### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-30205 Summary Calendar

FRANCES CARNER, Plaintiff - Appellant
v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY, doing business as BlueCross BlueShield of Louisiana, Defendant - Appellee

Appeal from the United States District Court for the Middle District of Louisiana, Baton Rouge

USDC No. 3:10-CV-557

Before KING, JOLLY, and GRAVES, Circuit Judges. PER CURIAM: * Plaintiff-Appellant Frances Carner, a former employee of DefendantAppellee Louisiana Health Service & Indemnity Company, d/b/a Bl u eCross BlueShield of Louisiana, brough t a lawsuit against BlueCross BlueShield of Louisiana alleging both federal and state claims, including retaliation, hostile work environment, and constructive discharge. C a rner appeals the district U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 3, 20 11 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-30205 Document: 00511619971 Page: 1 Date Filed: 10/03/2011court’s grant of Bl u e C r o ss BlueShield of Louisiana’s motion for summary

judgment with respect to her post-employment retaliation claims. For the following reasons, we affirm the district court’s judgment. I. Background Frances Carner (“Carner”) wa s a n employee of BlueCross BlueShield of Lou i s i a n a (“BCBSLA”) from March 2007 until she resigned on July 24, 2009. According to Carner, beginning i n Ap ril 2 008, BCBSLA employees pressured her to violate state and federal trade secret laws. Car n e r a l l e ges that, after she refused to comply with these demands and the n r e p o r ted her concerns to BCBSLA officials, BCBSLA employees persistently retaliat e d a g ainst her. Carner claims that she felt compelled to resign as a result of the retaliation. On July 23, 2010, Carner filed a petition for damages against BCBSLA in the 21 Judicial District Court, Livingston Parish, Louisiana. She asserted the

st

s t at e - l aw c l ai m s o f r e taliation, hostile work enviro n m e nt , c o n s tru c tiv e di s ch ar ge , i nt e ntio n al infliction of emotional distress, and defamation. Carner also brought

a claim under 42 U.S.C. § 1983 based on a n a l leged violation of her First Amendment rights. BCBSLA was served by process on Au gu s t 5, 2010. On August 26, 2010, BCBSLA timely removed the action to the U.S. District Court for the Middle District of Louisiana. On October 22, 2010, Carner amended her pet i t i o n to add additional claims, such as a violation of the Louisiana Whistleblower Statute, La. Rev. Stat. Ann. § 23:967. On November 18, 2010, the parties f i l e d a Status Report in the district court. I n t h e report, BCBSLA stated that it anticipated filing a summary judgment motion on the basis of prescription, service, and venue. Carner agreed not to “seek to comp el initial disclosures at this time so long as defendant’s Motion for Summary Judgment is limited to its assertions of prescription and filing/service only.”

2 Case: 11-30205 Document: 00511619971 Page: 2 Date Filed: 10/03/2011On Decembe r 2 , 2010, BCBSLA filed a motion for summary judgment,

asserting that Carner’s claims were prescribed due to her failure to file suit in

a proper venue and to serve BCBSLA wit h i n t he one-year prescriptive period. On Jan u a ry 1 8, 2011, Carner filed a memorandum in opposition to BCBSLA’s
summary judgment motion, arguing that her claims were not prescribed , because B C B S LA’ s ac t s o f p o s t

- e m p l o y m e nt r e t ali ati o n e xt e n d ed the prescriptive period. The district court granted BCBSLA’s summary judgment motion, stating t hat all of Carner’s claims were prescribed. Because Carner “produced no evidence that Defendant continued to retaliate against her by refusing to verify her employment to prospective employers,” th e di s trict court found that Carner’s last injury was sustained on July 24, 2009. Therefore, due to Carner’s failure to file suit in the proper venue and to serve B C B S LA within the prescriptive period, the district court held that Carner’s claims were prescribed. On appeal, Carner contends that the district court erred in dismissing her post-employment retaliation claims. II. Discussion We review a district court’s grant of summary judgment de novo , applying the same standard as the district court. Turner v. Baylor Richardson Med. Ctr. , 476 F.3d 337, 343 (5th Cir. 2007). Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law. ” A “ g e n u i ne” dispute exists if, based on the evidence, a reasonable jury could return a verdict for the nonmoving party. Hamilton v. Segue Software Inc. , 232 F.3d 473, 477 (5th Cir. 2000). When reviewing a summary judgment, we “draw all reasonable inferences in favor of the nonmoving party.” Turner , 476 F

. 3 d a t 343 (citations and internal quotation marks omitted).

3 Case: 11-30205 Document: 00511619971 Page: 3 Date Filed: 10/03/2011In its mot i on for summary judgment, BCBSLA contended that all of

Carner’s clai m s were prescribed. Under Louisiana Civil Code Article 3492, delictual act i o n s are subject to a one-year prescriptive period, which begins to

run from the date of injury. Al l o f C a r n e r’s claims against BCBSLA are delictual, including her 42 U.S.C. § 1983 claim, which under Wilson v. Garcia , 471 U.S. 261, 279 (1985), is characterized as a p e r s o n al injury action and therefore subject to the relevant state prescription p e r i o d

. Pursuant to Louisiana Civil Code Article 3462, prescription is interrupted when the plaintiff files suit within the prescriptive period “in a court of competent jurisdiction and venue.” However, if the “action is commenced in an incompetent court, or in an improper venue, prescription is interrupted on l y a s t o a defendant served by
process within the prescriptive period.” La. Civ. Code Ann. art. 3462 (2011); see also Doe v. Delta Women’s Clinic of Baton Rouge , 37 So. 3d 1076, 1079 (La. Ct. App. 1 Cir. 4/30/10). In the instant case, Carner conced e s that she filed suit in an improper

venue. Under Louisiana law, a lawsuit against a domestic corporation “shall be brought in the parish where its registered office is located.” La. Code Civ. Proc. Ann. art. 42(2) (2011); see also Schiro v. Liljeberg Enters., Inc. , 703 So. 2d 780, 782 (La. Ct. App. 5 Cir. 11/25/97). Here, BCBSLA maintains its registered office in East Baton Rouge Parish. On July 23, 2010, Carner filed suit in Livingston Parish, an improper venue. Because Carner filed suit in an improper venue, prescription would only be interrupted i f s h e served the defendant during the one-year prescriptive period. It i s undisputed that Carner served BCBSLA on August 5, 2010. BCBSLA argued, and the district court found, that Carner’s last injury was on July 24, 2 0 0 9 , the date that she was allegedly constructively discharged. Therefore, the prescriptive period began to run on July 24, 2009, and ended on July 24, 2010. Because BCBSLA was not served by process until August 5, 2010,

4 Case: 11-30205 Document: 00511619971 Page: 4 Date Filed: 10/03/2011after the prescriptive period had run, the district court found that all of Carner’s

claims were prescribed. On appeal, Carner concedes that the district court was correct in holding that her claims arising prior to July 24, 2009, were prescribed. However, Carner asserts on appeal that the district court erred in dismissing her postemployment retaliation claims. For the reasons discussed below, w e conclude that the district court did not err in dismissing Carner’s post-employment retaliation claims. Carner argues on appeal that the district court acted in contravention of the terms of the Status Report, by considering the underlying merits of her postemployment retaliation claims instead of dealing sole l y with the issues of prescription, venue, and service. However, we find that the district court did abide by the terms of the Status Report. The Status Report limited BCBSLA’s
summary judgment motion to the issues of p r e s c r i ption, venue, and service. Consistent with the Status Report, BCBSLA moved for summary judgment on all of Carner’s claims based on prescription. BCBSLA argued in its summary judgment motion that all of Carner’s claims stemmed from her employment with B C B S LA, which ended on July 24, 2009. Therefore, because the prescriptive period began to run on July 24, 2009, all of Carner’s claims were prescribed. Aware that the date of her injury was an important factor in the analysis of prescription and that all of her claims were in peril of being dismissed, Carner argued in her memorandum in opposition to BCB S LA’ s motion for summary judgment (“oppos i t i on memorandum”) that her post-employment retaliation

c l ai m s e xt e nded the prescriptive period. In her opposition m e m o r a n du m , C arn e r acknowledged that she had only briefly mentioned these claims in two paragraphs of her original petition. Carner reiterated th ese claims in her 1

For ins tanc e, in par agrap h 35 of her pet itio n for dam ages , Carner allege d that , aft er 1 her res ignati on, “bas ed on kn ow led ge, info rm atio n and belie f, pot enti al em plo yers have been unable to rec eive verif icat ion of em plo ymen t and/ or a favor able job ref ere nce fr om o f

f i cial s 5 Case: 11-30205 Document: 00511619971 Page: 5 Date Filed: 10/03/2011opposition memorandum, stating that after her resignation, BCBSLA refused to

provide verification of her employment to prospective employers. Additionally, Carner made the general allegation in her opposit i o n memorandum that “BCBSLA’ s retaliation has been a continuous and sustained adverse action towards Ms. Carner” that persisted through July 2010. However, Carner failed t o p r ovide the district court with any evidence supporting these post-employment retaliation claims. After a movant has met its in i t i a l b u r den of demonstrating the absence of a genuine issue of material fact, in order to defeat su m m a r y judgment, the nonmoving party must “designate specific facts showing that there is a genuine issue for trial.” Little

v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5t h C i r . 1 9 9 4) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986)). “This burd e n i s not satisfied with ‘some metaphysic a l d o ubt as to the material facts,’ by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintil l a ’ o f e vidence.” Id. (citations omitted). We have stated that the court does not, “in the absence of any proof,

assume that the nonmoving party could or would prove the necessary facts.” Id. In order to defeat summary judgment, then, Carner w as required to put forward specific facts demonstrating that there was a genuine issue of material fact for trial regarding the prescription of her claims. Thus, Carner was required to come forwar d w ith evidence regarding BCBSLA’s alleged post-employment retaliation in order to create a genuine dispute about the date of her last injury. However, Carner’s assertions about BCBSLA’s post-employment retaliation in her opposition memorandum are merely conclusory allegations and unsubstantiated assertions. Carner provided the district court with no specific 2

wi th BCBSLA wh ich has lead [s ic] to the pet itio ner ’ s d iff icult y in se cur ing com par able em plo ymen t in her fie ld. ”
For ins tanc e, muc h of Carner ’s opp os itio n me mo rand um cons ist ed of st atem ents suc h 2
as the fol low ing, pr es e n t e d wi thou t any sp ecif ic fac tual sup por t: “The def enda nt’ s adver se act ions /r etal iato ry cond uct tow ard the plainti ff did not end on July 24, 2010 [s ic 2009] , sad ly 6 Case: 11-30205 Document: 00511619971 Page: 6 Date Filed: 10/03/2011facts, in the pleadings or otherwise, to support her post-employment retaliation

claims. The district court corre c t l y n oted that Carner “produced no evidence that Defendant continued to retaliate a gainst her by refusing to verify her employment to prospective employers.” Therefore, the district court properly concluded that Carner’s l ast injury was sustained on July 24, 2009, and that BCBSLA was entitled to judgment as a matter of l a w b e c a u se all of Carner’s claims were prescribed. Carner further argues on a p peal that, because the parties agreed in the S t a t u s Report to delay discovery until after the district court’s ruling o n BCBSLA’s summary judgment motion, the distr i c t c o urt should not have d etermined whether there was a genuine dispute regarding he r p o s t

e m p l o y m e nt r e t ali atio n c l aims. Carner contends that, as discovery was def e rr e d , the district court should have known that she was unable to set forth any facts regarding her post-employment retaliation claims. On appeal, Carner points to Federal Rule of Civil Procedure 56(d) to support her argument. H o w ever, 3 Carner should have been aware of her burden in opposing BCBSLA’s motion for
summary judgment, and, if she determined that she lacked the ability to produce facts, she should have made a motion under Rule 56(d) to the district court. We have stated that our “court has foreclosed a party’s contention on appeal that it had inadequate time to marshal evidence to defend against summary judgment when the party did not seek Rule 56(f) [now rule 56(d)] rel i e f b e f ore the
summary judgment ruling.” Tate v . S t a rks , No. 09-60384, 2011 U.S. App. 4

it has be en an o ngoing ente rp ris e.”
Fede ral Rule of Civil Proc edur e 56(d) st ates that “[ i]f a nonm ovant sho ws by aff idavit 3
or dec larat ion that , for sp ecif ied reas ons , it canno t pr es ent fac ts es s e ntial to just ify its opp os itio n, the cour t may: (1) def er cons ide ring the mo tio n or deny it; (2) allow tim e to obta in aff idavit s or dec larat ions ort o t ak e d isc overy; or( 3) iss ue any o therap pr opr iateor der .”
Rule 56 wa s ame n d e d in 2010, and the advis ory com mi tte e note s to the 2010 4
ame ndm ents st ate that “Subdivis ion (d) car r i es for wa rd wi thou t sub st antia l change the pr ovis ions of

f orm er sub divis ion (f

). ” Fed

. R. Civ. P. 56(d) advis ory com mi tte e’s no te.

7 Case: 11-30205 Document: 00511619971 Page: 7 Date Filed: 10/03/2011LEXIS 12686, at *30 n.12 (5th Cir. June 21 , 2 0 1 1 ) (alteration in original)

(quoting Fanning v. Metro. Transit Auth. , 141 F. App’x 311, 314 (5th Cir. 2005)). As Carner failed to raise this issue before the district court, the issue has been waived. III. Conclusion For the foregoing reasons, we AFFIRM the judgment of the district court.

8 Case: 11-30205 Document: 00511619971 Page: 8 Date Filed: 10/03/2011