Sylvia Gone' v. J. Smith, II

Case: 18-20373 Document: 00515207742 Page: 1 Date Filed: 11/20/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 18-20373 November 20, 2019

Lyle W. Cayce

Clerk

SYLVIA HERNANDEZ, as Administratrix and on behalf of the Estate of

Sylvia Goné, deceased; ESMERELDA ALEJANDRO,

Plaintiffs-Appellants,

v.

J. E. SMITH, II; OFFICER SALAZAR; OFFICER THORNTON; CITY OF

PASADENA,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:16-CV-684

Before SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.

PER CURIAM:*

A police officer named J.E. Smith II witnessed Sylvia Goné make an

illegal U-turn. The officer attempted to give her a ticket. The situation

escalated, and eventually Officer Smith tasered Goné. When backup arrived,

the officers arrested Goné and her passenger, Esmeralda Alejandro. Plaintiffs’

counsel attempted to file a § 1983 suit based on this incident but committed

* 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.

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No. 18-20373

numerous litigation missteps along the way—including naming the wrong

plaintiff, filing too late, and failing to respond to requests for admission. The

district court granted summary judgment to the Defendants. We affirm.

I.

On April 19, 2014, Sylvia Goné was driving in Pasadena, Texas.

Esmerelda Alejandro was sitting in the passenger seat. Goné made an illegal

U-turn. Officer Smith saw it, followed Goné to a gas station, and got out of his

police cruiser. He asked Goné for her driver’s license and proof of insurance.

Goné appeared at first to ignore him, then refused his request. Goné hurriedly

got back into her car, tried to shut the car door while Officer Smith was

standing in front of it, and thrashed at Officer Smith when he tried to pull her

out of the car. Alejandro yelled at Officer Smith while recording part of the

incident on her cell phone. Even though Officer Smith told Alejandro to stay

away, Alejandro reached for an object from Goné while Officer Smith was

trying to arrest Goné. Eventually Officer Smith tasered Goné. Officers Juan

Salazar and Richard Thornton arrived as backup. Together, the three officers

arrested Goné and Alejandro. The entire incident was recorded on Officer

Smith’s dashcam video, and portions of the incident were recorded on

Alejandro’s cell phone camera. See Scott v. Harris, 550 U.S. 372, 378–81 (2007)

(instructing courts to view the facts in light of such video footage).

On March 14, 2016, Plaintiffs’ counsel filed a complaint under 42 U.S.C.

§ 1983 against the City of Pasadena and Officers Smith, Salazar, and

Thornton. The complaint named as Plaintiffs both Goné and Alejandro—

notwithstanding the fact that Goné died in an unrelated car accident

approximately seven months before the complaint was filed.

On March 14, 2017, the district court partially granted Defendants’

motion to dismiss. It dismissed the bulk of Plaintiffs’ claims. But it allowed

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claims to proceed against: (1) Officer Smith for using excessive force on Goné;

and (2) all three officers for unlawfully arresting Alejandro.

On December 10, 2017, Plaintiffs’ counsel amended the complaint to

properly assert survival claims by Sylvia Hernandez on behalf of Goné’s estate.

The district court, however, granted Defendants’ motion for summary

judgment. It held (1) the estate’s survival claim was untimely, and (2) the

failure of Plaintiffs’ counsel to respond to requests for admission doomed

Alejandro’s claim.

II.

We start with the statute of limitations for the survival claim brought by

Goné’s estate. Section 1983 does not contain a limitations period. So we turn

to the “appropriate” state statute of limitations. King-White v. Humble Indep.

Sch. Dist., 803 F.3d 754, 759 (5th Cir. 2015). It is undisputed that the

appropriate statute provides a two-year limitations period for personal-injury

claims. See TEX. CIV. PRAC. & REM. CODE § 16.003(a). That limitations period

is suspended for one year upon a person’s death. Id. § 16.062(a). We also look

to Texas law to determine who has standing to bring a survival action within

the limitations period. Pluet v. Frasier, 355 F.3d 381, 383–84 (5th Cir. 2004).

Goné’s claim accrued on April 19, 2014, the date of the incident. See King-

White, 803 F.3d at 762. Goné died on August 2, 2015. At that point, Goné had

used 470 days of the two-year limitations period. So 260 days remained upon

her death. Her death suspended the limitations period for one year. See TEX.

CIV. PRAC. & REM. CODE § 16.062(a). One year from Goné’s death was August

2, 2016. Adding the 260 remaining days yielded a new deadline of April 19,

2017.

Plaintiffs’ counsel did not properly add a survival claim until December

11, 2017—almost eight months too late. On that date, counsel filed an amended

complaint. It included a survival claim by Sylvia Hernandez, who allegedly

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sued “as the administratix [sic] as ordered in Probate Court No. 1 on behalf of

the estate of Sylvia Gone’ [sic], decedent.” Plaintiffs’ Second Amended Original

Complaint ¶ 1. Hernandez’s claim therefore is time-barred unless she can point

to some exception to the limitations period.

The cases and rules cited by the parties discuss four possible exceptions.

Some sound in Texas law, while others sound in the Federal Rules of Civil

Procedure. The Supreme Court has recognized that when a Federal Rule of

Civil Procedure conflicts with state law, the federal rule controls. See Shady

Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010);

Hanna v. Plumer, 380 U.S. 460 (1965). We need not decide whether such a

conflict exists here because neither state law nor federal law rescues

Hernandez’s claims.

First, Hernandez cannot benefit from the so-called Lovato-Lorentz

exception. In a pair of cases decided on the same day, the Supreme Court of

Texas held a plaintiff timely sued on behalf of the estate by filing before the

end of the limitations period—even though the plaintiff gained capacity to

represent the estate only after limitations ran. See Austin Nursing Ctr., Inc. v.

Lovato, 171 S.W.3d 845, 852–53 (Tex. 2005); Lorentz v. Dunn, 171 S.W.3d 854,

856 (Tex. 2005). Here, however, Hernandez did not sue on behalf of Goné’s

estate before the limitations ran.

Second, Hernandez cannot rely on Texas cases allowing a plaintiff to

change her capacity after filing suit. See, e.g., Lovato, 171 S.W.3d at 852

(compiling cases); Davis v. Preston, 16 S.W.2d 117, 117–18 (Tex. 1929); Pope v.

Kansas City, M. & O. Ry. Co. of Tex., 207 S.W. 514, 515 (Tex. 1918). Under this

change-of-capacity exception, the statute of limitations will not bar a claim

when a plaintiff timely files a complaint in “her individual capacity” but

changes the suit “to her representative capacity as administrator of an estate”

after the limitations period has expired. Flores v. Cameron Cty., 92 F.3d 258,

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273 (5th Cir. 1996). But for this exception to apply, the relevant plaintiff (here,

Hernandez) must sue before the limitations period expired. Ibid.

For example, in Covington v. Sisters of Charity of Incarnate Word, 179

S.W.3d 583 (Tex. App.—Amarillo 2005, pet. denied), the decedent’s sister filed

a lawsuit “individually and on behalf of her deceased brother.” Id. at 587. But

she made no contention that she “was the personal representative of [her

brother’s] estate” or “that she ever . . . had capacity to bring a survival action.”

Ibid. The decedent’s daughter administered the estate, but counsel added the

daughter to the lawsuit only after the limitations period expired. Ibid. The

court held that the statute of limitations barred the daughter’s claims. Id. at

589.

Similarly, in Armes v. Thompson, 222 S.W.3d 79 (Tex. App.—Eastland

2006, no pet.), a lawyer filed a lawsuit naming Armes as the plaintiff even

though Armes had died from an illness unrelated to the lawsuit. Id. at 81. The

court declined to “treat the original petition filed in Armes’s name individually

as if it was filed on behalf of Armes’s estate.” Id. at 84. Instead, the court held

that the original pleading “was a nullity.” Ibid. This meant that a subsequent

attempt to add Armes’s estate administrator to the lawsuit could not relate

back to the original filing date of the lawsuit, and the estate’s claims were time-

barred. Id. at 84–85 (citing Texas’s relation-back statute, TEX. CIV. PRAC. &

REM. CODE § 16.068).

Hernandez cannot meet this change-of-capacity exception. Hernandez—

the estate’s representative—sued more than three years after Goné’s claim

accrued. At that point, the limitations period had expired. Under the rationale

of Covington and Armes, her claims are barred by the statute of limitations.

Third, Hernandez runs into a different problem by invoking Federal Rule

of Civil Procedure 15(c)(1)(B). That rule says an amendment to a pleading

relates back to the date of the original pleading if it “asserts a claim or defense

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that arose out of the conduct, transaction, or occurrence set out—or attempted

to be set out—in the original pleading.” But we have held Rule 15 cannot be

used to cure a jurisdictional defect. See, e.g., Fed. Recovery Servs. Inc. v. United

States, 72 F.3d 447, 453 (5th Cir. 1995) (“Rule 15 does not permit a plaintiff

[to] amend[ ] its complaint to substitute a new plaintiff in order to cure the lack

of subject matter jurisdiction.”); Aetna Cas. & Sur. Co. v. Hillman, 796 F.2d

770, 774 (5th Cir. 1986) (“[I]f Aetna did not have the ability to bring the suit

. . . it could not amend.”); Summit Office Park, Inc. v. U.S. Steel Corp., 639 F.2d

1278, 1282 (5th Cir. Unit A Mar. 1981) (holding that “where a plaintiff never

had standing to assert a claim against the defendants, it does not have

standing to amend the complaint and control the litigation by substituting new

plaintiffs”). That makes sense given the long-settled rule that we assess

jurisdiction at the time the suit was filed. See, e.g., Davis v. FEC, 554 U.S. 724,

734 (2008).

When Plaintiffs’ counsel filed this suit, Goné did not have standing to

sue because she was deceased. See Lovato, 171 S.W.3d at 850 (noting that if

“the decedent lived, she would have had standing”); Armes, 222 S.W.3d at 85

(holding that “[b]ecause Armes passed away before this suit was filed, she did

not have standing to assert a claim”). Instead, the estate had standing to sue.

See Lovato, 171 S.W.3d at 850 (holding that after a decedent’s death the “estate

has a justiciable interest in the controversy”); Armes, 222 S.W.3d at 83 (“The

estate is distinct from the individual.”). But no one purported to press the

estate’s claims in the original complaint. If Hernandez had been a plaintiff in

the original, timely filed complaint, perhaps she could have amended the

complaint to change her capacity after the limitations period expired. See

Flores, 92 F.3d at 273; Tidewater Marine Towing, Inc. v. Dow Chem. Co., 689

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F.2d 1251, 1253–54 (5th Cir. 1982). † But in this case, the original complaint

simply listed Goné as a plaintiff, even though she had already passed away.

Our precedents do not allow Hernandez to use Rule 15 to go back in time to

cure this jurisdictional defect.

Fourth and finally, Federal Rule of Civil Procedure 17(a) does not help

Hernandez. Plaintiffs devote barely one-and-a-half sentences to Rule 17 in

their opening brief, so the argument is likely forfeited. Audler v. CBC Innovis

Inc., 519 F.3d 239, 255 (5th Cir. 2008).

In all events, it is meritless. Rule 17(a) states that a “court may not

dismiss an action for failure to prosecute in the name of the real party in

interest until, after an objection, a reasonable time has been allowed for the

real party in interest to ratify, join, or be substituted into the action.” We have

held that Rule 17(a) is applicable “only when the plaintiff ” has committed an

“understandable mistake, because the determination of the correct party to

bring the action is difficult.” Wieburg v. GTE Southwest Inc., 272 F.3d 302, 308

(5th Cir. 2001). We do not think representing an attorney-client relationship

with a deceased client constitutes an “understandable” mistake. See In re Engle

Cases, 767 F.3d 1082, 1113 (11th Cir. 2014) (noting that “Rule 17 was not

promulgated to allow lawyers to file placeholder actions . . . to keep a

limitations period open while they investigate their claims and track down the

proper parties”).

† Tidewater suggested in dicta that a plaintiff without standing theoretically could be

swapped out for a plaintiff with standing after expiration of the limitations period. See 689

F.2d at 1253–54. That closing bit of dicta was obviously unnecessary for the court’s holding—

namely, that dismissal was proper because the plaintiff lacked standing. Id. at 1253. In all

events, it cannot be read to contradict our unequivocal statement in Federal Recovery

Services, Inc.: “Rule 15 does not permit a plaintiff [to] amend[] its complaint to substitute a

new plaintiff in order to cure the lack of subject matter jurisdiction.” 72 F.3d at 453.

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III.

We now turn to Alejandro’s claims for unlawful arrest. Here too litigation

missteps doom the claims.

Federal Rule of Civil Procedure 36(a)(1)(A) allows parties to serve

requests for admissions concerning the truth of matters relating to “facts, the

application of law to fact, or opinions about either.” Rule 36(a)(3) states that a

“matter is admitted unless, within 30 days after being served, the party to

whom the request is directed serves on the requesting party a written answer

or objection addressed to the matter and signed by the party or its attorney.”

And Rule 36(b) further provides that a “matter admitted under this rule is

conclusively established unless the court, on motion, permits the admission to

be withdrawn or amended.”

Here, Alejandro failed to respond to Defendants’ requests for admissions.

Requests 4 through 12 asked Plaintiffs to admit, in essence, that they did not

have any evidence establishing that every reasonable officer would have been

on notice that the conduct of Officers Smith, Salazar, and Thornton was

unlawful. Alejandro argues that these requests were improper because they

impermissibly deal with pure questions of law. But that characterization is

incorrect. Defendants’ requests for admissions relate to “the application of law

to fact,” as permitted by Rule 36(a)(1)(A), because they ask whether Alejandro

has evidence to overcome qualified immunity. See Mullenix v. Luna, 136 S. Ct.

305, 308 (2015) (noting that an officer is entitled to qualified immunity unless

every reasonable official would have understood that the conduct was

unconstitutional). Although the requests go to the ultimate question of

Defendants’ liability, nothing in the text of Rule 36 prohibits such requests.

See In re Carney, 285 F.3d 415, 419 (5th Cir. 2001) (“Rule 36 allows litigants

to request admissions as to a broad range of matters, including ultimate facts,

as well as applications of law to fact.”). Our Court has previously upheld the

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use of Rule 36 admissions to defeat plaintiffs’ claims. See Williams v. Wells

Fargo Bank, N.A., 560 F. App’x 233, 244 (5th Cir. 2014); Hulsey v. Texas, 929

F.2d 168, 171 (5th Cir. 1991).

After Plaintiffs missed the deadline to respond to Defendants’ requests

for admissions, they filed a motion to withdraw their deemed admissions. The

district court granted the motion, giving Alejandro another chance to respond

to Defendants’ requests. But even then, she never responded. Thus, the court

correctly deemed that Alejandro admitted to the matters contained in the

requests, which makes them “conclusively established.” FED. R. CIV. P. 36(b).

Because Alejandro admits that she cannot carry her burden to overcome

qualified immunity, Defendants are entitled to summary judgment on her

§ 1983 claims. See King v. Handorf, 821 F.3d 650, 653–54 (5th Cir. 2016).

* * *

At the conclusion of its summary-judgment order, the district court

“expresse[d] sympathy for Ms. Hernandez and for Ms. Alejandro insofar as the

dismissal of their claims is not a product of anything that they themselves have

done or failed to do.” We agree with that sentiment. Unfortunately for the

Plaintiffs, counsel’s mistakes below carry serious consequences that cannot be

cured on appeal. AFFIRMED.

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