IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60787

J.G.T., INCORPORATED,

Plaintiff - Appellant

v.

ASHBRITT, INCORPORATED; FEDERAL INSURANCE COMPANY,

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:09-CV-380

Before JOLLY, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

Appellant J.G.T., Inc. (JGT), a Mississippi corporation, appeals the district

court’s denial of its motion for leave to file an amended complaint to cure a defect

in its filing—JGT’s lack of capacity to sue. We review the district court’s denial

for abuse of discretion. S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315

F.3d 533, 535 (5th Cir. 2003). 

At the time JGT filed its original and amended complaints, JGT was

administratively dissolved under Mississippi law and lacked the capacity to file

United States Court of Appeals

Fifth Circuit

F I L E D

August 31, 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: 10-60787 Document: 00511589476 Page: 1 Date Filed: 08/31/2011
No. 10-60787

suit. Appellees Ashbritt, Inc. and Federal Insurance Company filed a motion for

summary judgment seeking dismissal of the suit on that basis. Thereafter, JGT

took the steps necessary to be reinstated as a corporation in good standing under

Mississippi law. However, only after Appellees argued that reinstatement was

not retroactive so as to cure the capacity defect that existed at the time JGT was

added as a plaintiff to the suit did JGT file a “Motion for Leave to File Amended

Complaint.” And, as noted by JGT, it did not seek to amend the pleadings but

sought instead to cure the defect in its original pleadings—its lack of capacity to

sue—by “re-filing” the complaint as an amended complaint. JGT described the

motion as a “motion to perfunctorily re-file the complaint to cure a technical

defect.” The district court granted Appellees’ motion for summary judgment,

finding that JGT lacked the capacity to sue when it was added as a party to the

suit and that JGT’s subsequent reinstatement did not act retroactively to cure

the defect. The district court dismissed the suit without prejudice and denied

as moot JGT’s motion for leave to amend the complaint. 

JGT does not argue that the district court erroneously granted summary

judgment. Instead, JGT’s only argument on appeal is that the district court

abused its discretion by not allowing JGT to re-file its amended complaint. JGT

admits that the amended complaint did not seek to amend anything within the

meaning of Federal Rules of Civil Procedure 15 and 16. JGT presumably sought

to avoid a Mississippi statute of limitations problem that would result if the suit

was dismissed and later re-filed in Mississippi.

We have reviewed the parties’ briefs and pertinent portions of the record. 

Neither party requested oral argument. Having consulted the applicable law,

we find no basis to conclude that the district court abused its discretion by

denying JGT’s motion to amend the complaint. As admitted by JGT, JGT did

not seek to amend the pleadings in the traditional sense, but instead sought to

2

Case: 10-60787 Document: 00511589476 Page: 2 Date Filed: 08/31/2011
No. 10-60787

“re-file” the complaint in the same proceeding to avoid having to re-file after the

case was dismissed. 

AFFIRMED.

3

Case: 10-60787 Document: 00511589476 Page: 3 Date Filed: 08/31/2011