Ritter, et al v. Intl Lngshrmn Assoc

*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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
` IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20630
Summary Calendar
JOHN M. RITTER; ROXANNA H. RITTER,
Plaintiffs-Appellants,
versus
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, No. 28;
MARITIME ASSOCIATIONS ILA RETIREMENT WELFARE AND
VACATION FUND,
Defendants-Appellees.
__________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CV-446
__________________________________________
July 24, 2001
Before POLITZ, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
John M. Ritter and Roxanna H. Ritter (hereafter “Ritter”) appeal the district
court’s order granting the International Longshoremen’s Association, No. 28's
motion to dismiss for failure to state a claim or, in the alternative, for summary
judgment. Ritter also appeals the denial of a motion for reconsideration, contending
that the trial court erred in determining that the state-law negligence claim was

-- 1 of 3 --

1 Topalian v. Ehrman, 954 F.2d 1125 (5th Cir. 1992)
2Kollar v. United Transp. Union, 83 F.3d 124 (5th Cir. 1996); Richter v. Merchants Fast
Motor Lines, Inc., 83 F.3d 96 (5th Cir. 1996).
3Thomas v. LTV Corp., 39 F.3d 611 (5th Cir. 1994).
4Linkous v. United States, 142 F.3d 271 (5th Cir. 1998).
5Russell v. Board of Trustees of the Firemen, Policemen and Fire Alarm Operators’
Pension Fund of Dallas, Texas, 968 F.2d 489 (5th Cir. 1992); Chrisman v. Odeco, Inc., 932 F.2d
2
preempted by the Labor Management Relations Act. Ritter also contends that the
court erred in denying their claims for equitable estoppel and equitable tolling of the
statute of limitations. The district court applied the summary judgment standard in
granting the Union’s motion; we therefore apply the de novo summary judgment
standard of review.1
Because the underlying issue in the negligence claim before us is seniority,
and because a claim for negligence requires the determination of the legal question
of duty, adjudication of this action is dependent upon an interpretation of the
Union’s collective-bargaining agreement.2 As a consequence, this claim is
preempted by the LMRA.3
Ritter advances no evidence that the Union made false representations or
concealed material information with the intent to cause substantial harm.
Accordingly, there is a failure to establish a claim for equitable estoppel of the
statute of limitations.4
Because the claim advanced stems from the single act of being omitted from
the Union’s seniority roster, the “continuing tort” theory urged for equitable tolling
of the statute of limitations is rejected.5 Even if the statute of limitations were

-- 2 of 3 --

413 (5th Cir. 1991).
6Jones v. Central Bank, 161 F.3d 311 (5th Cir. 1998).
3
tolled, however, the claim presented would still be time-barred because Ritter failed
to file suit timely after receiving notice that the Union would not honor the claim.
Ritter does not identify a genuine issue as to any material fact. In addition,
there is no demonstration that the district court abused its discretion in denying the
motion for reconsideration.6
The judgment appealed is AFFIRMED.

-- 3 of 3 --