* Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

______________________________________

No. 98-30473

Summary Calendar

______________________________________

WENDY WHITE,

Plaintiff-Appellant,

versus

STATE OF LOUISIANA, et al,

Defendants,

STERLEN STEVENS; TRANSIT MANAGEMENT 

OF SOUTHEAST LOUISIANA, INC.,

Defendants-Appellees.

_____________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(97-CV-3169-F)

_____________________________________________

April 9, 1999

Before JOLLY, SMITH, AND WIENER, Circuit Judges. 

PER CURIAM:*

Plaintiff-Appellant Wendy White appeals the district court’s

denial of her motion to amend her complaint, effectively dismissing

her suit. Concluding that White’s attempted amendment of her

complaint did not “relate back” to the filing of her original

complaint under Federal Rule of Civil Procedure 15(c) and thus

escape the effects of Louisiana’s one-year prescriptive period for
2

tort claims, we affirm.

I.

Facts and Proceeding

On October 8, 1997, White filed suit under Title VII of the

Civil Rights Act of 1964 against Defendant-Appellees Sterlen

Stevens, the State of Louisiana, and Regional Transit Authority

(“RTA”), a political subdivision of Louisiana, alleging that, on

October 14, 1996, Stevens touched her in an offensive, sexual

manner. White served the defendants with process on December 3,

1997. Soon thereafter, White amended her complaint to add Steven’s

employer, Transit Management of Southeast Louisiana, Inc. (“Transit

Management”), as a defendant.

Stevens, the RTA, and Transit Management moved to dismiss

White’s complaint for lack of subject matter jurisdiction, arguing

that none of the defendants was White’s employer and that White had

failed to exhaust her administrative remedies. The district court

granted the motion on both grounds. In January 1998, prior to the

court’s grant of the defendants’ motion to dismiss, but over a year

after the alleged conduct of which White complains allegedly took

place, White moved for leave to amend her complaint for a second

time. Specifically, White sought to drop her Title VII claims and

allege instead that Stevens had committed an intentional tort in

the course and scope of his employment of which Transit Management

knew or should have known. The magistrate judge recommended that

the motion be granted, and the defendants timely objected. The

district court, on review, determined that White’s claim had
 

2Davis v. United States, 961 F.2d 53, 57 (5th Cir. 1991).

 

3Id.

3

prescribed as a matter of law and, therefore, denied the motion. 

White moved for a rehearing, claiming that, under Rule 15(c),

her amended complaint should “relate back” to the date of her

original pleading and thus not run afoul Louisiana’s prescriptive

period. The district court denied the motion, which it treated as

a motion to alter or amend under Federal Rule of Civil Procedure

59(e), holding that the amended complaint could not relate back to

an original pleading that had already been dismissed for lack of

subject matter jurisdiction. White timely filed an appeal from the

district court’s order denying her motion to amend her complaint.

White did not appeal the district court’s order granting the

defendant’s motion to dismiss for lack of subject matter

jurisdiction. 

II.

Analysis

A. Standard of Review

We review a district court’s denial of a motion to amend for

abuse of discretion.2 In exercising its discretion, a district

court may consider a variety of factors, including the futility of

the amendment.3

B. Merits

White’s argument falls short for precisely the reasons set

forth by the district court. Louisiana law establishes a one-year
 

4La. Civ. Code. Ann. art. 3492.

 

5Id.

 

6See Washington v. Breaux, 782 F.2d 553, 554-55 (5th Cir.

1986) (holding that, under Louisiana law, filing suit in court

without jurisdiction does not interrupt prescriptive period).

 

7The federal relation back rule set forth in Rule 15(c)

violates neither the Rules Enabling Act nor the Constitution and,

therefore, applies in federal court in diversity cases controlled

by state law. Johansen v. E.I. Dupont de Nemours & Co., 810 F.2d

1377, 1379 (5th Cir. 1987).

 

8748 F.2d 291 (5th Cir. 1984).

4

prescriptive period for intentional tort claims.4 To interrupt

prescription, a plaintiff must either file suit in a court of

competent jurisdiction and venue or, “[i]f action is commenced in

an incompetent court, . . . prescription is interrupted only as to

a defendant served by process within the prescriptive period.”5

White did not file suit in a competent court.6 Neither did

she serve the defendants within the one year prescriptive period.

Therefore, unless White’s attempted amendment of her complaint

relates back to the time of her original filing, her claim is

prescribed under Louisiana law.7 As the district court held,

however, White’s amended complaint could only relate back to an

original pleading that had already been dismissed for lack of

subject matter jurisdiction. In Reynolds v. United States,

8 we

confronted this exact issue. There, the plaintiff filed suit

against the United States under the Federal Tort Claims Act

(“FTCA”) prior to receiving written notice of final denial of her

claim by the appropriate federal agency —— a jurisdictional
 

9Id. at 292.

 

10Id.

 

11Id. at 293.

5

requirement of the FTCA.9 With leave of the court, the plaintiff

filed an amended complaint, which the district court dismissed

because the relevant limitations period had run.10 In rejecting the

plaintiff’s argument that, under Rule 15(c), the amended complaint

should have related back to the date she properly served the

defendants, we stated “[f]iling on a date which the court lacked

jurisdiction, [the plaintiff’s amended complaint] related back to

a date on which the court also lacked jurisdiction.”11 Here, as in

Reynolds, White’s amended complaint could only relate back to a

date on which the court lacked jurisdiction. White’s proposed

amendment was thus futile, and the district court’s dismissal of

White’s amended complaint was not an abuse of discretion.

AFFIRMED.