Barlow v. Wal-Mart Stores, Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 18, 2006
Charles R. Fulbruge III
Clerk
No. 06-20078
Summary Calendar
PAT BARLOW
Plaintiff-Appellant,
versus
WAL-MART STORES, INC.; SAM’S CLUB; AND WEIDER NUTRITION GROUP,
Defendants-Appellees.
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Appeal From the United States District Court
for the Southern District of Texas
4:05-CR-1221
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
The plaintiff, Pat Barlow, sued the defendants claiming that
she had an allergic reaction to glucosamine chondroitin, an
ingredient in a product manufactured by Weider and sold to her at
a Sam’s Club. The district court dismissed the case on summary
judgment, holding that the defendants had been served outside the
limitations period and that the plaintiff had not exercised the
required diligence in obtaining service. See Zale Corp. v.
Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975). We review de novo.
Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988).
*
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this opinion should not be published and is not precedent except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.
No. 06-20078
-2-
In Texas, “[t]he mere filing of a petition will not toll the
running of a statute of limitation; to interrupt the statute, the
plaintiff must exercise due diligence in procuring the issuance and
service of citation upon the defendant.” Perry v. Kroger Stores
Store No. 119, 741 S.W.2d 533, 534 (Tex. App. – Dallas 1987). “The
existence of diligence is usually a question of fact, but if no
excuse is offered for a delay in procuring service of citation, or
if the lapse of time and the plaintiff’s acts are such as
conclusively negate diligence, a lack of diligence will be found as
a matter of law.” Id. Here, the district court found that the
plaintiff: (1) filed just before the limitations period expired,
(2) did nothing for one month after filling suit, (3) waited an
additional month after requesting and receiving summons from the
clerk to request an extension, which was granted, and (4) waited
two weeks after the extension deadline to finally serve the
defendants. The plaintiff offered no explanations other than that
“family reasons” had prevented her from paying fees of thirty-three
dollars necessary to obtain a process server. On the facts found by
the district court, it did not err in holding that the plaintiff
served the defendants outside the limitations period and without
diligence. We therefore AFFIRM.