IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 BlueCross

BlueShield of Louisiana, brought a lawsuit against BlueCross BlueShield of

Louisiana alleging both federal and state claims, including retaliation, hostile

work environment, and constructive discharge. Carner appeals the district

United States Court of Appeals

Fifth Circuit

F I L E D

October 3, 2011

Lyle W. Cayce

Clerk

 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.

Case: 11-30205 Document: 00511619971 Page: 1 Date Filed: 10/03/2011
court’s grant of BlueCross 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”) was an employee of BlueCross BlueShield of

Louisiana (“BCBSLA”) from March 2007 until she resigned on July 24, 2009. 

According to Carner, beginning in April 2008, BCBSLA employees pressured her

to violate state and federal trade secret laws. Carner alleges that, after she

refused to comply with these demands and then reported her concerns to

BCBSLA officials, BCBSLA employees persistently retaliated against 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

state-law claims of retaliation, hostile work environment, constructive discharge,

intentionalinfliction of emotional distress, and defamation. Carner also brought

a claim under 42 U.S.C. § 1983 based on an alleged violation of her First

Amendment rights. BCBSLA was served by process on August 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

petition 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 filed a Status Report in the district

court. In the 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 compel 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.” 

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On December 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 within the one-year prescriptive period. 

On January 18, 2011, Carner filed a memorandum in opposition to BCBSLA’s

summary judgment motion, arguing that her claims were not prescribed,

because BCBSLA’s acts of post-employment retaliation extended the prescriptive

period. 

The district court granted BCBSLA’s summary judgment motion, stating

that 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,”the district 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 BCBSLA 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 “genuine” 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.3d at 343 (citations and internal quotation

marks omitted). 

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In its motion for summary judgment, BCBSLA contended that all of

Carner’s claims were prescribed. Under Louisiana Civil Code Article 3492,

delictual actions are subject to a one-year prescriptive period, which begins to

run from the date of injury. All of Carner’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 personal injury action and

therefore subject to the relevant state prescription period. 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 only as to 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 concedes 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 if she served the defendant during the one-year prescriptive

period. It is 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, 2009, 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,

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after 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, we 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 solely 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 prescription, 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

BCBSLA, 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 BCBSLA’s motion for summary

judgment (“opposition memorandum”) that her post-employment retaliation

claims extended the prescriptive period. In her opposition memorandum, Carner

acknowledged that she had only briefly mentioned these claims in two

paragraphs of her original petition. Carner reiterated these claims in her 1

For instance, in paragraph 35 of her petition for damages, Carner alleged that, after 1

her resignation, “based on knowledge, information and belief, potential employers have been

unable to receive verification of employment and/or a favorable job reference from officials

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opposition 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 opposition memorandum that

“BCBSLA’s retaliation has been a continuous and sustained adverse action

towards Ms. Carner” that persisted through July 2010.

However, Carner failed to provide the district court with any evidence

supporting these post-employment retaliation claims. After a movant has met

its initial burden of demonstrating the absence of a genuine issue of material

fact, in order to defeat summary 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 (5th Cir. 1994) (citing Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986)). “This burden is not satisfied with ‘some

metaphysical doubt as to the material facts,’ by ‘conclusory allegations,’ by

‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” 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 was 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 forward with 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

with BCBSLA which has lead [sic] to the petitioner’s difficulty in securing comparable

employment in her field.”

For instance, much of Carner’s opposition memorandum consisted of statements such

2

as the following, presented without any specific factual support: “The defendant’s adverse

actions/retaliatory conduct toward the plaintiff did not end on July 24, 2010 [sic 2009], sadly

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facts, in the pleadings or otherwise, to support her post-employment retaliation

claims. The district court correctly noted that Carner “produced no evidence

that Defendant continued to retaliate against her by refusing to verify her

employment to prospective employers.” Therefore, the district court properly

concluded that Carner’s last injury was sustained on July 24, 2009, and that

BCBSLA was entitled to judgment as a matter of law because all of Carner’s

claims were prescribed. 

Carner further argues on appeal that, because the parties agreed in the

Status Report to delay discovery until after the district court’s ruling on

BCBSLA’s summary judgment motion, the district court should not have

determined whether there was a genuine dispute regarding her postemployment retaliation claims. Carner contends that, as discovery was deferred,

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. However, 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)] relief before the

summary judgment ruling.” Tate v. Starks, No. 09-60384, 2011 U.S. App. 4

it has been an ongoing enterprise.”

Federal Rule of Civil Procedure 56(d) states that “[i]f a nonmovant shows by affidavit 3

or declaration that, for specified reasons, it cannot present facts essential to justify its

opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain

affidavits or declarations or to take discovery; or (3) issue any other appropriate order.”

Rule 56 was amended in 2010, and the advisory committee notes to the 2010 4

amendments state that “Subdivision (d) carries forward without substantial change the

provisions of former subdivision (f).” Fed. R. Civ. P. 56(d) advisory committee’s note. 

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

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