Drury v. Jim Smith Contr Co

United States Court of Appeals
Fifth Circuit
F I L E D
February 12, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 03-30161
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EDWARD R DRURY,
Plaintiff - Appellant,
versus
UNITED STATES ARMY CORPS OF ENGINEERS; ET AL,
Defendants,
JIM SMITH CONTRACTING COMPANY INC,
Defendant - Appellee.
Appeal from the United States District Court
For the Eastern District of Louisiana
Before JONES, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:
Appellant, Edward R. Drury (“Drury”), appeals the district court’s summary judgment
dismissal of his state tort and 42 U.S.C. § 1983 claims against Appellee, Jim Smith Contracting Co.
(“Smith”). The district court concluded Drury’s claims were time-barred. LA. REV. STAT. ANN. §
9:5624 (“When private property is damaged for public purposes any and all actions for such damages

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1Both the state tort claims and the § 1983 claim are governed by state prescription law. See Braden v. Texas
A&M Univ. Sys., 636 F.2d 90, 92 (5th Cir. 1981) ( Section 1983 has no statute of limitations period, thus federal courts
apply the state prescription statute governing most analogous cause of action). If Drury’s state claim is time-barred,
his federal claim is also time-barred.
2Under Louisiana law, when solidary liability exists between two or more parties, “[i]nterruption of
prescription against one joint tortfeasor is effective against all joint tortfeasors.” LA. CIV. CODE art. 2324(C).
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are prescribed by the prescription of two years, which shall begin to run after the completion and
acceptance of the public works.”). We review a district court’s grant of summary judgment de novo.
Travelers Cas. & Sur. Co. of Am. v. Baptist Health Sys., 313 F.3d 295, 297 (5th Cir.2002).1
Drury alleges that Smith’s work on behalf of the United States Army Corps of Engineers
(“United States”) damaged Drury’s property. On May 22, 1995, Drury filed suit against the United
States under the Federal Tort Claims Act (“FTCA”). 28 U.S.C. § 2671 et seq. On March 7, 1996,
Drury amended his complaint to include state and federal claims against Smith. The district court
concluded the two-year statute of limitations accrued on April 4, 1993, the latest date by which Smith
was off Drury’s land. See § 9:5624 (requiring Drury to file claims within two years). Both the
original FTCA claim and the amended claim were filed more than two years after the prescriptive
period had run. Drury argues his mandatory FTCA administrative claim, which was filed on May,
15, 1994, interrupted prescription regarding the third party tort claims against Smith.
Louisiana law allows interruption of prescription when actions are commenced “in a court of
competent jurisdiction and venue.” LA. CIV. CODE art. 3462 (“article 3462”). Interruption is also
appropriate “when one acknowledges the right of the person against whom he had commenced to
prescribe.” LA. CIV. CODE art. 3464 (“article 3464”). In this case, Drury argues only that the filing
of an FTCA administrative claim constitutes a suit in a court of competent jurisdiction under article
3462.2

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Drury urges this Court to extend the reach of article 3462 to include federally required
administrative claims. Drury contends that workers’ compensation cases support this result. See
Andrews v. Strauss, 2002 WL 31375610 at *4 (E.D. La. Oct. 18, 2002) (holding that federal
workers’ compensation claims interrupt prescription period for tort claims against third parties);
Murry v. Aran Energy Corp., 1995 WL 510083 at *2 (E.D. La. Aug. 24, 1995) (same); Scott v.
Sears, Roebuck and Co., 778 So.2d 50 (La. Ct. App. 1st Cir. 2000) (filing of state workers’
compensation claim equivalent of suit under article 3462); Gray v. Mounir, 746 So.2d 746, 749 (La.
Ct. App. 3d Cir. 1999) (same).
On the other hand, prior cases hold that federal administrative claims filed with the Equal
Opportunity Employment Commission (EEOC), as required by Title VII, 42 U.S.C. § 2000e-5(f),
do not interrupt prescription for state law claims. See Taylor v. Bunge Corp., 775 F.2d 617, 618-19
(5th Cir. 1985); Fussell v. Bellsouth Communications, Inc., 1998 WL 12229 at *2 (E.D. La. Jan. 8,
1998) (“The Fifth Circuit has clearly stated that the filing of an EEOC charge does not toll, interrupt,
or suspend prescription with regard to a plaintiff’s state law claims.”); Roth v. N.J. Malin & Assoc.,
1998 WL 898367 at *5 (E.D. La. Dec. 21, 1998) (“[T]he case law . . . has consistently held that the
filing of an EEOC charge does not toll, interrupt, or suspend prescription with regard to a plaintiff’s
state law claims.”) (internal quotations omitted); Brouillette v. Transamerican Refining Corp., 1995
WL 683869 at * 4 (E.D. La. Nov. 11, 1995) (“Plaintiff’s federal and state law claims are not
embodied in the same legislative scheme . . . . Consequently, plaintiff’s filing of administrative
proceedings did not operate to toll or suspend t he prescriptive period on plaintiff’s state law
claims.”); Weathersby v. Jacquet, 813 So.2d 1135, 1140 (La. Ct. App. 3d Cir. 2002) (“Neither do
we find merit in any assertion that a claim under federal law would in any way interrupt state law

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prescriptive periods.”). In addition, we have previously questioned whether an administrative claim
can toll a state prescription period. See Fitzgerald v. Secretary U.S. Dep’t of Vet. Affairs, 121 F.3d
203, 210 (5th Cir. 1997) (“Fitzgerald points to no authority for the proposition that the filing of an
administrative complaint against the Secretary interrupts the prescription period.”).
No precedent or statute establishes that Drury’s federal FTCA claim against the United States
interrupts prescription of the state tort claims against Smith. We conclude that Drury’s FTCA claim
did not toll prescription of his third party state tort claim against Smith. Cf. Taylor, 775 F.2d at 618-
19. Accordingly, Drury’s claims against Smith were filed in excess of the two-year prescription
period and are time-barred. We AFFIRM the district court.

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