United States Court of Appeals

for the Fifth Circuit

No. 20-30193

Damon Ryan; Brian Bilbo, 

Plaintiffs—Appellants,

versus

Phillips 66; Westlake Chemical Corporation, 

Defendants—Appellees,

consolidated with

_____________

No. 20-30195

_____________

Greg Harrison; Brian Thomas; Skipper Thomas, Jr., 

Plaintiffs—Appellants,

versus

Phillips 66; Westlake Chemical Corporation, 

Defendants—Appellees.

United States Court of Appeals

Fifth Circuit

FILED

December 14, 2020

Lyle W. Cayce

Clerk

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Appeal from the United States United States District Court

for the Western District of Louisiana

USDC No. 2:19-CV-1095

USDC No. 2:19-CV-1092

Before Stewart, Duncan, and Wilson, Circuit Judges.

Per Curiam:*

In these two consolidated cases, Plaintiffs-Appellants Damon Ryan 

and Brian Bilbo (“Ryan Plaintiffs”), as well as Greg Harrison, Brian Thomas, 

and Skipper Thomas (“Harrison Plaintiffs”), appeal the district court’s 

judgments in a workplace tort claim. The district court granted DefendantAppellee Westlake Chemical Corporation’s motions to dismiss and denied 

Plaintiffs’ motions for reconsideration. We AFFIRM.

I. Facts & Procedural History

Plaintiffs all allege that they suffered injuries as a result of a power 

outage on August 22, 2018. This power outage allegedly caused facilities 

operated by Phillips 66 and Westlake Chemical Corporation to release 

chemicals into the air. At the time of the accident, all plaintiffs were working 

at a plant owned by Sasol North America. The Ryan Plaintiffs were employed 

by Cajun Industries L.L.C., and the Harrison Plaintiffs were employed by 

Turner Industries Group. 

On August 20, 2019, the Ryan Plaintiffs filed a federal lawsuit against 

Phillips 66, Westlake, Sasol North America, and Cajun Industries. On the 

same date, the Harrison Plaintiffs filed a similar lawsuit against the same 

defendants, except Cajun Industries was replaced by Turner Industries in 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

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that suit. None of these defendants were served in either case until 

September of 2019. 

In the Ryan suit, Cajun Industries, a Louisiana citizen like the 

Plaintiffs, moved to dismiss under Fed R. Civ. P. 12(b)(1) for lack of 

subject matter jurisdiction because Cajun was a non-diverse defendant. In the 

Harrison suit, Turner Industries filed an answer noting that it was a Louisiana 

corporation and pointing out that Plaintiffs did not allege their citizenship. 

All the plaintiffs filed motions to voluntarily dismiss Cajun Industries, 

Turner Industries, and Sasol North America (which had unknown 

citizenship) in order to ensure subject matter jurisdiction. Plaintiffs in both 

cases then amended their complaints to clarify that Westlake and Phillips 66 

were the only remaining defendants. 

In both cases, Westlake then filed a motion to dismiss under Fed. R. 

Civ. P. 12(b)(6), claiming that the suit was “prescribed,” or time-barred. 

The district court agreed and granted Westlake’s motions. Plaintiffs in both 

cases moved for reconsideration. The district court denied their motions, 

refusing to consider arguments that Plaintiffs had failed to raise previously.

Plaintiffs now appeal.

II. Standard of Review

We review a district court’s grant of a motion to dismiss de novo. See 

Firefighters’ Ret. Sys. v. Grant Thornton, L.L.P., 894 F.3d 665, 669 (5th Cir. 

2018). A court may dismiss an action under Rule 12(b)(6) if “it is evident 

from the plaintiff’s pleadings that the action is [time-]barred and the 

pleadings fail to raise some basis for tolling[.]” Jones v. Alcoa, Inc., 339 F.3d 

359, 366 (5th Cir. 2003). The standard of review for a denial of a motion for 

reconsideration is for abuse of discretion. McClendon v. United States, 892 

F.3d 775, 781 (5th Cir. 2018). 

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III. Discussion

(i) Prescription

Plaintiffs argue that their claims are not prescribed. In Louisiana, 

“liberative prescription” is a method of barring a claim after a certain amount 

of time that is akin to a statute of limitations. La. Civ. Code art. 3447. 

Tort claims must be brought within a year of the day of injury. Id. art. 3492. 

Prescription can be “interrupted,” which stops the running of the clock, 

“when the obligee commences action against the obligor, in a court of 

competent jurisdiction and venue.” Id. art. 3462. An action commenced in 

an “incompetent” court only interrupts prescription as to defendants served 

within the prescriptive period. Id. The district court granted Westlake’s 

motions to dismiss, noting that no defendant was served within the one-year 

limitations period and that the court’s initial lack of subject matter 

jurisdiction prevented the lawsuit from interrupting prescription.

Plaintiffs contend that their amended complaint, in which there is 

complete diversity, relates back under Fed. R. Civ. P. 15(c) to the date of 

the filing of the original complaint, which was within the prescriptive period. 

They argue that this original complaint effectively interrupted prescription. 

We disagree. Under Fed. R. Civ. P. 15(c), an amended complaint relates 

back to the date of the original pleading when “the amendment asserts a 

claim or defense that arose out of the conduct, transaction, or occurrence set 

out—or attempted to be set out—in the original pleading.” Plaintiffs’ 

amended complaints do successfully assert claims arising out of the same 

occurrence described in the original pleadings. However, Rule 15 was not 

designed to cure a failure to effect proper service of process.

“When sitting in diversity, we apply the state’s statutes of limitation 

and accompanying tolling rules.” Bloom v. Aftermath Pub. Adjusters, Inc., 902 

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F.3d 516, 517 (5th Cir. 2018). Louisiana’s prescription statute is clear that if 

a claim is filed in an “incompetent” court, prescription is interrupted “only 

as to a defendant served by process within the prescriptive period.” La. 

Civ. Code art. 3462. An incompetent court includes one that lacks subject 

matter jurisdiction. See La. Code Civ. Proc. art. 5251(4). The federal 

district court where Plaintiffs filed their case initially lacked subject matter 

jurisdiction and was therefore incompetent. Under the statute, Plaintiffs 

were required to serve defendants within one year of the incident. 

The statute does not allow plaintiffs to cure initial incompetence in 

order to negate the service requirement. This is evident from the text of the 

statute itself, as well as from Louisiana state court cases. For example, in

Rasheed v. Pace, 489 So.2d 488, 488–89 (La. Ct. App. 1986), plaintiffs filed 

suit against several defendants, including a municipality. They did so in a city 

court, which lacked subject matter jurisdiction over municipalities. Id. The 

dismissal of the municipality from the action “did not cure the situation” and

the court held that the claim was prescribed because defendants were not 

served within the one-year period. Id. Rule 15 cannot circumvent Louisiana’s 

statutory requirement of either filing in a court of competent jurisdiction or 

serving defendants within one year. While Rule 15 is an appropriate vehicle 

to “remedy inadequate jurisdictional allegations, it cannot remedy defective 

jurisdictional facts.” See Whitmire v. Victus Ltd., 212 F.3d 885, 888 (5th Cir. 

2000)(also noting that “[t]he danger against which a court must guard is that 

a party will attempt to use [relation back] to retroactively create subject 

matter jurisdiction”) (internal quotation marks omitted); see also White v. 

Louisiana, 178 F.3d 1291, at *2 (5th Cir. 1999) (unpublished) (holding relation 

back to be futile as the proposed amendment “could only relate back to a date 

on which the court lacked jurisdiction”). 

Plaintiffs rely on Brown v. Texas & P.R. Co., which held that an 

amended complaint that cures an initial lack of subject matter jurisdiction 

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relates back to the filing of the original complaint and therefore interrupts 

prescription. 392 F. Supp. 1120, 1124–25 (W.D. La. 1975). We disagree with 

the district court’s conclusion in that case for the aforementioned reasons 

and we decline to follow it here. Plaintiffs also point to Ray v. Alexandria Mall, 

434 So.2d 1083, 1084 (La. 1983), which held that a plaintiff’s amended 

petition reflecting the proper defendant related back under Louisiana’s 

relation back statute and was therefore within the prescriptive period. 

However, that case dealt with a situation where there was a mistake of 

identity regarding the proper defendant. Id. The court noted that the 

Louisiana statute was analogous to Rule 15 and noted that the mistaken 

identity situation was of the type intended to be remedied by Rule 15. Id. at 

1087. That case is therefore inapplicable.

While Rule 15 could apply procedurally to allow an amended 

complaint such as this one to relate back in some cases, Rule 15 was not 

designed to supersede substantive service of process requirements. The 

district court was correct in holding that the amended complaint did not 

relate back in this case. 

(ii) Denial of the Motion for Reconsideration

Plaintiffs contend that the district court erroneously denied their 

motions for reconsideration, as the arguments raised therein have merit, 

although they were not raised previously. The district court considered their 

motions under Fed. R. Civ. P. 59(e) and 60(b). These rules are “not the 

proper vehicle for rehashing evidence, legal theories, or arguments that could 

have been offered or raised before the entry of judgment.” Templet v. 

HydroChem Inc., 367 F.3d 473, 479 (5th Cir. 2004). Because the claims 

against Phillips 66 remained pending, the district court’s dismissal of 

Westlake was interlocutory in both cases. Fed. R. Civ. P. 54(b) governs 

review of interlocutory orders. While Rules 59(e) and 60(b) “do[] not permit 

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consideration of arguments that could have been raised previously,” Rule 

54(b) permits the district court “to reconsider and reverse its decision for 

any reason it deems sufficient.” McClendon, 892 F.3d at 781. Normally, 

“when a district court applies the more stringent Rule 59(e) standard in 

denying a motion to reconsider an interlocutory order, we must vacate and 

remand for the district court to reconsider the motion for reconsideration 

under the more flexible Rule 54(b).” Id. (cleaned up).

However, Plaintiffs never argued on appeal that the district court 

applied the wrong standard.

1 Issues not briefed on appeal are abandoned. See 

Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994). As this claim is forfeited, 

we hold that the district court did not abuse its discretion in denying 

Plaintiffs’ motion for reconsideration.

IV. Conclusion

For the aforementioned reasons, we AFFIRM the district court’s 

grant of Westlake’s motions to dismiss and denial of Plaintiff’s motions for 

reconsideration.

1 Additionally, while Plaintiffs mentioned Rule 54 in passing in their motions for 

reconsideration, all Plaintiffs entitled their motions for reconsideration “Memorandum in 

Support of Motion to Alter or Amend Judgment Pursuant to Fed. R. Civ. P. Rule 

59(e).” 

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