Petition for Writ of Certiorari — E. I. du Pont de Nemours & Co. v. Johansen

Supreme Court af the United States

OCTOBER TERM, 1987

E.I. DUPONT DE NEMOURS & COMPANY, INC.,

Petitioner

V.

ROBERT JOHANSEN,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

®,

VAN LEICHLITER JAMES L. WEBER*

Legal Department THOMAS H. WALSTON

E. I. DuPont de Nemours MEHAFFY, WEBER, KEITH

& Co., Inc. & GONSOULIN

Wilmington, Delaware 2615 Calder

19898 P. O. Box 16

(302) 774-6895 Beaumont, Texas 77704

(409) 835-5011

Attorneys for Petitioner

*Counsel of Record

“CS ROA SS AER RSET I, SRT EASE ELIA LOE PEALE YELLS ILE PTE SELLE LETTE LEELLLEE: LEELA IE

Alpha Law Brief Co., Inc. — 8748 Westpark — Houston, Texas 77063 — 789-2000

I

QUESTIONS PRESENTED

1. Whether Federal Rule of Civil Procedure 15(c)

or an applicable state statute will govern relation back

of amended pleadings for purposes of applying a state

statute of limitations in a case in federal court based

solely upon diversity of citizenship.

2. Whether a complaint filed in federal court alleging

only that a product was “defective and/or unreasonably

dangerous” is sufficient under Federal Rule of Civil Pro-

cedure 8(e) to state a distinct state law claim for breach

of warranty.

3. Whether the statute of limitations contained in

§ 2.725 of the Texas UCC applies to injuries occurring

in a foreign country in a case where the substantive

provisions of the UCC do not apply.

Il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........--seceeeccsescoce I

CRITICS TAA oc vicwcedsctecccveseseveseceses 1

DA | kv vek sien csaceceds cv cceted cebbeaeses 2

STATUTORY PROVISIONS AND FEDERAL RULES

CF PRC PU REVERED 6 cessive ssdccevccess 2

STATEMENT © OW Rie Ce ob ns cect esccceccvcceces 6

REASONS FOR GRANTING THE PETITION ........

¢) & 5). ¢ | Sr et ener nr eee ree i4

APPENDIX A—Opinion of Fifth Circuit ............... la

APPENDIX B—Opinion of District Court ............. lla

APPENDIX C—Order of Fifth Circuit Overruling Petition

SNe re rr Tre 25a

APPENDIX D—List of Subsidiaries and Affiliated Com-

panies, Other Than Wholly Owned Com-

panies, As Required by Supreme Court

2 * evererrrerrrT Tire Te Tees 26a

+8 84

TABLE OF AUTHORITIES

CASES

Anderson v. Alistate Insurance Co., 630 F.2d 677, 682 (9th

ee ee 66k sd pees baa neces eceeesess

Board of Regents v. Tomanio, 446 U.S. 478 (1980) ......

Chardon v. Fumero Soto, 462 U.S. 650 (1983) ..........

Crowder v. Gordons Transports, Inc., 387 F.2d 413, 415-16

EE en re

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) ...........

Garcia v. Texas Instruments, Inc., 610 S.W.2d 456, 459 &

i cc U ena ee SEE Soe $a eee seecegesscces

Jacob E. Decker & Sons, Inc. v. Capps, 164 S.W.2d 828

Se ee ee ee

Johansen v. E. I. duPont de Nemours & Co., 810 F.2d

i TED ois oes bacwesenbevcececs

Johnson v. Railway Express Agency, 421 U.S. 454 (1975)

Marshall v. Mulrenin, 508 F.2d 39, 44 (ist Cir. 1974) ..

McKisson v. Sales Affiliates, Inc., 416 S..W2d 787 (Tex.

Reece cree Ad aoe baceveocsceeevecerere

Murphy v. White Hen Pantry Co., 691 F.2d 350 (7th Cir.

ES LOST TEC CT UTE ERE TEETER TTI

Powell v. Brantly Helicopter Corp., 396 F.Supp. 646 (E.D.

PPCM CEA GEL Cec cbacceccesecresvcccces

Propper 0. Clark, 337 US. 472 (1949) .....cccccseseee

Ragan v. Merchant’s Transfer & Warehouse Co., 337 U.S.

eee Eas ca cdeeecteccecscesss

Ragsdale v. Haller, 780 F.2d 794, 799- 801 (9th Cir. 1986)

Walker v. Armco Steel Corp., 446 U.S. 740, 746 (1980) .

Welch v. Louisiana Power & Light Co., 466 F.2d 1344,

EE

Wilson v. Garcia, 471 U.S. 261 (1985) .......... 2. ee eee

STATUTES

» Be ame Sd) es ene Perr Se rere

/ Bk. ae fee errr corre Peer e rer

pe ot CO Ser ee ee ee ere rr Tee Pt rrr errr

- os | one >. Nr ee ee eee ee eee oe

Texas Business and Commerce Code, § 2.725 .........-..

Texas Civil Practice and Remedies Code, § 16.003 ........

Texas Civil Practice and Remedies Code, § 16.068 ........

Texas Civil Practice and Remedies Code, § 71.031 ........

Texas Revised Civil Statute, Art. 4678 ..............005.

Texas Revised Civil Statute, Art. 5526 ...............05.

Texas Revised Civil Statute, Art. 5539b ..............45.

COURT RULES

Federal Rule of Civil Procedure 8 ................2cee08-

Federal Rule of Civil Procedure 15(c) ............. 5, 7,6,

OTHER

Ely, The Irrespressible Myth of Erie, 87 Harv. L. Rev. 693

EPO) nc c6ueeensabeebene tenn teense teiees ene bb nee

Redish and Phillips, Erie and the Rules of Deciston Act:

In Search of the Appropriate Dilemma, 91 Harv. L. Rev.

8 rey ere OPT ee LEE LOTT TT Te

Restatement 2d of Torts, § 402A, comment m ..........

Wright and Miller, 6 Federal Practice and Procedure § 1503

eoeeereveverererereereeereeeeseeee eee eeeeeeeeeee ee ee re

10

13

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1987

E.I. DUPONT DE NEMOURS & COMPANY, INC.,

Petitioner

V.

ROBERT JOHANSEN,’

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

E. I. duPont de Nemours & Company, Inc., petitions

for a Writ of Certiorari to review the judgment in this

case of the United States Court of Appeals for the Fifth

Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

810 F.2d 1377 (App. A, infra). The opinion of the

district court is reported at 627 F.Supp. 968 (App. B,

infra).

1. There are no parties to this lawsuit other than petitioner and

respondent. Du Pont’s affiliates are listed in App. D.

Ee a

2

JURISDICTION

The judgment of the Court of Appeals was entered on

March 2, 1987 (App. A). A petition for rehearing was

denied on April 14, 1987 (App. C, infra). This court

has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS AND FEDERAL RULES

OF PROCEDURE INVOLVED

1. The Federal Rules of Decision Act, codified at

28 U.S.C. § 1652 provides:

The laws of the several states, except where the

Constitution or Treaties of the United States or

Acts of Congress otherwise require or provide, shall

be regarded as rules of decision in civil actions in

the courts of the United States, in cases where they

apply.

2. The Federal Rules Enabling Act, codified at 28

U.S.C. § 2072 provides:

The Supreme Court shall have the power to pre-

scribe by general rules, the forms of process, writs,

pleadings, and motions, and the practice and pro-

cedure of the district courts and courts of appeals

of the United States in civil actions, including ad-

miralty and maritime cases, and appeals therein,

and the practice and procedure in proceedings for

the review by the courts of appeals of decisions of

the Tax Court of the United States and for the

judicial review or enforcement of orders of ad-

ministrative agencies, boards, commissions, and of-

ficers.

Such rules shall not abridge, enlarge or modify any

substantive right and shall preserve the right of trial

3

by jury as at common law and as declared by the

Seventh Amendment to the Constitution.

Such rules shall not take effect until they have

been reported to Congress by the Chief Justice at

or after the beginning of a regular session thereof

but not later than the first day of May, and until

the expiration of ninety days after they have been

thus reported.

All laws in conflict with such rules shall be of

no further force or effect after such rules have

taken effect. Nothing in this title, anything therein

to the contrary notwithstanding, shall in any way

limit, supersede, or repeal any such rules heretofore

prescribed by the Supreme Court.

3. Texas Revised Civil Statute, Art. 4678 (currently

codified at Texas Civil Practice and Remedies Code

§ 71.031) provides:

Whenver the death or personal injury of a citizen

of this State or of the United States, or of any

foreign country having equal treaty rights with

the United States on behalf of its citizens, has been

or may be caused by the wrongful act, neglect

or default of another in any foreign State or country

for which a right to maintain an action and re-

cover damages thereof is given by the statute or

law of such foreign State or country or of this

State, such right of action may be enforced in the

courts of this State within the time prescribed for

the commencement of such actions by the statutes

of this State. All matters pertaining to procedure

in the prosecution and maintenance of such action

in the courts of this State shall be governed by the

law of this State, and the court shall apply such

rules of substantive law as are appropriate under

the facts of the case.

4

4. Texas Revised Civil Statute, Art. 5539b (cur-

rently codified in Texas Civil Practice and Remedies

Code, § 16.068) provides in pertinent part:

Whenever any pleading is filed by any party to a

suit embracing any cause of action, cross-action,

counterclaim, or defense, and at the time of filing

such pleading such cause of action, cross-action,

counterclaim, or defense is not subject to a plea of

limitation, no subsequent amendment or supplement

changing any of the facts or grounds of liability or

of defense shall be subject to a plea of limitation,

provided such amendment or supplement is not

wholly based upon and grows out of a new, distinct

or different transaction and occurrence.

5. Texas Revised Civil Statute, Art. 5526 (currently

codified at Civil Practice and Remedies Code, § 16.003)

provides in pertinent part:

There shall be commenced and prosecuted within

two years after the cause of action shall have ac-

crued, and not afterward, all actions for suits in

court of the following description:

6. Action for injury done to the person of another.

6. Texas Business and Commerce Code, § 2.725 pro-

vides in pertinent part:

(a) An action for breach of any contract for sale

must be commenced within four years after the cause

of action has accrued... .

5

(b) A cause of action accrues when the breach

occurs, regardless of the aggrieved party’s lack of

knowledge of the breach. A breach of warranty

occurs when tender of delivery is made, except that

where a warranty explicitly extends to future per-

formance of the goods and discovery of the breach

must await the time of such performance the cause

of action accrues when the breach is or should have

been discovered.

(d) This section does not alter the law on tolling

of the Statute of Limitations nor does it apply to

causes of action which have accrued before this title

becomes effective.

7. Federal Rule of Civil Procedure 15(c) provides

in pertinent part:

(a)

Whenever the claim or defense asserted in the

amended pleading arose out of the conduct, trans-

action, or occurrence set forth or attempted to be

set forth in the original pleading, the amendment

relates back to the date of the original pleading. .. .

. Federal Rule of Civil Procedure 8, Subdivisions

and (e) provide in pertinent part:

(a) Claims for relief. A pleading which sets forth

a claim for relief, whether an original claim, counter-

claim, cross-claim, or third-party claim, shall con-

tain . . . (2) a short and plain statement of the

claim showing that the pleader is entitled to relief, . . .

(e) Pleading to be concise and direct; consistency.

(1) Each averment of a pleading shall be simple,

concise, and direct. No technical forms of plead-

ing or motions are required.

6

(2) A party may set forth two or more state-

ments of a claim or defense alternately or hypo-

thetically, either in one count or defense or in

separate counts or defenses.

STATEMENT OF THE CASE

1. Plaintiff Robert Johansen, an Englishman, was an

oilfield worker who was injured on March 3, 1980 while

working in the Lybian desert for Halliburton Manufac-

turing & Services, Ltd., his English employer. He injured

his hand and arm when a casing gun he was assembling

prematurely detonated. The casing gun, explosive charges,

fuses, and ail parts and equipment other than a small

booster called a C-63 were manufactured by companies

other than DuPont. DuPont is a Delaware corporation

that manufactures C-63’s only in Pompton Lakes, New

Jersey.

2. Plaintiff originally brought a lawsuit in England

against his employer. That case was settled in July, 1985.

On February 23, 1983, more than two years after the

accident, plaintiff filed this lawsuit in the United States

District Court for the Eastern District of Texas. Jurisdic-

tion was based solely upon diversity of citizenship. 28

U.S.C. § 1332. Plaintiff sued DuPont and seven other

defendants, alleging only claims for negligence and pro-

ducts liability.

DuPont and the other defendants promptly filed mo-

tions for summary judgment based on the applicable

Texas two year statute of limitations. The district court

denied the motions on February 10, 1984 without a hear-

ing or written opinion. One week later, plaintiff and all

7

defendants except DuPont filed a joint motion to dismiss

and to transfer the case to England. That motion was

granted a short time later.

Plaintiff never alleged a breach of warranty claim until

he filed his First Amended Original Complaint on Febru-

ary 6, 1985, more than four years after the accident.

After obtaining a deposition from the plaintiff, DuPont

filed a second motion for summary judgment. District

Judge Howell Cobb conducted a hearing on the motion,

and granted it on November 7, 1985.

3. In his written opinion (App. B) Judge Cobb con-

cluded that plaintiff's original complaint stated claims for

negligence and products liability only, and he held those

claims were barred by the Texas two-year statute of

limitations. He further held that the claims for breach

of warranty were barred by the Texas U.C.C. four-year

statute of limitations (assuming it applied as an exception

to the two-year statute) because those claims were not

made until more than four years after the accident.

Judge Cobb reasoned that relation back of plaintiff's

amended complaint to the original complaint was gov-

erned by the Texas relation back statute at Art. 5539b,

rather than Federal Rule of Civil Procedure 15(c). The

Texas statute does not permit relation back to a pleading

that was barred by limitations when it was filed. There-

fore, Judge Cobb held the amended complaint alleging

breach of warranty did not relate back under Texas law

to the original complaint that only stated claims barred

by limitations, and he granted DuPont’s motion for sum-

mary judgment.’

2. Judge Cobb made an alternative holding that the Texas U.C.C.

four-year statute of limitations did not even apply as an exception

to the general two-year statute in cases involving injuries in a foreign

country, to which the Texas U.C.C. did not apply.

8

4. On appeal, the Fifth Circuit affirmed the dismissal

of the product liability and negligence claims, but

vacated and remanded on the breach of warranty claims.

(See App. A). The Fifth Circuit held that Federal Rule

15(c) controlled over the Texas relation back statute.

Thus, the circuit court held the breach of warranty claims

related back to the date of the original complaint, which

was within the four-year statute of limitations. Because of

this ruling, the Fifth Circuit did not reach the issue of the

adequacy of plaintiff’s pleadings in his original complaint.

The court also held that the four-year U.C.C. statute

of limitations would apply to an injury occurring outside

of Texas, if the substantive law to be applied in the case

under Texas conflict of law rules recognized a breach

of warranty claim. The Fifth Circuit remanded the case

for the District Court to determine which jurisdiction’s

substantive law will apply, and whether that law recog-

nizes a breach of warranty theory for personal injuries.

REASONS FOR GRANTING THE PETITION

THIS CASE PRESENTS THE IMPORTANT QUES-

TION OF THE APPLICATION OF STATE STATUTES

OF LIMITATION IN DIVERSITY CASES, WHEN

THE STATE RELATION BACK RULE DIFFERS

FROM RULE 15(c).

1. This Court has never ruled on the specific issue

presented, and there is a split among the circuits. The

Fifth and Eighth Circuits have applied Rule 15(c), while

the First and Ninth Circuits have applied state law in

cases where it was more liberal than Rule 15(c). Compare,

Johansen v. E.l. duPont de Nemours & Co., 810 F.2d

9

1377, 1380 (Sth Cir. 1987); Welch v. Louisiana Power

& Light Co., 466 F.2d 1344, 1345 (Sth Cir. 1972)

(amended pleading to correct misnomer); and Crowder

v. Gordons Transports, Inc., 387 F.2d 413, 415-16 (8th

Cir. 1967), with Ragsdale v. Haller, 780 F.2d 794, 799-

801 (9th Cir. 1986); Anderson v. Allstate Insurance Co.,

630 F.2d 677, 682 (9th Cir. 1980) and Marshall v.

Mulrenin, 508 F.2d 39, 44 (lst: Cir. 1974). See also,

Powell v. Brantly Helicopter Corp., 396 F.Supp. 646

(E.D. Tex. 1975) (applying Texas Article 5539b instead

of Rule 15(c)).

Professors Wright and Miller have noted:

There has been corsiderable uncertainty whether a

federal court sitting ia diversity jurisdiction is free

to apply the relation back principle embodied in

Rule 15(c) instead of a conflicting state rule on the

subject .. .”

Wright and Miller, 6 Federal Practice and Procedure

§ 1503 (1971). This court should grant the petition to

establish a uniform rule and to promote an efficient and

uniform handling of diversity cases.

The Fifth Circuit’s application of Rule 15(c) instead

of a different state rule is contrary to this Court’s more

recent holdings mandating the application of state tolling

rules when applying state statutes of limitation. In

Chardon v. Fumero Soto, 462 U.S. 650 (1983) this

Court applied Puerto Rico’s tolling provisions rather than

a federal rule in a civil rights class action, and in Board

of Regents v. Tomanio, 446 U.S. 478 (1980) this Court

applied a New York tolling rule stating:

10

“In § 1983 actions, however, a state statute of

limitations and the coordinate tolling rules are more

than a technical obstacle to be circumvented if pos-

sible. In most cases they are binding rules of law.”

Id. at 484.

See also, Johnson v. Railway Express Agency, 421

U.S. 454 (1975) and Wilson v. Garcia, 471 U.S. 261

(1985) concerning application of state limitation rules

in civil rights cases.

While these examples are civil rights cases which

“borrow” state limitation laws, the same principle is even

more compelling in cases based solely upon diversity of

citizenship. The Rules of Decision Act, and Erie R. Co.

v. Tompkins, 304 U.S. 64 (1938) and its progeny reflect

the important concerns of federalism and the protection

of the States’ interests in the application of their laws in

diversity litigation in federal courts. This Court has twice

stated:

“We cannot give [the cause of action] longer life

in the federal court without adding something to

the cause of action. We may not do that consistently

with Erie R. Co. v. Tompkins.”

Walker v. Armco Steel Corp., 446 U.S. 740, 746

(1980); Ragan v. Merchant’s Transfer & Warehouse Co.,

337 U.S. 530, 533-34 (1949). See generally, Redish and

Phillips, Erie and the Rules of Decision Act: In Search

of the Appropriate Dilemma, 91 Harv. L. Rev. 356

(1977) and Ely, The Irrepressible Myth of Erie, 87

Harv. L. Rev. 693 (1974).

Texas has clearly articulated its policy that, in cases

involving injuries in foreign countries, the suit must be

ee

11

brought “. . . within the time prescribed for commence-

ment of such actions by the statutes of this State.” Art.

4678. Further, the Texas relation back provision at Art.

5539b is more than a Texas rule of procedure: it is a

statute adopted by the Legislature as an integral part

of the Texas statutes of limitation system. The applica-

tion of Rule 15(c) under the facts of this case violates

the Rules of Decision Act, 28 U.S.C. § 1652 and the

provision in the Rules Enabling Act that the Rules of

Civil Procedure “. . . shall not abridge, enlarge or modify

any substantive right . . .”. 28 U.S.C. § 2072.

2. Another practical consideration favoring applica-

tion of the state rule is the crowded federal court docket.

This problem is only exacerbated when federal cases

based upon diversity of citizenship are allowed to proceed

when they would be barred by limitations in state court.

Further, the vague pleadings of the type used by plaintiff

in this case hinder an efficient administration of the

federal court’s civil docket. While Rule 8(a) requires

only a “short and plain statement of the claim”, Rule

8(e) also requires that each averment of a pleading

be “simple, concise and direct.” As noted by Judge Cobb,

the trial court should not be required to “discover un-

stated claims.” Likewise, in Murphy v. White Hen Pantry

Co., 691 F.2d 350 (7th Cir. 1982) the court held:

“The district court is not required, however, to

speculate over the nature of plaintiff's claim or to

refuse to enter summary judgment for the defendant

simply because the plaintiffs may, theoretically, be

entitled to recover under a cause of action based

on facts never alleged in the complaint.” Jd. at 353.

3. Finally, the petition should be granted because the

Fifth Circuit clearly erred in holding that the Texas

k2-

U.C.C. statute of limitations will apply to claims not

arising under the U.C.C. Although this is a matter of

state law, the U.C.C. has been adopted by forty-nine

of the states, and its uniform application is a matter of

national concern. Defendant has not been able to locate

any other case in the nation which applied the U.C.C.

statute of limitations to a claim not arising under the

substantive provisions of the Code. Although this Court

has traditionally hesitated to review issues of state law,

it will do so when the lower court’s “conclusions are

shown to be unreasonable.” Propper v. Clark, 337 US.

482 (1949).

This court’s reluctance to review issues of state law

has been based upon the principle that the lower court

is more familiar with its application. However, in this

case the district court held the limitations statute

was not applicable, while the circuit court held that it

was. Therefore, a conflict exists between the two lower

courts.

The Fifth Circuit’s conclusion that Texas U.C.C.

§ 2.725 will apply to a warranty claim arising under

the law of Lybia, New Jersey, or some other foreign

jurisdiction was unreasonable. The landmark Texas case

for applying U.C.C. § 2.725 to a personal injury action

made it clear that the section applied to claims “arising

under the code”. Garcia v. Texas Instruments, Inc.,

610 S.W.2d 456, 459 & 465 (Tex. 1980). Further,

the Fifth Circuit plainly erred in its reliance upon Jacob

E. Decker & Sons, Inc. v. Capps, 164 S.W.2d 828 (Tex.

1942) and McKisson v. Sales Affiliates, Inc., 416 S.W.2d

787 (Tex. 1967) for its holding that Texas recognized

a common law action for breach of warranty equivalent

13

to U.C.C. warranties, prior to Texas’ adoption of the

U.C.C. Those opinions were early attempts to articulate

a products liability theory, and those opinions specifically

stated that the implied warranties being adopted were

not contractural warranties, of the type contained in the

U.C.C. In Decker the court stated:

“While a right of action in such a case is said to

spring from a ‘warranty’, it should be noted that

the warranty here referred to is not the more modern

contractual warranty, but is an obligation imposed

by law to protect public health.” Jd. at 832.

In contrast, Chapter 2 of the Texas U.C.C., and

§ 2.725 in particular, deal with contracts for the sale of

goods. This confusion was warned against by the authors

of the Restatement 2d of Torts. Comment m to § 402A

of the Restatement 2d of Torts states in part:

“A number of courts, seeking a theoretical basis

for the liability, have reasoned that a ‘warranty’,

either running with the goods sold, by analogy to

covenants running with the,land, are made directly

to the consumer without contract. In some instances,

this theory has proved to- be an unfortunate one.

. . . But if this is done, it should be recognized and

understood that the ‘warranty’ is a very different

kind of warranty from those usually found in the

sale of goods, and that it is not subject to the various

contract rules which have grown up to surround

- such sales.”

The Court of Appeals plainly erred in applying § 2.275

of the Texas U.C.C. to a case in which the substantive

provisions of the U.C.C. do not apply. These conclusions

are unreasonable.

14

4. In summary, this case presents the important issue

of whether Federal Rule 15(c) or a state relation back

rule will be applied in a case pending in federal court,

based solely upon diversity of citizenship. This is an issue

that arises frequently, and there is currently a split among

the circuits. This court should resolve and clarify the issue.

CONCLUSION

For the reasons stated, this Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

MEHAFFY, WEBER, KEITH

& GONSOULIN

Attorneys for Petitioner

By:

JAMES L. WEBER, Of Counsel

State Bar No. 21042800

Post Office Box 16

Beaumont, Texas 77704

409/835-5011

July 13, 1987

la

APPENDIX A

Robert JOHANSEN,

Plaintiff-Appellant,

Vv.

E.I. DU PONT DE NEMOURS & CO.,

Defendant-Appellee.

No. 85-2835.

United States Court of Appeals,

Fifth Circuit.

March 2, 1987.

Plaintiff in personal injury action appealed from judg-

ment of the United States District Court for the Eastern

District of Texas, Howell Cobb, J., 627 F.Supp. 968,

which granted defendant’s motion for summary judgment.

The Court of Appeals, W. Eugene Davis, Circuit J udge,

held that: (1) federal relation back rule applied; (2)

amendment adding claims predicated on breach of im-

plied and express warranty arising out of same accident

on which products liability claim was asserted related

back to the filing of the products liability complaint; and

(3) four-year limitations period in the U.C.C. for breach

of implied and express warranties was procedural rather

than substantive and would thus apply under Texas law

if the jurisdiction whose substantive law governed did

not consider its own limitations period substantive.

Affirmed in part, vacated in part and remanded.

2a

Joseph C. Blanks, Beaumont, Tex., for plaintiff-appel-

lant.

Thomas H. Walston, O. J. Weber, Robert A. Black,

Beaumont, Tex., for defendant-appellee.

Appeal from the United States District Court for the

Eastern District of Texas.

Before GARZA, DAVIS, and JONES, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Robert Johansen, appeals from the district court’s grant

of summary judgment in favor of E.I. Du Pont de

Nemours & Co. We affirm in part, vacate in part and

remand.

I.

Robert Johansen, a citizen of the United Kingdom,

was injured in Libya in March 1980, when an oil well

casing gun he was assembling exploded. Almost three

years after the accident, Johansen filed this action against

E.I. Du Pont de Nemours & Co. (Du Pont) and eight

others. All defendants other than Du Pont were dismissed

on the basis of forum non conveniens. No appeal was

taken from these dismissals.

Johansen asserted a products liability claim against

Du Pont. He alleged in his original petition that the

casing gun exploded because of a malfunction in the

tool’s primary explosive that was manufactured by Du

Pont; he predicated his claim on both negligence and

strict products liability. Two years after Johansen filed

suit and almost five years after his injury, the district

court permitted Johansen to amend his complaint to

assert breaches of implied warranty of merchantability

3a

and fitness. Du Pont moved for summary judgment on

grounds that the Texas two year limitations period for

personal injury actions barred the action.

In its memorandum opinion, 627 F.Supp. 968 (E.D.

Tex. 1985), the district court concluded that Johansen’s

claims predicated on negligence and strict products lia-

bility were barred by the Texas two year statute of limita-

tions. Tex. Rev. Civ. Stat. Ann. art. 5526 (Article 5526).?

Id. at 970. See (Vernon 1958) (hereinafter referred to

as Article 5526). The district court held that Johansen’s

original complaint did not sufficiently assert his breach

of implied warranty claims. Jd. at 973-74. The district

court also held that under Texas Revised Civil Statute

article 5539b,? the Texas relation back statute, Johan-

sen’s amended complaint could not relate back to his

original complaint because the claim asserted in that

complaint was time-barred. 627 F.Supp. 973. The district

court also concluded that even if the federal relation back

provisions of Rule 15(c), F.R.C.P., applied, Johansen’s

implied warranty claims were still prescribed. 7d. Finally,

the district court denied Johansen’s motion for leave to

1. Article 5526 was repealed in 1985 and a substantially identical

provision is now found at Texas Civil Practice and Remedies Code

§ 16.003(a) (Vernon 1986).

2. Tex. Rev. Civ. Stat. Ann. art. 5539b (Vernon 1958) (herein-

after referred to as Art. 5539b). Article 5539b was repealed in 1985.

This provision is now codified at Texas Civil Practice and Remedies

Code § 16.068 (Vernon 1986). Section 16.068, which is substantially

similar to Article 5539b, provides:

If a pleading relates to a cause of action, . . . that is mot subject

to a plea of limitation when the pleading is filed, a subsequent

amendment . . . that changes the facts or grounds of liability

or defense is not subject to a plea of limitation unless the

amendment . . . is wholly based on a new, distinct, or different

transaction or occurrence.

Id. (emphasis added).

4a

amend his complaint to assert a breach of express war-

ranty claim because it determined that such a claim would

be prescribed for the same reasons the implied warranty

claims were time-barred. Id. at 974.

On appeal, Johansen does not dispute that the negli-

gence and strict liability claims he asserted in his original

complaint are prescribed. He asserts, however, that his

original complaint sufficiently stated a claim for breach

of implied warranty so that this claim was timely as-

serted under the four year statute of limitations provided

in the Texas Uniform Commercial Code (UCC) for such

claims.* Alternatively, he argues that under Rule 15(c),

F.R.C.P., the filing of his amended complaint in February

1985, concededly outside the four-year period, relates

back to the filing date of his original complaint and is

not time barred under the Texas UCC. Finally, Johansen

argues that the district court erred in denying his motion

for leave to amend his complaint to include an express

warranty claim because the express warranty claim is not

time barred as found by the district court.

Il.

A.

It is unnecessary to consider Johansen’s contention

that he stated a breach of implied warranty claim in his

original complaint, because, for reasons that follow, we

conclude that his amendment specifically asserting this

claim relates back to his original petition.

3. The provision reads in part as follows: “An action for breach

of any contract for sale must be commenced within four years after

the cause of action has accrued. . . .” Tex. Bus. Comm. Code § 2.725

(Vernon 1968) (hereinafter referred to as section 2.725).

Sa

Johansen contends that the federal relation back rule

applies in this case rather than the Texas rule that was

applied by the district court. Rule 15(c), F.R.C.P., pro-

vides: “Whenever the claim or defense asserted in the

amended pleading arose out of the conduct, transaction,

or Occurrence set forth or attempted to be set forth in the

original pleading, the amendment relates back to the date

of the original pleading.”

[1, 2] When a federal rule of civil procedure specifi-

cally covers a particular situation, a federal diversity

court is required to apply the federal rule unless applica-

tion of the federal rule violates the Enabling Act or the

Constitution. Hanna v. Plumer, 380 U.S. 460, 470, 85

S. Ct. 1136, 1143, 14 L.Ed.2d 8 (1965). See also 3 J.

Moore, Moore’s Federal Practice § 15.15[2], at 15-144

(2d Ed. 1985). Rule 15(c) is a truly procedural rule

because it governs the in-court dispute resolution pro-

cesses rather than the dispute that brought the parties

into court; consequently, it does not transgress the Rules

Enabling Act. Furthermore, it is undisputed that Con-

gress has the constitutional power to enact Rule 15(c)

governing federal court practice.

Welch v. Louisiana Power & Light Co., 466 F.2d 1344

(Sth Cir. 1972), is closely analogous to the facts pre-

sented in the instant case. In Welch, the amendment the

plaintiff sought to make would not relate back under

Louisiana law; therefore, if Louisiana law governed,

plaintiff's action was barred by the applicable Louisiana

prescriptive period. We held that relation back was gev-

erned by federal and not state law because there is a

“strong presumption that the federal rules govern, rather

than state law, in cases involving arguably procedural

matters.” Id. at 1345.

6a

[3] Therefore, we conclude that Rule 15(c), the fed-

eral relation back rule, applies and the district court

erred in applying the Texas relation back rule.

[4] Rule 15(c) requires a federal diversity court to

allow the amendment to relate back to the date of the

original filing if the amended pleading arose out of the

“conduct transaction, or occurrence set forth or attempted

to be set forth in the original pleading. . . .” Johansen’s

claims predicated on breach of implied and express war-

ranty arise out of the same accident on which he asserted

a strict products liability claim in his original petition.

The claims alleged in the amendments therefore arise

out of the same transaction or occurrence as Johansen’s

products claims. Consequently, under Rule 15(c), the

amendments relate back to the original petition. Williams

v. United States, 405 F.2d 234, 237 (Sth Cir. 1968);

United States v. Johnson, 288 F.2d 40, 42 (Sth Cir.

1961). See also 3 J. Moore, Moore’s Federal Practice,

§ 15.15[3], at 15-151 (2d Ed. 1985).

B.

We now turn to the district court’s alternate ruling,

that even if the amendments relate back to the original

petition, Johansen’s breach of implied and express war-

ranty claims are prescribed under the Texas two-year

limitations provision.

Erie principles require federal diversity courts to apply

the conflict of laws provisions of the forum state. Klaxon

Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S. Ct.

1020, 85 L.Ed. 1477 (1941). Texas law provides that

an action for personal injury occurring outside the state

and tried in a Texas court must be brought within the

7a

time provided by Texas law. Tex. Rev. Civ. Stat. Ann.

art. 4678 (Vernon 1975) (hereinafter referred to as

Article 4678).* Procedural questions are governed by

Texas law and the substantive law appropriate under the

facts of the case must be applied. Id.

Applying Article 4678, the district court reasoned that

only Texas procedural law applies; the court concluded

that because Texas UCC section 2.725, which provides

the limitations period for the UCC remedies of breach

of implied and express warranties, was substantive rather

than procedural it was inapplicable. Based on this reason-

ing, the district court held that the Texas two year pre-

scriptive period provided by Article 5526 was the Texas

procedural rule that governed this action. 627 F.Supp.

at 973.

We disagree with the district court’s conclusion that

the four year limitations period provided in Texas UCC

section 2.725 is substantive rather than procedural. As

a general proposition, statutes of limitation are regarded

as procedural. Gaston v. B.F. Walker, Inc., 400 F.2d

671, 673 (Sth Cir. 1968); 3 W. Hawkland, Uniform

Commercial Code Series § 2-725:01, at 477 (1982).

Texas courts consider a limitations period substantive in

a particular circumstance: when a statute that creates a

right not existing at common law also incorporates a

limitation upon the time within which a suit is to be

brought to enforce that right. State of California v. Copus,

158 Tex. 196, 309 S.W.2d 227, 231, cert. denied, 356

U.S. 967, 78 S. Ct. 1006, 2 L.Ed.2d 1074 (1958). In

4. Article 4678 was repealed in 1985 and a substantially identical

provision is now found at Texas Civil Practice and Remedies Code

§ 71.031 (Vernon 1986).

8a

such an instance, the “limitation qualifies the right so

that it becomes a part of the substantive law rather than

procedural. . . .” 158 Tex. at 201, 309 S.W.2d at 231.

The UCC provisions pertaining to implied and express

warranties do not create new rights not existing at com-

mon law. A cause of action predicated on the implied

warranty of merchantable quality was developed at English

common law. Prosser, The Implied Warranty of Merchant-

able Quality, 27 Minn. L. Rev. 117-18 (1943). Before

Texas adopted the UCC in 1968, its courts recognized

a cause of action for breach of an implied warranty of

product quality. See, e.g., Jacob E. Decker & Sons, Inc.

v. Capps, 139 Tex. 609, 164 S.W.2d 828 (1942);

McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.

1967).

Similarly, the action for breach of an express warranty

relating to the quality of goods was also present at com-

mon law and in pre-UCC Texas decisions. See T.F.

Plucknett, A Concise History of the Common Law 641

(Sth ed. 1956); Prosser, supra, at 119-20; Donelson v.

Fairmont Foods Co., 252 S.W.2d 796 (Tex. Civ. App.

1952; writ ref'd n.r.e.); Seale v. Schultz, 3 S.W.2d 563

(Tex. Civ. App. 1927, no writ).

[5] Thus, the actions for breach of implied and ex-

press warranties were recognized at common law and

by Texas courts before Texas adopted the UCC. There-

fore, section 2.725, the limitation period for the UCC

remedies for breach of implied and express warranties,

is procedural rather than substantive.

[6] The district court, on remand, must determine

what jurisdiction’s law will govern the substantive legal

Ga

~

issues presented.° If that jurisdiction recognizes a distinct

cause of action for breach of implied and express war-

ranties, and if that jurisdiction’s limitations period is not

considered substantive, the four-year period provided by

Texas UCC § 2.725 is the controlling limitations period

for those actions. Garcia v. Texas Instruments, Inc., 610

S.W.2d 456 (Tex. 1980). But, if that jurisdiction’s limi-

tations period is considered substantive, that provision

will govern. See Copus, 158 Tex. 196, 309 S.W.2d 227,

cert. denied, 356 U.S. 967, 78 S. Ct. 1006, 2 L.Ed.2d

1074 (1958). Because the amended complaints relate

back to the original complaint, the implied and express

warranty claims are not time barred under section 2.725.

CONCLUSION

We affirm the district court’s dismissal of Johansen’s

negligence and strict products liability claims. We con-

clude, however, that we must vacate the district court’s

orders granting summary judgment on Johansen’s implied

warranty claims and denying Johansen’s motion to amend

his complaint to assert an express warranty claim be-

cause the record does not demonstrate that Johansen’s

implied or express warranty claims are time barred.

On remand, the district court should determine whether

the applicable substantive law will permit Johansen to

assert distinct claims predicated on implied and express

5. Texas has adopted the position of the Restatement of Conflicts

in resolving all choice of law questions. Duncan v. Cessna Aircraft

Co., 665 S.W.2d 414, 421 (Tex. 1984); Gutierrez v. Collins, 583

S.W.2d 312, 318 (Tex. 1979). The law of the jurisdiction with the

most significant relationship to the facts surrounding the relevant

issue to be decided must be applied. Duncan, 665 S.W.2d at 421;

Gutierrez, 583 S.W.2d at 318-19. See generally Restatement (Second)

Conflict of Laws §§ 6, 145 and 188 (1971).

10a

warranties; if so, the district court will apply the four-

year limitation period in section 2.725 unless the foreign

limitations period applicable to such claims is determined

to be substantive law.

Accordingly, the judgment of the district court is af-

firmed in part, vacated in part and remanded for further

proceedings consistent with this opinion.

AFFIRMED in part, VACATED in part and RE-

MANDED.

lla

APPENDIX B

Robert JOHANSEN

¥.

E.I. DUPONT DE NEMOURS AND CO.

No. Civ. A. B-83-155-CA.

United States District Court,

E.D. Texas, .

Beaumont Division.

Nov. 7, 1985.

English oil field worker who was injured while load-

ing a casing gun in Libya brought action against gun’s

supplier. On defendant’s motion for summary judgment,

the District Court, Cobb, J., held that: (1) Texas’ two-

year limitations period rather than United Kingdom’s

three-year limitations period, applied; (2) rule providing

for relation back of amendment to date of original plead-

ing did not apply; and (3) under rule requiring that

pleadings be construed as to do substantial justice,

worker’s original complaint did not set forth a claim for

relief for alleged breach of implied warranties.

Case dismissed.

Joe Blanks, Beaumont, Tex., for plaintiff.

O. J. Weber, Tow Walston, Beaumont, Tex., for de-

fendant.

12a

MEMORANDUM OPINION

COBB, District Judge.

In this action, the defendant E.I. du Pont de Nemours

& Co., Inc. (DuPont) seeks a summary judgment as to

the action brought against it by the plaintiff Robert

Johansen (Johansen). The plaintiff desires leave to re-

amend his complaint to state an additional claim for

relief against the defendant. For the reasors explained

herein, the defendant’s motion for summary judgment

is granted and the plaintiff's motion for leave to file

amended second amended original complaint is denied

Johansen alleges that he was an English oilfield worker

who was working in Libya for one of the Halliburton

companies when he was injured within the course and

scope of his employment. He states that on March 30,

1980, as a part of his job, he was loading a casing gun.

The gun, its charge and its components are alleged to

have been designed, manufactured, supplied or sold by

DuPont and other parties which have been dismissed

from this action. The gun apparently discharged, causing

injuries to the plaintiff.

This federal action was initially filed on February

23, 1983, alleging diversity jurisdiction as against Du-

Pont and several other parties. All defendants other than

DuPont were dismissed from this action on the basis of

forum non conveniens. In the plaintiff's original com-

plaint, the claims for relief were negligence and products

liability. On February 6, 1985, Johansen amended his

complaint to assert breaches of the implied warranties

of merchantability and fitness for a particular purpose as

additional claims. DuPont moved for summary judgment

13a

on the basis that all of the plaintiff's claims for relief

were time barred under the relevant statutes of limitation.

Johansen has sought the leave of the court to further

amend his complaint to add breach of express warranty

as a further claim for relief. The parties have each con-

tested the other’s pending motion.

DuPont asserts that under the relevant Texas conflicts

law, Texas procedural law prescribes the time in which

the suit may be brought. The time allowed in a personal

injury action is two years from the date of the injury.

Since the actions for negligence and product liability

were not brought within two-years of the injury, DuPont

contends that they are time barred. DuPont further states

that the four-year statute of limitations provided in the

Texas Uniform Commercial Code for breach of war-

ranty actions does not save plaintiff's claim because the

breach of warranty actions were not brought within four

years from the time of the accident and is therefore also

time barred. Additionally, DuPont states that the Texas

Uniform Commercial Code does not apply because plain-

tiff’s cause of action has no relationship to the State of

Texas. Finally, the defendant claims there can be no

claim for relief for breach of implied warranties since

DuPont specifically disclaimed all warranties of mer-

chantability and fitness for a particular purpose.

Johansen responds to the defendant’s motion by as-

serting that the laws of the United Kingdom control

the time for filing suit, thereby extending the time for

filing an action for negligence to three years from the

date of the accident. He also claims that the Texas

statute of limitations has not run because his original

complaint contained language sufficient to give fair

14a

notice to the defendant of the nature and grounds of

his action for breach of implied warranty. Johansen

further contends that the amended complaint relates

back to the date of the original complaint thereby

bringing the filing of the action for breach of implied

warranties within the four-year limitation period. Finally,

the plaintiff states that the disclaimer of warranties

made by DuPont presents genuine issues of fact which

precludes summary judgment based upon the disclaimer.

This court after hearing the parties’ argument and

having carefully considered the law and evidence of

this case concludes that DuPont’s motion for summary

judgment should be granted and that Johansen’s motion

to file second amended original complaint should be

denied.

I. NEGLIGENCE AND

PRODUCT LIABILITY

[1] This court holds that the claims for relief in

each of the plaintiff's various complaints which are based

upon negligence and product liability are time barred.

As there can be no award granted on these claims

under the Texas statutes, summary judgment is ap-

propriate.

It is well settled that in a federal diversity action,

the law of the forum state controls the substantive

law involved in the action.’ This doctrine extends to

include the forum state’s conflict of laws provisions.’

1. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L.Ed.

1188 (1938).

2. Klaxon Company v. Stentor Electric Manufacturing Co., 313

U.S. 487, 61 S. Ct. 1020, 85 L.Ed. 1477 (1941).

15a

Since this action was commenced in Texas, that state’s

conflict of laws provisions guide this court in its decision.

The Texas personal injury conflicts provision requires

that Texas procedural law and the appropriate sub-

stantive law are to be applied to an out-of-state injury

tried before a Texas court.* Statutes of limitation are

generally recognized to be procedural in nature,* and

therefore will usually come from Texas statutes when

the case is heard by a state or federal court in Texas.

VERNON’S ANNOTATED TEXAS CIVIL STATUTES, Article

5526 (Art. 5526), states:

There shall be commenced and prosecuted within

two years after the cause of action shall have ac-

crued, and not afterward, all actions or suits in

court of the following description:

6. Action for injury done to the person of another.

Since there is no dispute that the injury which Johansen

is suing upon occurred on March 30, 1980, and that the

action was not commenced until February 23, 1983,

3. “Whenever the death or personal injury of a citizen of this

State or of the United States, or of any foreign country having

equal treaty rights with the United States on behalf of its citizens,

has been or may be caused by the wrongful act, neglect or default

of another in any foreign state or country for which a right to main-

tain an action and recover damages thereof is given by the statute

or law or such foreign state or country or of this state, such right

of action may be enforced in the courts of this state within the time

prescribed for the commencement of such actions by the statutes of

this state. All matters pertaining to procedure in the prosecution or

maintenance of such action in the courts of this state shall be gov-

erned by the law of this state, and the court shall apply such rules

of substantive law as are appropriate under the facts of the case.”

VERNON’s Tex. Rev. Civ. Stat. art. 4678 (Art. 4678).

4. Gaston v. B.F. Walker, Inc., 400 F.2d 671 (Sth Cir. 1968).

16a

there can be no dispute that the product liability and

negligence actions are time barred under Texas pro-

cedural law.

Johansen contends that the United Kingdom’s three-

year statute of limitation controls. This argument is

based upon the premise that since Judge Justice dis-

missed the original actions against all defendants except

DuPont, he implicitly and necessarily chose United King-

dom law to control this case. This presumption is unlikely

in that since the accident occurred in Libya, Libya ap-

pears to be the site with the most significant relationship

to the accident. Libyan law would normally be the sub-

stantive law to apply in this case.” If there were no cause

of action under Libyan law, or if England had greater

significant contacts with the accident, then the court

might resort to the law of the United Kingdom. But

regardless of the validity of plaintiff's assumption that

Judge Justice chose to follow British substantive law the

United Kingdom’s statutes of limitation do not apply.

British substantive law could only be applicable because

of the last sentence of Art. 4678. The plaintiff states that

the three-year limitation for negligence actions is in-

corporated into the British statute permitting a cause of

action for negligence and is therefore substantive and

controlling. However, even if it is assumed that the sub-

stantive law of the United Kingdom is appropriate, there

has been no adequate showing as to what that law actually

provides. There has been no affidavit or testimony as to

the provisions of the relevant British law. This court is

not prepared to take judicial notice of what the law of

the United Kingdom might be. Because there has been no

5. Gutierrez v. Collins, 583 S.W.2d 312 (Tex. 1979).

17a

adequate showing of what the relevant British limitation

period is, much less that it is substantive in nature, the

Texas two-year limitation controls and bars the actions

for negligence and products liability.

Il. IMPLIED WARRANTY

[2] The Texas Uniform Commercial Code provides

that a cause of action for breach of an implied warranty

must be commenced within four years after the cause of

action has accrued.°® In Garcia v. Texas Instruments, Inc.,

610 S.W.2d 456 (Tex. 1980), the Supreeme Court of

Texas held that a claim for a personal injury arising from

a breach of an implied warranty could be brought within

the four-year limitation period of this section rather than

the two-year period normally set out for personal injuries.

The issue presented is whether the four-year period in

which to commence the suit saves the plaintiff's claim

for breach of implied warranties.

Because the plaintiff's first amended original complaint

was filed on February 6, 1985, the issue as to whether

the two- or four-year limitation applies is moot. The

breach of an implied warranty (and therefore the time

of the accrual of the action) occurs at the time of the

sale of the goods in question.‘ At the latest, the time

of the accrual of the action would be slightly before the

time of the injury. Because the amended complaint was

filed almost five years after the accident, the action for

the implied warranty is time barred under any relevant

statute of limitation.

6. VERNON’s TExAsS CopDES ANNOTATED, BUSINESS AND Com-

MERCE § 2.725 (§ 2.725).

7. Timberlake v. A.H. Robins Co., Inc., 727 F.2d 1363 (5th

Cir. 1984).

18a

However, Johansen asserts that the amended complaint

relates back to the time of the filing of the original com-

plaint, thereby saving his actions for breach of warranty

if the four-year limitation controls. As this argument

goes, the four-year limitation period of § 2.725 would be

applied back from the date of the original complaint,

thereby falling within the permissable period for filing

an action for breach of warranty. The applicable Texas

relation back statute is VERNON’Ss ANNOTATED TEXAS

Civit STATUTES, Article 5539b (Art. 5539), which

in relevant part provides that as long as the original

action is not subject to a plea in limitation, an amend-

ment will not be subject to a plea in limitation. However,

in the present case, the original action was subject to a

plea of limitation, preventing the amended pleading from

relating back. Under similar circumstances, the federal

district court in Powell v. Brantley Helicopters Corpora-

tion, 396 F.Supp. 646 (E.D. Tex. 1975), held that the

amended complaint did not relate back to the time of the

original complaint since the claims in the original com-

plaint were time barred.

The plaintiff attempts to salvage his claim by asserting

that Federal Rule of Civil Procedure 15(c), (Rule 15[c])

provides for relation back of the amendment to the date

of the original pleading despite the fact that the Texas

Statutes do not permit it. There are several Fifth Circuit

cases holding that Rule 15(c) controls in federal diversity

cases despite more restrictive state doctrines.* This line

of decisions is supported by the Supreme Court’s ruling

in Hanna v. Plumer, 380 U.S. 460, 85 S. Ct. 1136, 14

8. See, Skidmore v. Syntex Laboratories, Inc., 529 F.2d 1244

(Sth Cir. 1976). Ca. Anderson v. Papillion, 445 F.2d 841 (Sth Cir.

1971).

ee |

19a

L.Ed.2d 8 (1965), which stated that when a federal

rule actually speaks to a particular point of practice or

pleadings, it governs federal diversity proceedings even

if the state law would yield a different result. This ruling

essentially ended the Erie R. Co. v. Tompkins, supra,

test as to procedural/substantive classification for cases

where the Federal Rules of Civil Procedure is directly

applicable. The outcome determination test of Guaranty

Trust Co. v. York, 326 U.S. 99, 65 S. Ct. 1464, 89 L.Ed.

2079 (1945) was limited in the same type of cases.

Hanna v. Plumer, supra, was clarified by the Supreme

Court in Walker v. Armco Steel Corp., 446 U.S. 740,

100 S. Ct. 1978, 64 L.Ed.2d 659 (1980). In this de-

cision, the Court held that Hanna requires an inquiry

into whether the scope of the federal rule is so large that

it actually conflicts with the state law.? Only where there

is a direct collision between the federal rule and the state

law is a court required to determine whether the federal

rule is within the scope of the Rules Enabling Act, 28

U.S.C. § 2072 (Enabling Act).*° The outcome-determina-

tion test of Erie and York are to be read with reference

to the aims of Erie; discouragement of forum-shopping

and avoidance of inequitable administration of laws.”*

Applying the analysis of Hanna as illuminated by

Walker, this court is of the opinion that Rule 15(c) does

not require the amended complaint to relate back to the

filing of the original complaint. There is no conflict be-

tween Federal Rule 15(c) and Art. 5539b, at least in

the circumstances of this case.

9. Walker v. Armco, 446 U.S. at 749-50, 100 S. Ct. at 1984-85.

10. bid. at 748, 100 S. Ct. at 1984.

11. Ibid. at 747, 100 S. Ct. at 1983.

20a

Rule 15(c) must be examined in context. The Federal

Rules of Civil Procedure were created through Congress’

delegation of authority to the Supreme Court by means

of the Federal Rules Enabling Act. The Enabling Act

states that the federal rules “. . . shall not abridge, en-

large or modify any substantive right . . .”’” In Walker v.

Armco Steel Corp., supra, the Supreme Court required

that a federal mile be tested against both the Rules En-

abling Act and the Constitution.** The authority of a

federal rule cannot be greater than the authority which

gave it being.'* A federal rule is not to be applied to

the extent that it would defeat rights arising from state

substantive law as distinguished from state procedure.*®

With this established, it is clear that Rule 15(c) and Art.

5539b could only conflict over procedural matters, as

Rule 15(c) cannot purport to control substantive matters.

Under relevant state and federal case law, the statute

of limitations contained within § 2.725 of the Texas

U.C.C. is substantive as opposed to procedural. “Where

a statute incorporates a limitation upon the time within

which the suit is to be brought, the limitation qualifies

the right so that it becomes a part of the substantive law

rather than procedural.” State of California v. Copus,

158 Tex. 196, 309 S$.W.2d 227, 231 (1985); Weisz v.

Spindletop Oil and Gas Co., 664 S.W.2d 423 (Tex.

App.—13 Dist. 1983); and Cox v. McDonnell-Douglas

Corp., 665 F.2d 566 (Sth Cir. 1982). Though statutes

12. 28 U.S.C. § 2072.

13. Walker, at 748, 100 S. Ct. at 1984.

14. See, Wright, Miller & Cooper, Federal Practices and Pro-

cedure: Jurisdiction § 4509.

15. Marshall v. Mulrenin, 508 F.2d 39 (1st Cir. 1974).

2la

of limitation are generally classified as procedural, they

are substantive when the limitation provision is itself an

integral part of the statute creating the cause of action.

Gaston v. B.F. Walker, Inc., supra at 673. There can

be no doubt that the four-year limitation period is in-

tegral to the cause of action for breach of warranty,

and this court so holds. Therefore, since Rule 15(c)

~ does not apply because of limitations of the Enabling

Act, Art. 5539b is the only relation back statute avail-

able to the plaintiff. Because Art. 5539b does not apply

when the original claim is time barred, the implied

warranty claim cannot relate back and is itself time

barred.

To hold otherwise would give rise to absurd results.

As stated in 51 Am. Jur. 2d, Limitations of Actions § 15

(1970):

Although the general rule is that a true statute

of limitations extinguishes only the right to enforce

the remedy and not the substantive right itself.

the limitation of time for commencing an action

under a statute creating a new right enters into

and becomes a part of the right of action itself

and is a limitation not only of the remedy but of

the right also; the right to recover depends upon

the commencement of the action within the time

limit set by the statute, and if that period of time

is allowed to elapse without the institution of the

action, the right of the action is gone forever.

(Emphasis added)

See Jamerson v. Miles, 421 F. Supp. 107 (N.D. Tex.

1976). A right of action cannot be gone forever and

then be related back a few years later. To relate the

warranty action back also serves to encourage an in-

22a

equitable administration of laws and fails the outcome

determination test to which Hanna still attached weight.*°

[3] Regardless of the availability of Rule 15(c),

the four-year limitation of § 2.725 is inapplicable in the

case at bar. As previously noted, the Texas conflict of

laws provisions govern this court’s application of law.

Art. 4678 states that a Texas court will apply its own

procedural law and the appropriate substantive law.

Under the laws of the State of Texas, the statute of

limitations in the Texas U.C.C. is substantive and there-

fore will not apply where the injury occurs in a foreign

state or country.’’ Because the § 2.725 statute of limi-

tations is substantive in nature, it will not be applied

as an Art. 4678 procedural matter, and the “time pre-

scribed for commencement” of the action is not the

four-year limitation of § 2.725 but the two-year period

of Art. 5526. Therefore, even if the doctrine of relation

back applied, plaintiff would be no better off.

[4] Johansen falls back to the position that his

original complaint was sufficient to charge DuPont

with a breach of implied warranties. The pleadings of

the case do not support this contention. According to

the plaintiff's original complaint, the lawsuit was “brought

to recover for injuries suffered by the plaintiff.” The

proximate cause of the accident was stated to be the

negligence of the defendants. Alternatively, the gun or

its components were-defective and/or unreasonably dan-

gerous, which was stated to be a producing cause of

the incident.

16. Hanna v. Plumer, supra, 380 U.S. at 473, 85 S. Ct. at 1145.

17. See note 5.

Pe es Con a Te ee Ce ee ee aE

23a

The plaintiff relies on Federal Rule 8 in his attempt

to imclude a breach of implied warranties in his original

complaint. There is no doubt that the original complaint

set out claims for relief as to the negligence and products

liability charges. The issue is whether Johansen set

forth a claim for relief for the alleged breach of implied

warranties. Even under the broad provision of Federal

Rule 8, it cannot be held that the plaintiff met this burden.

In Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99,

102, 2 L.Ed.2d 80 (1957), the U. S. Supreme Court

held that the Federal Rules require a short, plain

statement of the claim that gives the defendant fair notice

as to what the claim is and the grounds upon which

it rests. In the™ present action the original complaint

did not give the required notice. The entire complaint

was worded in terms of negligence and product liability.

Not only were these causes of action specifically named,

but the necessary elements of each were set out. How-

ever, there was no mention of any warranty, implied or

expressed. The only elements of an action for breach

of implied warranties alleged were those which were

necessary to prove one of the other specified causes of

action. Allegations that the defendant manufactured and

sold a dangerous or defective product and that the

plaintiff was injured while using the product were not

sufficient to alert the defendant that the plaintiff was

asserting a claim for relief for a breach of implied

warranties.

Substantial justice does not require that the court

discover unstated claims for relief simply because the

stated claims are barred. Further, it does not require that

the defendant take notice of claims which the plaintiff

does not assert. It does, however, require that pleadings

24a

give some meaningful notice as to the claims involved.

Since the original complaint did not give the required

minimal notice on the breach of implied warranties claim,

substantial justice requires that this court hold that no

such claim arose until the plaintiff filed his amended

complaint.

The court having found that the four-year limitation

of § 2.725 does not save the cause of action for breach

of implied warranties, it is not necessary to examine

the defendant’s contentions that the Texas U.C.C. does

not apply because Texas had no relationship to the

incident and that all warranties were effectively dis-

claimed. DuPont’s motion for summary judgment is

granted as to this claim for relief on the basis that it

is time barred.

Ill. EXPRESS WARRANTY

In his motion to file amended second amended original

complaint, Johansen wishes to assert breach of express

warranty as an additional claim for relief. For the same

reasons that the actions for implied warranties were

not timely acted upon, an action for express warranty

would not be timely. Because all actions based upon

breach of warranties are time barred, the plaintiff's

motion to re-amend his complaint is denied.

Accordingly, this court grants the defendant’s motion

for summary judgment and denies the plaintiff's motion

to file amended second amended original complaint.

Having so ruled, this case is dismissed as there are no

causes of action before the court.

IT IS SO ORDERED.

25a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 85-2835

ROBERT JOHANSEN,

Plaintiff-Appellant,

V.

E.I. DU PONT DE NEMOURS & CO.,

Defendant-Appellee.

ON PETITION FOR REHEARING

(April 14, 1987)

Appeal from the United States District Court for the

Eastern District of Texas

Before GARZA, DAVIS and JONES, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby DENIED.

ENTERED FOR THE COURT:

/s/ W. EUGENE DAVIS

United States Circuit Judge

26a

APPENDIX D

Pursuant to Supreme Court Rule 28.1, Du Pont lists

the following subsidiaries and affiliated companies, other

than wholly owned subsidiaries:

I. COMPANIES 50% OR MORE OWNED BY

DU PONT:

Concord Limited Partnership

Du Pont Canada Inc.

Augusta Natural Gas Limited (inactive)

Canada Development Corporation

Cedarcrest Company Limited (inactive)

CSA Minerals Limited

Du Pont Chemicals & Textiles (B.C. ) Limited

(inactive )

Du Pont Chemicals & Textiles (Eastern) Limited

(inactive )

Du Pont du Quebec Limitee (inactive)

Du Pont of Canada Exploration Limited

Polysar Limited

Du Pont—Idemitsu Co., Ltd.

Du Pont—MGC Co., Ltd.

Du Pont—MRC Company, Ltd.

Du Pont—Mitsui Fluorochemicals Company, Ltd.

Ebina Sangyo K.K.

Du Pont—Mitsui Polychemicals Company, Ltd.

Hi-Sheet Industries, Ltd.

Mitsui Nisseki Polymers Co., Ltd.

Du Pont—Norol Maintenance Services A.S.

Du Pont—Sankyo Pharmaceuticals Co., Ltd.

Du Pont—Showa Denko Co., Ltd.

Du Pont—Toray Company, Ltd.

DUSA

eye

27a

COMPANIES 50% OR MORE OWNED (Cont'd)

DX Imaging

FMC/Du Pont Food Separations, Inc.

NIACHLOR—(New York Partnership)

Nordisk Alkali Biokemi A/S

Oncogenetics Partners (Mass. Partnership)

PD Glycol Limited—(Texas Partnership )

PD Magnetics B.V.

Philips and Du Pont Optical iketecer

(PDO-US) (Delaware Partnership)

Philips and Du Pont Optical Company

(PDO-NL) (Netherlands Partnership )

Philips and Du Pont Optical U.K. Ltd.

Optical Storage International GB

Necesse B.V.

BV1, BV2, BV3, BV4

Philips and Du Pont Optical

Deutschland GmbH

PDO GmbH

Optical Storage International—Holland

PROCOMP (Delaware Partnership)

Showa Neoprene K.K.

Societe En Nom Collectif Du Pont de Nemours

(France) S.A. et Rhone-Poulenc Industries

(“Butachimie SNC” )—( Partnership )

Il. OTHER AFFILIATED COMPANIES:

Aviones B.C., S.A. de C.V.

~ Avtek Corporation

Biotech Research Laboratories, Inc.

Cine Film Systems

28a

OTHER AFFILIATED COMPANIES (Cont'd)

Delaware River Cooperative (Partnership)

Derivados Sinteticos, §.A. de C.V. (inactive)

Dunlena Pty. Limited Australia

EPIC Insurance Company, Inc.

Gemeinnutzige Wohnungsbau GmbH

Greyhawk Systems, Inc.

Haemonetics Corporation

HEM Research, Inc.

ImagiTex Incorporated

Ingenieurgesellschaft Fur Agragtetechnik GmbH

La Domincia, S.A. de C.V.

Geomina S.A.

Laserscope Biomedical Corporation

Molecular Biosystems, Inc.

Nylon de Mexico, S.A.

Inser S.A.

Univex, S.A.

Perceptive Systems Incorporated

POC Research (Partnership)

Quimica Fluor, S.A. de C.V.

Reactivos Minerales Mexicanos S.A. de C.V.

Tetraetilo de Mexico, S.A.

Thapur—Du Pont Limited

TVS Du Pont Electronics Ltd. -

Wilmington Trust Company

29a

Ill. LESS THAN WHOLLY OWNED SUBSIDIARIES

DIRECTLY OR INDIRECTLY OWNED BY DU

PONT’S WHOLLY OWNED SUBSIDIARY CONO-

CO DELAWARE, INC:

Subsidiary

Big Sky of Montana Realty, Inc.

Cit-Con Oil Corporation

Coman I Limited (Partnership)

Coman II Limited (Partnership) -

Coman III Limited (Partnership )

Conch International Methane Ltd.

Du Pont Scandinavia AB

AB Branslecentralen

ARA Aktiebolag

ARA Bolagen AB

ARA Fotogenservice AB

ARA Gavle AB

ARA Jonkoping AB

ARA Norrkoping AB

Conara AB

Jet Trading AB

Svenska Kol ARA AB

Vaermecenter Sven Meijer Aktiebolag

T.A.L.

A.C.E. Insurance Co.

EXEL Limited

Khalda Petroleum Co.

Geisum Oil Co.

Conoco Exploration, Ltd. (Partnership)

Continental Oil Limited (Partnership)

Societue du Pipeline Sud-Europueenne

VV

30a

Subsidiary (Cont'd)

T.A.L.

K/S Stratfjord Transport A.S. & Co.

Stratfjord Transport A.S.

Cardinal River Coals, Ltd.

Neptune Bulk Terminals (Canada) Ltd.

Mathies Coal Co.

Tongue River Holdings, Inc.

Tongue River Railroad (Partnership )

Ameropa Coal Trading and Shipping, Inc.

Oasis Oil Co. of Libya, Inc.

Colonial Pipeline Company

Milne Point Pipe Line Company (Partnership)

Dixie Pipeline Company

Explorer Pipeline Company

Lake Charles Pipe Line Company

Pioneer Pipe Line Company

Platte Pipe Line Company

Yellowstone Pipe Line Company

Felix Oil Company

Jupiter Chemical Inc.

Kettleman North Dome Assoc.

Long Beach Oil Deleopment Company

Oberrheinische Mineraloelwerke GmbH (OMW)

Petco Enterprises Ltd.

Petrocokes, Ltd.

Petroleum Terminals, Inc.

Iranian Investment Corp.

Iranian Oil Participants Ltd.

Iranian Oil Services (Holdings) Ltd.

Iricon Agency, Ltd.

3la

Subsidiary (Cont'd)

Southern Facilities, Inc.

The Standard Shale Products Company

Tidelands Royalty Trust

Associated Petroleum Terminals Ltd.

Benzene Marketing Co. Ltd.

BT&D Technologies

Cliffe Storage Ltd.

Crude Oil Terminals (Humber) Ltd.

Humber Oil Terminals Trustee Ltd.

Petroleum Storage Ltd.

Warwickshire Oil Storage Ltd.

K/S Stratfjord Transport A.S. & Co.

Stratfjord Transport A.S.

IV. The Seagram Company Ltd., through its wholly

owned subsidiary companies, owns approximately

22% of Du Pont Common Stock. However, Du Pont

does not consider itself to be an affiliate of Seagram

because Seagram does not have the actual power to

directly or indirectly control Du Pont.