IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10711

CADLES OF GRASSY MEADOWS II, L.L.C., 

by Assignment from Olney Savings Association,

Plaintiff-Appellant,

THE STATE OF TEXAS,

Intervenor Plaintiff-Appellant,

v.

DAVID GOLDNER; ROBERT GOLDNER, 

Defendants-Appellees.

Appeals from the United States District Court

for the Northern District of Texas

Before DAVIS, SMITH, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge.

Cadles of Grassy Meadows II, L.L.C. (“Cadles”), sued David and Robert

Goldner to recover on a debt. The court dismissed the suit as time-barred, holding that a Texas provision tolling the statute of limitations against out-of-state

United States Court of Appeals

Fifth Circuit

F I L E D

September 8, 2008

Charles R. Fulbruge III

Clerk
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1 The remaining defendant, who had been an Equivest partner, had died.

2 The judgment was voided because of insufficient service of process on the ground that

process was sent to the wrong New York addresses.

3

Indiversity cases involving state-law claims,federal courts apply applicable state limitations statutes. Tex. Soil Recycling, Inc. v. Intercargo Ins. Co., 273 F.3d 644, 649 (5th Cir.

(continued...)

2

defendants violates the Commerce Clause ofthe United States Constitution. We

affirm the dismissal.

I.

The Goldners were partners in Equivest Properties, a Texas general partnership. In 1985 and 1988, Equivest executed promissory notes in Texas to pay

about $2.7 million to Olney Savings Association. In their individual capacities,

the Goldners agreed to guarantee Equivest’s debt to Olney, and they listed a

Texas address in the guarantees. The notes were further secured by deeds of

trust that created liens on real property owned by Equivest in Texas. The notes

were due on December 31, 1988, at which time a claim for recovery on the debt

accrued.

By the end of 1988, the Goldners had left Texas and did not return. The

full debt was not paid, and the Goldners resided in New York. In 1992, Olney,

now doing business as AmWest Savings Association, sued Equivest and the

Goldners in Texas state court to recover unpaid portions of the debt. In 1994,

the court rendered a judgment against the defendants for the unpaid principal,

interest, costs, and attorneys’ fees. Equivest became defunct,1 and the state

court granted the Goldners’ motion to void the judgment as to themselves.2

Through a series of assignments, Cadles in 2004 acquired all interest in

the debt and judgment and in 2006 sued the Goldners for unpaid amounts due.

Cadles maintained that its suit to recover on the almost eighteen-year-old debt

was timely, because the applicable statute of limitations3 was tolled by a Texas
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3

(...continued)

2001). The parties disagree about whether the applicable limitations period is four years, per

TEX. CIV. PRAC. & REM. CODE § 16.004(a)(3), or two years, per TEX. PROP. CODE § 51.003(a).

All parties, however, concede that Cadles’ cause of action accrued in 1988 and thatthe applicable limitations periodSSbe it two years or fourSShas long since run.

3

statute extending limitations against out-of-state defendants: “The absence from

this state of a person against whom a cause of action may be maintained

suspends the running ofthe applicable statute of limitations for the period ofthe

person’s absence.” TEX. CIV.PRAC. & REM. CODE § 16.063. Judicial gloss on that

statute has clarified that tolling applies to Texas residents who are not present

in Texas and to nonresidents who are not present in Texas but were present

there when they contracted the debt or when the cause of action accrued. See

Jackson v. Speer, 974 F.2d 676, 678-79 (5th Cir. 1992) (citing state cases). 

Whether applied to a resident or nonresident, however, the provision tolls

limitations against defendants for as long as they are not present in Texas. It

is undisputed that the Goldners were present in Texas when they incurred the

debt but have been absent from Texas and have not been there for an aggregate

period of four years since accrual of the cause of action.

On diversity grounds, the Goldners removed the suit to federal court and

moved for judgment on the pleadings, arguing that the claim is barred by limitations because the Texas tolling provision violates the dormant commerce

clause. Cf. U.S. CONST., art. I, § 8, cl. 3. The State of Texas intervened to defend

the statute’s constitutionality. Finding the tolling statute unconstitutional, the

district court deemed the suit time-barred and entered judgment for the Goldners.

II.

A.

We review a judgment on the pleadings de novo. Nunez v. Simms, 341
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4

F.3d 385, 388 (5th Cir. 2003). We accept the complaint’s well-pleaded facts as

true and view them in the light most favorable to the non-movant. Johnson v.

Johnson, 385 F.3d 503, 529 (5th Cir. 2004). 

B.

In Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888

(1988),the Court invalidated an Ohio tolling provision similar to the Texas statute at issue here. Ohio, like Texas, tolled limitations for as long as a defendant

was not present in the state. The Court explained that when “a State denies ordinary legal defenses or like privileges to out-of-state persons or corporations

engaged in commerce, the state law will be reviewed under the Commerce

Clause to determine whether the denial is discriminatory on its face or an impermissible burden on commerce,” id. at 893, and “weigh[ed] and assess[ed] the

State’s putative interests against the interstate restraints to determine if the

burden imposed is an unreasonable one,” id. at 891. The Court concluded that

“the burden imposed on interstate commerce by the tolling statute exceeds any

local interest that the State might advance.” Id. Bendix compels the same conclusion here.

The dormant commerce clause analysis requires a “two -tiered approach.”

Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 578

(1986). “When a state statute directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over

out-of-state interests, [the Court has] generally struck down the statute without

further inquiry.” Id. at 579. “When, however, a statute has only indirect effects

on interstate commerce and regulates evenhandedly, we have examined whether

the State’s interestis legitimate and whether the burden on interstate commerce
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4 This balancing approach was first set forth in Pike v. Bruce Church, Inc., 397 U.S. 137,

142 (1970) (citation omitted), in which the Court explained,

Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be

upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then

the question becomes one of degree. And the extent of the burden that will be

tolerated will of course depend on the nature of the local interest involved, and

on whether it could be promoted as well with a lesser impact on interstate activities.

5 The tolling statute eliminates “the defense of limitations in all suits against nonresidents who incur an obligation in Texas and go back to their home state without returning to

Texas. In such cases, the statute is tolled indefinitely.” Dicker v. Binkley, 555 S.W.2d 495, 497

(Tex. App.SSDallas 1997, writ ref’d n.r.e.).

5

clearly exceeds the local benefits.” Id.

4

In Bendix, 486 U.S. at 891, the Court

observed that the Ohio tolling statute “might have been held to be a discrimination that invalidates without extended inquiry,” i.e., at the first tier, but the

Court nevertheless chose to apply the balancing test, and we do the same here.

As an initial matter, however, Cadles maintains that the Goldners were

not “out-of-state persons . . . engaged in commerce,” id. at 893, so the Commerce

Clause does not even reach the activities in question. In the parlance of the balancing test, this argument amounts to a claim that applying the Texas tolling

statute to the Goldners has no effects on interstate commerce, be they direct or

indirect. We disagree. 

The Texas provision deprives defendants of a limitations defense by virtue

ofthe factthat they are out of state.5It thus restricts one’s freedom to incur business obligations in Texas and then to leave the state without detriment. That

is what the Goldners did: They obtained a loan in Texas and left for New York,

carrying the debt obligations with them. The transportation of persons between

states falls within the ambit of the Commerce Clause, see, e.g., Heart of Atlanta

Motel, Inc. v. United States, 379 U.S. 241, 253-57 (1964); Edwards v. California,

314 U.S. 160, 173 (1941), and though Cadles maintains thatthe Goldners “trans-
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6 Cf. Heart of Atlanta Motel, 379 U.S. at 357 (“‘Commerce among the states . . . includes

the transportation of . . . p[ro]perty.’”) (quoting Hoke v. United States, 227 U.S. 308, 320

(1913)). The Goldners originally transacted with a federally insured bank, and the financial

instruments were transferred in a series of assignments from that bank to a Delaware limited

partnership located in Georgia and then to a West Virginia company located in Ohio. See Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 58 (2003) (“No elaborate explanation is needed to

make evident the broad impact of commercial lending on the national economy or Congress’

power to regulate that activity pursuant to the Commerce Clause.”).

6

ported nothing from Texas to New York except themselves,” Cadles overlooks

that the Goldners brought their debt along with themSSi.e., they effectively

“transported” a commercial obligation.6 The Goldners’ actions plainly affected

interstate commerce and therefore implicated the Commerce Clause.

Turning to burdens and benefits, the effects of the Texas tolling statute

are substantially similar to those of the Ohio statute struck down in Bendix.

The Bendix Court first assessed the Ohio statute’s burden on interstate commerce and observed that “[a]lthough statute of limitations defenses are not a

fundamental right,” a state “may not withdraw such defenses on conditions repugnant to the Commerce Clause.” Bendix, 486 U.S. at 893. 

Because the Ohio statute tolled the statute of limitations while defendants

were not present in Ohio, the Court held that it burdened out-of-staters. Although an out-of-state business could have established a presence in Ohio and

avoided tolling by appointing a resident agentfor service of process in that state,

doing so would have subjected the business to the general jurisdiction of the

Ohio courts. That resulted in a Hobson’s choice: “The Ohio statutory scheme

thus forces a foreign corporation to choose between exposure to the general jurisdiction of Ohio courts or forfeiture of the limitations defense, remaining subject

to suit in Ohio in perpetuity.” Id. That choice was a “significant burden” on interstate commerce. Id.

Like the Ohio statute, the Texas statute tolls limitations while a defendant

is not present in Texas. The state, however, contends that its statute does not
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7 G. Richard Goins Constr. Co. v. S.B. McLaughlin Assocs., Inc., 930 S.W.2d 124, 128

(Tex. App.SSTyler 1996, writ denied) (“The absence from this state of a person against whom

a cause of action may be maintained suspends the running of the applicable statute of limitations for the period of the person’s absence. However, a defendant that maintains a registered

agent for service of process within the state is not absent from the state for purposes of [the

tolling provision].”) (citations and quotations omitted) (emphasis added); see also Davis v. B.E.

& K., Inc., 595 S.W.2d 895, 896 (Tex. Civ. App.SSEastland 1980, writ ref’d n.r.e.) (“[B.E. & K.

corporation] maintains an authorized agent for service within this state. Such a defendant is

not ‘without the limits ofthis State’ within the meaning ofthe tolling statute.”) (emphasis added).

8 The state does point to one Texas decision that did not distinguish between individual

and corporate defendants when determining whether the defendants were present for tolling

purposes. The court observed in a single breath that “the Brown entities [individuals] and

D.H. Morgan [corporation] are nonresidents, do not maintain an agent for service of process

within Texas, and were not present within the state of Texas on May 17, 1992.” Howard v.

Fiesta Tex. Show Park, Inc., 980 S.W.2d 716, 722 (Tex. App.SSSan Antonio 1998, pet. denied).

Without specifying whether it was speaking about the individuals or the corporation,the court

also observed,“‘Presence’ within the state of Texas occurs if an agent, employee, or other representative was within the territorial limits of the state.” Id. at 723. 

The cited case is ambiguous at best. Its only plain holding is that the tolling statute

applies where an individual or corporate defendant neither has a physical presence in Texas

nor appoints a resident agent. That is of course true, but relatively unilluminating, because

it is consistent with both the Goldners’ and the state’s arguments.

7

burden out-of-staters because, unlike the situation in Ohio, out-of-staters can be

presentin Texas without subjecting themselves to the general jurisdiction ofthe

Texas courts. In other words, Texas maintains that it has no Hobson’s choice:

To avoid tolling, an out-of-state defendant need only appoint a resident agent

and need not thereby be subject to the state’s general jurisdiction. 

The state’s argument relies on the assumption that individuals such as the

Goldners can establish presence in Texas for tolling purposes by appointing

resident agents. The state cites two cases holding that a corporation that establishes a “registered agentfor service of process”inTexas is “present”for purposes

of the tolling provision.7 The Goldners, however, point out that no Texas court

has applied the tolling provision to individuals who appoint resident agents, as

distinguished from corporations that register resident agents with the state.8In

the cases addressing what constitutes “presence” for individuals, the courts have
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9 See Dicker, 555 S.W.2d at 497 (“[S]ince [the defendant] was thus physically present

in Texas at the time the obligation arose, his subsequent absence from the state tolled the running of limitations . . . . We recognize that the practical effect of this holding is to eliminate

the defense of limitations in all suits against nonresidents who incur an obligation in Texas

and go back to their home state without returning to Texas. In such cases, the statute is tolled

indefinitely.”); Wise v. Anderson, 359 S.W.2d 876, 879 (Tex. 1962) (“[The tolling statute] does

apply to nonresidents who were present in the state at the time the cause of action accrued or

had its inception and who later leave the state.”); Stone v. Phillips, 176 S.W.2d 932, 933 (Tex.

1944) (holding that though defendant “never abandoned her home in Texas” and “always considered herself a citizen of Texas,” the fact that “the defendant was absent atthe time the right

to sue accrued, and remained absent until only a short time prior to the filing of the suit,”

triggered the tolling provision).

10 In an old case construing the predecessor to the current tolling statute, a Texas court

noted the following:

If [the defendant] came into the state openly and publicly, under circumstances

which afforded [the plaintiff] reasonable and fair opportunity, by the exercise of

ordinary diligence, to obtain personal service upon him, we think the time he so

remained should be counted in his favor [for tolling purposes], whether [the

plaintiff] had actual knowledge thereof or not.

Montgomery v. Brown, 28 S.W. 834, 834 (Tex. Civ. App.SSFort Worth 1894, no writ).

8

focused exclusively on physical presence and have not discussed the possibility

of individuals’ appointing agents.9

Although an individual may appoint an agentto accept process, he cannot

formally register that agent for service of process with the state. The Goldners

advance a plausible case that this distinction makes a difference, because the

registration makes the out-of-state business readily identifiable as an entity

amenable to service within the state. There is reason to think that the animating principle behind the Texas courts’ understanding of “presence,” for tolling

purposes, is the open and notorious nature of a defendant’s amenability to service.10 The state suggests that the Goldners could have put Cadles on notice of

their appointment of a Texas agent by designating that agentin the debt instruments. But Texas courts had not made plain at the time those instruments were

signed, and have not made plain since, that an individual who designates a resident agent in the instruments can avoid tolling.
No. 07-10711

11 In the event the Texas courts do create an exception for individuals who appoint resident agents, we make no judgment as to whether such exception would be sufficient to satisfy

the dormant commerce clause.

12 See Bendix, 486 U.S. at 894-95 (deriding as “speculative” the suggestion that defendant could have avoided tolling merely by designating an agent for service of process in its contract with plaintiff, because “there is no statutory support” for that option).

13 Because the Goldners were burdened with having to move back to Texas, we need not

address the state’s argument that there is a fact issue regarding whether the Goldners took

any actions that would have subjected them in any case to the general jurisdiction ofthe Texas

courts regardless of the tolling statute. The burden here is having to move back to Texas, not

the burden of subjecting oneself to jurisdiction.

9

We cannot know whether the Texas courts will ever deem appointment of

a resident agent sufficient for an individual to establish “presence” under the

tolling statute, and we need not wager an answer today. It is enough for our

purposes to recognize that it remains an open question. So long as that is so, it

would be mistaken to say that the Goldners were unburdened by the tolling provision just because they could have done something the Texas courts mightSSor

might notSSin the future deem sufficient to avoid tolling.11 At the time the instruments were signed, and now,the Texas courts have explicitly recognized only two ways to avoid tollingSSeither an individual’s physical presence in Texas

or a corporation’s registration of an agent in Texas. To require the Goldners to

guess, ex ante,thatthe courts would recognize a third way, ex post, would impose

too great a burden.12

We conclude, therefore, that the burden the Texas statute imposes on the

Goldners is at least as great as the one that the Ohio statute imposed in Bendix.

Indeed, it would have been even more difficult for the Goldners to avoid tolling

than it was for the Bendix defendants: Not only would the Goldners have had

to subject themselves to the general jurisdiction of Texas courts, but they would

also have had to move physically back to Texas.13

We must next weigh that burden against the local benefit of the Texas

tolling statute. In Bendix, which involved a corporate defendant, the Ohio stat-
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14 Indeed, the Texas courts long ago acknowledged the tolling provision’s original purpose, in the days before the existence of long-arm jurisdiction. The tolling provision was “intended to protect [domestic creditors] from the inconvenience and loss, to which they would be

exposed by the absence of their debtors and consequent immunity of the latter from process

and judgment.” Ayres v. Henderson, 9 Tex. 539, 539 (1853).

10

ute advanced the state’s interestin ensuring plaintiffs had the “ability to execute

service of process on foreign corporations and entities.” Bendix, 486 U.S. at 894.

Though it recognized such interest as “important,”id. at 893,the Court concluded that the Ohio tolling statute was not necessary to satisfy it:

Ohio cannot justify its statute as a means of protecting its residents

from corporations who become liable for acts done within the State

but later withdraw from the jurisdiction, for it is conceded by all

parties thatthe Ohio long-arm statute would have permitted service

on [the defendant] throughout the period of limitations.

Id. at 894. The Court acknowledged that “serving foreign corporate defendants

may be more arduous than serving domestic corporations or foreign corporations

with a designated agent for service,” id. at 893, but that interest in easing the

difficulty of service is “insufficient to withstand Commerce Clause scrutiny,” id.

at 894. In sum, the Bendix Court deemed the tolling statute unnecessary to advance Ohio’s interest in ensuring that it be possible for residents to sue out-ofstate defendants, and the Court found it unjustified to advance an interest in

merely making it less arduous to sue out-of-state defendants. 

Cadles and the state do not contest that the Texas long-arm statute, like

the Ohio statute, makes it possible for residents to sue out-of-state defendants.

See TEX. CIV.PRAC. & REM. CODE § 17.041 et seq. As in Bendix, modern personal

jurisdiction doctrine and the existence of a long-arm statute make theTexas tolling provision no longer necessary to advance the provision’s traditional purpose.14 And as in Bendix, it will not suffice to defend the statute on the ground
No. 07-10711

15 Cadles and the state argue that the local interest here is an interest merely in making it easier for domestic plaintiffs to serve out-of-state defendants, because “distance adds

expense and difficulty,” and Cadles “may have been unable to procure valid contact information for the Goldners despite diligent efforts.” As explained above, however, that argument

was acknowledged in Bendix and was rejected as insufficient.

16 See Vice v. Danvid Window Co., 2007 WL 1668637, at *2 (S.D. Miss. 2007) (“The

Court finds that Miss. Code Ann. § 15-1-63 does not violate the Commerce Clause since the

statute only tolls the statute of limitations when the defendant is not amenable to service of

process because his whereabouts are unknown . . . .”); Blyth v. Marcus, 517 S.E.2d 433, 435

(S.C. 1999) (“We held the period of limitations may be tolled only when the name and location

ofthe defendant are not known to the plaintiff. Since we have limited the application of § 15-3-

30 [in that previous case], the statute is now substantially different than the Ohio statute

struck down in Bendix.”).

17 Nor can we narrow the statute by construing it to avoid a constitutional question,

because the statute is not ambiguous on this point. See Crowell v. Benson, 285 U.S. 22, 62

(continued...)

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that it makes serving out-of-state defendants less arduous.15

The state suggests that the conclusion would be different if the Goldners

could not be found for service, thus making it effectively impossible for Cadles

to serve them. That sort of factual impossibility of service might be analogous

to the legal impossibility of service that would have existed absent a long-arm

statute. Indeed, Justice Scalia suggested that possibility in his Bendix concurrence, observing, “A tolling statute that operated only against persons beyond

the reach of Ohio’s long-arm statute, or against all persons that could not be

found for mail service, would be narrowly tailored to advance the legitimate purpose of preserving claims.” Bendix, 486 U.S. at 898 (Scalia, J., concurring in the

judgment). Two courts have upheld the constitutionality of Mississippi and New

Jersey tolling statutes thattolled limitations where it was impossible, or atleast

very difficult, for out-of-state defendants to be found for service.16

The Mississippi and New Jersey cases, however, involved narrowly written

statutes that triggered tolling only where the defendants could not be served because their whereabouts were unknown. The Texas statute, like the Ohio statute in Bendix, is not so narrowly drawn.17 That is perhaps why the seven-mem
No. 07-10711

17 (...continued)

(1932) (“[W]hen the validity of an Act of Congress is drawn in question, and even if a serious

doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain

whether a construction ofthe statute is fairly possible by which the question may be avoided.”)

(emphasis added). To accept the state’s argument, we would have to rewrite the statute, a job

the federal courts are wise to leave to the legislature.

The state contends that we should construe and weigh the local benefits of the tolling

provision in an “as applied” manner, determining whether the state has an interest in tolling

limitations againstthe particular defendants in this case because there is a fact question about

whether it was effectively impossible to serve the Goldners with process. But there is no such

fact question: As applied to the Goldners, the Texas statute would toll limitations against the

Goldners regardless of whether, as discussed above, they were effectively impossible to serve.

And we cannot read the statute to make an exception, as applied to the Goldners, that the

statute does not make. 

12

ber majority opinion in Bendix never mentioned the impossibility-of-service

argument, and even Justice Scalia rejected it as applied to the Ohio statute,

which was substantially the same as the Texas statute at issue here .

In sum, the tolling statute’s balance of burdens and benefits in this case

is not materially different from the balance deemed unconstitutional in Bendix.

As the Court did in Bendix, we conclude that the “the burden imposed on interstate commerce by the tolling statute exceeds any local interest that the State

might advance.” Bendix, 486 U.S. at 891. Accordingly, the judgment of dismissal is AFFIRMED.