Johnson v. Carrier Corporation ( 2001 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 00-41273
(Summary Calendar)
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LAVERNE JOHNSON,
Plaintiff - Appellant,
versus
CARRIER CORPORATION,
Defendant - Appellee.
Appeal from the United States District Court
For the Eastern District of Texas
6:99-CV-523
June 28, 2001
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Laverne Johnson appeals from the district court’s dismissal of her 42 U.S.C. § 1981 and
related state law claims of racial and disability discrimination by her employer, Carrier Corporation.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
The district court found that the statute of limitations on Johnson’s § 1981 claim had run before she
filed the instant lawsuit, and that the court accordingly lacked pendant jurisdiction over the state law
claims. We affirm.
Johnson was terminated from her employment in March of 1997. This lawsuit was filed on
September 8, 1999, outside the two-year statute of limitations established under Texas law for
personal injury claims and borrowed in federal court for § 1981 claims. See Tex. Civ. Prac. & Rem.
Code Ann. § 16.003; National Ass’n of Government Employees v. City Pub. Serv. Bd. of San
Antonio, 40 F.3d 698, 713 n.22 (5th Cir. 1994). The o nly issue on appeal is whether Johnson is
entitled to toll the statute of limitations. She contends that (1) the limitations period should be tolled
because she filed an initial lawsuit against Carrier within the limitations period; (2) she was compelled
to seek union-initiated arbitration under a Collective Bargaining Agreement with Carrier prior to
initiating any legal action; and (3) she is entitled to equitable tolling of the limitations period.
Johnson’s first suit against Carrier was dismissed without prejudice for failure to effectuate
service on Carrier for over two years after the filing of the suit. We agree with the district court that
the filing of this suit did not toll the limitations period. See Hawkins v. McHugh, 46 F.3d 10,10 (5th
Cir. 1995) (holding that dismissal without prejudice for untimely service in a § 1983 case did not toll
the statute of limitations period under Louisiana law). Johnson appears to argue that Texas law
explicitly provides for the tolling of the limitations period in this case, direct ing us to Texas Civil
Practice & Remedies Code § 16.064.1 Section 16.064 provides that
1
Johnson’s brief actually cites § 16.063, the tolling provision dealing with the
temporary absence of a potential defendant from the state. As Johnson has never alleged that Carrier
Corporation left Texas for any period of time, we believe the section she intended to reference is §
16.064.
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The period between the date of filing an action in a trial court and the date of a second
filing of the same action in a different court suspends the running of the applicable
statute of limitations for the period if: (1) because of lack of jurisdiction in the trial
court where the action was first filed, the action is dismissed or the judgment is set
aside or annulled in a direct proceeding; and (2) not later than the 60th day after the
date the dismissal or other disposition becomes final, the action is commenced in a
court of proper jurisdiction.
By its plain terms, § 16.064 applies only to an action that is refiled in a “different court.” Both of
Johnson’s filings, however, were filed in the district court for the Eastern District of Texas.
Accordingly, the two-year limitations period was not tolled by Johnson’s initial filing.
Johnson maintains that, alternatively, the limitations period was tolled because she was
“arguably compelled to proceed with [] arbitration prior to initiating any legal action.” As the district
court held, however, arbitration under a collective bargaining agreement is not a precondition to an
individual discrimination suit, and thus does not toll the limitations period. See Alexander Gardner-
Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974).
Finally, Johnson asserts that she should be accorded equitable tolling because “she has
pursued her claims in every forum available.” We decline to toll the limitations on this basis,
however, as Johnson has provided no explanation for her initial dilatoriness in serving Carrier, nor
for her failure to pursue this claim during the pendency of the arbitration. Cf. Carimi v. Royal
Carribean Cruise Linc, Inc., 959 F.2d 1344, 1348-49 (5th Cir. 1992) (suggesting the tolling of the
limitations period on remand where the plaintiff “had good cause for not effecting valid service within
120 days, and indeed had good cause to think that he had done so.”).
AFFIRMED.
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