day between March 13, 2020,
and June 1, 2020, is extended until July 15, 2020.”9 Under its plain language,
the Twelfth Emergency Order made clear that the deadlines subject to
extension under the Eighth Emergency Order were those that fell between
6
Tex. Civ. Prac. & Rem. Code § 16.003(a).
7
597 S.W.3d 844 (Tex. 2020).
8
629 S.W.3d 144 (Tex. 2020) (emphasis added).
9
Id.4
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March 13, 2020, and June 1, 2020, and that those deadlines would be
extended to July 15, 2020.
Plaintiffs’ tolling argument ignores the clear language of the Twelfth
Emergency Order which, as the district court herein observed, “distinctly
identified” the time frame of the deadlines affected and the date to which
those deadlines would be extended. As this Court recently noted, the
Emergency Orders issued by the Texas Supreme Court relating to the
COVID-19 pandemic are applicable to “only certain cases.”10
The last Emergency Order to extend the deadline for the filing of civil
cases, the Twenty-First Emergency Order, provides that “[a]ny deadline for
the filing or service of any civil case that falls on a day between March 13,
2020, and September 1, 2020, is extended until September 15, 2020.”11
Because the filing deadline for Plaintiffs’ action did not fall between
March 13, 2020, and September 1, 2020, the two-year statute of limitations
was not subject to extension. Therefore, Plaintiffs were required to file their
action by July 12, 2021, which they did not do. Consequently, as the
magistrate judge and district court concluded, Plaintiffs’ action is time-
barred.
B.
Plaintiffs lastly argue that the district court should have exercised its
discretion under the Fortieth Emergency Order issued by the Texas Supreme
10
Phillips v. Cero’s L.L.C., No. 22-10617, 2022 WL 16956798, at *2 (5th Cir. Nov.
16, 2022) (per curiam) (unpublished). Unpublished opinions issued in or after 1996 are
“not controlling precedent” except in limited circumstances, but they “may be persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006).
11
609 S.W.3d 128 (Tex. 2020).
5
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Court.12 That order provides that “all courts in Texas may in any case, civil
or criminal, . . . modify or suspend any and all deadlines and procedures,
whether prescribed by statute, rule, or order, for a stated period ending no
later than October 1, 2021.”13 Plaintiffs argue that the district court abused
its discretion because it required Plaintiffs to produce evidence as a
precondition to the court’s exercise of its discretion under the Fortieth
Emergency Order.
As the magistrate judge noted, Plaintiffs “articulated no reason why
such an extension would be appropriate” in their case. In their objections to
the magistrate judge’s report, Plaintiffs argued that the Fortieth Emergency
Order gave courts “broad discretion to modify or suspend deadlines.”
Plaintiffs also contended for the first time in their objections that because
“[t]his case was filed during the heart of the COVID crisis” and “no more
than twenty-one days after the two-year anniversary of the collision,” the
district court should exercise its discretion. The district court overruled
Plaintiffs’ objections, and declined to exercise its discretion.
Under these circumstances, there was no abuse of discretion.
Plaintiffs offered reasons that any party could have offered for an untimely
filing during the pandemic. Based on the foregoing, the district court’s
judgment is AFFIRMED.
12
629 S.W.3d 911 (Tex. 2021).
13
Id. (emphasis added).
6