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*Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________
No. 92-8648
(Summary Calendar)
_____________________________
GENE EVERETT d/b/a
5 Star Diesel Repair, ET AL., Plaintiffs-Appellees,
versus
AMERICAN CENTRAL GAS COMPANIES,
INC. ET AL., Defendants-Appellants.
_________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(MO-92-CA-064)
_________________________________________________
June 9, 1993
BEFORE KING, DAVIS, and WIENER, Circuit Judges.
PER CURIAM:*
In this negligence suit, Defendants-Appellants American
Central Gas Companies, Inc. and Tristar (collectively "Gas
Companies") appeal the adverse judgment, contending that the Texas
statute of limitations barred the claim. The district court denied
the Gas Companies' motions for summary judgment, judgment as a
matter of law, renewed judgment after trial, and new trial. After

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2
reviewing the application of the Texas statute of limitations de
novo, we conclude that a sixteen month delay in obtaining service
of process without a legally sufficient explanation demonstrates
nondiligence as a matter of law.
I
FACTS AND PROCEEDINGS
On September 19, 1989, Plaintiff-Appellee Gene Everett's
business premises, 5 Star Diesel Repair, were destroyed by an
explosion, which he blamed on the negligent operation and
maintenance of the Gas Companies' nearby gas gathering systems.
Consequently, Everett (through his attorney) sent a demand letter
to the Gas Companies on April 10, 1990. The Gas Companies
responded that there was no factual basis for a negligence claim
because the Texas Railroad Commission had issued a letter
indicating that a leaking propane tankSQand not the gas gathering
operationsSQhad caused the explosion. In August, Everett forwarded
additional information about his claim to the Gas Companies, which
did not respond.
On November 12, 1990, Everett again contacted the Gas
Companies, sending letters to American Central and Tristar
containing the following statement:
Please advise if you will accept service and file a
response on behalf of your client . . . . If I do not
hear from you within ten days, I will assume that your
client will not allow you to do so and will proceed to
have a citation served on it.
In the letter to Tristar, Everett also stated: "Since I have not
heard from you after my last letter with its enclosures, I was

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3
compelled to file suit." This was not correct, however, as Everett
did not actually file suit until one week later, on November 19.
After filing his complaint, Everett did not attempt to serve
process on the Gas Companies. Neither did he provide additional
notice to the Gas Companies that the pleading had been filed.
On March 24, 1992, following sixteen months of inactivity,
Everett requested service of process. Service was finally
effectuated on March 30. As explanation for this lengthy period of
inaction, Everett's attorney said that he had failed to notice that
the Gas Companies had not filed answers during that time. His
self-described "mistake" was due to his attention to other business
and family matters and his incorrect belief that the Gas Companies
would accept service and no service of citation would be necessary.
The Gas Companies filed a joint answer on April 16, 1992,
removing the case to federal court based on diversity. They then
moved for summary judgment, alleging that Everett had failed to use
due diligence in attempting to procure service of process. The
district court denied the motion, and the case proceeded to trial.
The Gas Companies moved for judgments as a matter of law at the
close of Everett's case-in-chief and at the close of its case, both
of which motions were denied. After the jury returned a verdict in
favor of Everett, the Gas Companies renewed their motion for
judgment after trial, and, when that was denied, filed a motion for
new trial, which was likewise rejected. The Gas Companies timely
appealed.

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1 Wells v. Hico Independent Sch. Dist., 736 F.2d 243, 251
n.9 (5th Cir. 1984). The standard of review presented in both
briefs is, in fact, the standard for review of a grant of summary
judgment.
2 Argubright v. Beech Aircraft Corp., 868 F.2d 764, 766 (5th
Cir. 1989)(quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th
Cir. 1969)(en banc)).
3 Lubbock Feed Lots, Inc. v. Iowa Beef Processors Inc., 630
F.2d 250, 269 (5th Cir. 1980).
4
II
ANALYSIS
A. Standard of Review
Both sides present the standards of review for each decision
of the district courtSQthe denial of summary judgment, the denial
of the motions for judgment as a matter of law, the denial of the
renewed motion for judgment after trial, and the denial of the
motion for new trial, suggesting that this court should review each
decision accordingly. We note, however, that we do not review the
denial of a motion for summary judgment.1 The denial of motions
for judgment as a matter of law and judgment after trial are
reviewed de novo. These motions should be granted "only if the
nonmoving party has failed to present `substantial evidence . . .
of such quality and weight that reasonable and fair-minded
[persons] in the exercise of impartial judgment might reach
different conclusions.'"2 A motion for a new trial is reviewed for
abuse of discretion.3
More importantly, at issue in the instant case is the
interpretation of Texas law governing statutes of limitation. In
reviewing a district court's interpretation of state law, we accord

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4 Salve Regina College v. Russell, 111 S.Ct. 1217, 1221
(1991).
5 TEX. CIV. PRAC. & REM. CODE ANN. §16.003(a).
6 786 S.W.2d 259 (Tex. 1990)(emphasis added).
7 Id. at 260.
8 Id.
9 Id. at 259.
5
no deference, but review the decision de novo.4
B. Due Diligence
Texas lawSQthe law which governs this caseSQimposes a two year
statute of limitations, accruing from the moment of injury, on
suits for property damage.5 The Texas Supreme Court has construed
the applicable statute in Gant v. Deleon:6
To "bring suit" within the two-year limitations
period prescribed by section 16.003, a plaintiff must not
only file suit within the applicable limitations period,
but must also use diligence to have the defendant served
with process.7
In other words, for a suit to be deemed timely filed, there are two
requirements: (1) the suit must be filed within that time period
specified in the statute of limitation; and (2) diligent efforts to
accomplish service of process must be instituted and prosecuted.
Service of process accomplished as a result of diligent efforts
relates back to the filing date even if that service is not
effectuated until after the statutory limit has expired.8 If, on
the other hand, service occurs after the running of the statutory
period without there having been duly diligent efforts to serve
legal process, the claim is time barred.9

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10 Ellis v. Great Southwestern Corp., 646 F.2d 1099, 1113
(5th Cir. 1981).
11 Id. at 1114.
12 Id.
6
Although whether efforts to achieve service were diligent is
normally a question of fact to be judged under a reasonably prudent
person standard,10 one line of cases does establish "that an
unexplained delay of as little as six months demonstrates as a
matter of law that the plaintiff lacked diligence in obtaining the
issuance and service of process." A valid "explanation" is "an
excuse offered that if proved would negate the inference of
nondiligence."11
Here, the delay was sixteen monthsSQwell in excess of the
minimum six months held in other cases to demonstrate, as a matter
of law, a lack of diligence. Everett's attorney insists, however,
that he has explained the delay so that this line of cases is
inapposite. To reiterate, his explanation was that (1) he was busy
with other business and (2) he believed that the defendants would
accept service even though they did not respond to his letters (in
which, we note, he stated that if no response was forthcoming he
would assume that they would not accept process).
Although these are attempted explanations, they obviously do
not rise to the level of "excuse[s] . . . that if proved would
negate the inference of nondiligence."12 Counsel's first
assertionSQthat he was busy with other cases and family businessSQis
tantamount to an admission of nondiligence. A lawyer's inattention

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13 Ferguson v. Estes & Alexander, 214 S.W. 465, 467 (Tex.
Civ. AppSQEl Paso 1919, no writ).
14 Sanchez v. Providence Memorial Hosp., 679 S.W.2d 732,
732-33 (Tex. App.SQEl Paso 1984, no writ).
7
does not toll the statute of limitations.13 Counsel's second
assertionSQthat he believed the Gas Companies would accept
serviceSQsimply cannot be squared with his own letter to the Gas
Companies, which informed them that if they did not respond Everett
would assume that they would not accept service. Counsel for
Everett does not explain how, given the lack of response, he could
have believed that the Gas Companies would accept service. In any
event, a lawyer's failure to keep abreast of the proceedings in a
lawsuit that he filed constitutes nondiligence.14
Everett argues that due diligence is not an issue; rather,
that the main issues are whether (1) the defendant had actual
notice; (2) the defendant suffered any harm; and (3) the purposes
of the statute of limitations have been met. Despite his failure
to comply with a clear procedural requirement, Everett urges that
his failure to follow the rule does not matter because the Gas
Companies were not prejudiced by his mistake. In its simplest
terms, Everett's argument isSQ"no harm, no foul." If taken to its
logical conclusionSQor, more appropriately, reduced to its
absurditySQthe statute of limitations would be eviscerated, only to
be replaced with a case by case analysis of actual notice and harm.
If this is the law anywhere, it certainly is not the law of Texas.
Consequently, the district court erred in its interpretation
of Texas law. Cases construing the Texas statute of limitations

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8
provision hold that in the absence of a legally acceptable reason
a delay of six months or more in seeking service is nondiligent as
a matter of law; and only due diligence to accomplish service can
excuse service of process after the statute of limitation has run.
Everett did not institute efforts to make service until more than
a year after the statute of limitations had run, and even then
provided no explanations for the delay which, if proved, would
defeat the inference of nondiligence. His claim, therefore, is
barred as a matter of law.
For the foregoing reasons, the district court's opinion is
REVERSED and Everett's action against the Gas Companies is
DISMISSED.

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