The U.S. 5th Circuit Court of Appeals has asked the Texas Supreme Court for help in construing the so-called “jurisdiction-saving” provision that temporarily tolls the statute of limitations for a case dismissed due to lack of jurisdiction.
Lee Marvin Sanders; Matthew Sodrok v. The Boeing Company; Kiddie Technologies, Incorporated; Jamco American, Incorporated (No. 22-20317; No. 23-0388; filed May 27, 2023, accepted June 2, 2023) arose from a personal injury action brought by two United Airlines flight attendants against Boeing and the manufacturers of a smoke alarm that malfunctioned during flight and caused severe damage to plaintiffs’ hearing. The flight attendants filed suit in a Houston federal district court in late 2018 but quickly voluntarily dismissed the suit. They proceeded to file in a Dallas federal district court, eventually settling on suing Boeing, which built the plane, and the two product manufacturers. Defendants moved to dismiss, asserting that plaintiffs’ pleadings failed to allege facts sufficient to establish diversity jurisdiction. The court ordered plaintiffs to refile their complaint and explained exactly how to do it in order to demonstrate jurisdiction. For some reason, plaintiffs didn’t follow through, leading the district court sua sponte to dismiss the complaint for lack of jurisdiction. The 5th Circuit affirmed.
Plaintiffs then turned to a state district court in Harris County. Defendants sought removal on diversity grounds and moved to dismiss based on limitations. Plaintiffs countered by citing § 16.064, CPRC, which temporarily suspends an action for the period between the date of filing in a trial court and the date of a second filing of the same action in another court if: (1) the trial court where the action was first filed dismissed the action for lack of jurisdiction (or set aside or annulled a judgment in a direct proceeding); and (2) the second action is filed not later than the 60th day after the dismissal or other disposition becomes final in a court of proper jurisdiction. Plaintiffs claim that the statute applies because their prior case was dismissed for lack of jurisdiction and that they filed the new action within 60 days after the 5th Circuit affirmed the district court’s judgment and denied their petition for rehearing. The district court, however, rejected this argument and dismissed the case, citing a non-precedential case, Agenbroad v. McEntire, 595 F. Appx. 383, 387 (5th Cir. 2014), for the proposition that “the savings statute applies only where the plaintiff files the previous action in the ‘wrong court.’” As the Court pointed out, however, plaintiffs filed the prior suit in the right court but failed to properly invoke the jurisdiction of that court.
On review a second time, the 5th Circuit determined that the Texas Supreme Court has never addressed the application of § 16.064 to the facts of this case. Determining that the proper interpretation of the statute was a matter of significant importance to Texas law, that the substantial level of disagreement among federal district courts and Texas intermediate appellate courts required a “consistent approach to the savings statute,” and that there were no practical reasons inhibiting the 5th Circuit from certifying questions to SCOTX, the Court requested responses to two questions: (1) whether § 16.064 applies to the present lawsuit “where [p]laintiffs could have invoked the prior district court’s subject matter jurisdiction with proper pleading,”; and (2) whether plaintiffs filed the present lawsuit within 60 days of the prior judgment became “final” for purposes of the statute.
The 5th Circuit sent the case to SCOTX because it did not feel able to make an Erie guess, and we will refrain from speculating about what SCOTX might say. It appears problematic to us, nevertheless, that a federal court gave plaintiffs specific instructions about repleading the case to invoke the court’s jurisdiction, which they clearly could have done, especially given the fact that defendants subsequently sought to remove the state court lawsuit on diversity grounds. That they did not replead is troubling to say the least, but we recognize that § 16.064 says what it says and does not make this distinction. As to the “finality” of the judgment, federal district courts and Texas courts of appeals are all over the place, while SCOTX has previously stated that “Texas courts ‘assess a judgment’s finality differently, depending upon the context” (citing Long v. Castle Texas Prod. LP, 426 S.W.3d 73, 78 (Tex. 2014). We are very curious to see how SCOTX will come down on these questions. They recur pretty frequently, and a definitive opinion will certainly advance the ball.
