* District Judge of the Western District of Texas, sitting by

designation.

 

** Local Rule 47.5 provides: "The publication of opinions that have no

precedential value and merely decide particular cases on the basis of wellsettled principles of law imposes needless expense on the public and burdens on

the legal profession." Pursuant to that Rule, the Court has determined that this

opinion should not be published.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 93-5477

_______________________

GEORGE E. BASCO,

Plaintiff-Appellant

Cross-Appellee,

versus

AMERICAN GENERAL INS.CO., ET AL.,

Defendants,

SPX CORP.,

Defendant-Appellee,

Cross-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

(92-CV-2180)

_________________________________________________________________

(November 30, 1994)

Before JONES and DeMOSS, Circuit Judges, and BUNTON*, District

Judge.

EDITH H. JONES, Circuit Judge:**

This maritime products liability case presents the

question whether the voluntary dismissal of a timely filed suit
2

tolls the statute of limitations in a separate, untimely filed

suit. Because under federal law this case was clearly time-barred,

we need not reach appellant's other arguments against the judgment.

See Missouri Pac. R.R. Co. v. Harbison-Fischer Mfg. Co., 26 F.3d

531, 538 (5th Cir. 1994) (the Fifth Circuit "can affirm the

district court on the alternate grounds asserted below"). 

George Basco, the plaintiff, was employed as a laborer

for Crain Brothers, an oil field service company. Beginning in

January 1988, Basco was assigned by Crain Brothers to work for the

Santa Fe Drilling Company on four different oil platforms located

off the coast of Louisiana. In October 1988, Basco was injured

when he and several other employees were removing the drawworks

from a platform with the aid of a double-cylinder ram manufactured

by SPX Corporation, the defendant/appellee/cross-appellant. 

Basco filed two separate suits. He first sued Santa Fe

Drilling in Louisiana state court in February 1989; Santa Fe

removed the case to federal district court the following month. In

October 1989, Basco joined SPX as a defendant in this suit. In

June 1991, Basco filed a second suit in Louisiana state court, this

time against Crain Brothers. Basco joined SPX as a defendant in

that suit in May 1992 and, three months later, voluntarily

dismissed SPX as a defendant in his suit against Santa Fe Drilling.

Basco then settled with Crain Brothers in December 1992, thereby

leaving SPX as the sole defendant in the second suit. SPX removed

the case to federal district court in December 1992.
3

At trial, Basco alleged that SPX was liable for his

injuries under federal maritime products liability law.

Specifically, he asserted that the ram which SPX manufactured was

defective in that it did not contain a warning to avoid using the

ram in a jack-like fashion. At the close of the plaintiff's case,

SPX moved for a directed verdict on two grounds: (1) that Basco's

claim was barred by federal maritime law's three-year statute of

limitations, see 46 App. U.S.C. § 763a, and (2) that based on the

evidence, viewed in a light most favorable to Basco, no reasonable

jury could conclude that the ram was defective. 

The district court took SPX's motion under advisement

while SPX presented its case. The case was then submitted to the

jury, which found that Basco had failed to prove that SPX's ram was

defective. Given the outcome, the court concluded that SPX's

directed verdict motion was moot. Basco now appeals the district

court's jury instructions concerning the "sophisticated user"

defense. SPX cross-appeals inter alia the district court's refusal

to grant SPX a directed verdict on the ground that Basco's claim is

time-barred. Because SPX's cross-appeal on this point is

dispositive, we reach no other issues raised.

The statute of limitations on federal maritime torts

states:

"Unless otherwise specified by law, a suit for recovery

of damages for personal injury or death, or both, arising

out of a maritime tort, shall not be maintained unless

commenced within three years from the date the cause of

action accrued."
4

46 App. U.S.C. § 763a. Basco's second claim against SPX was filed

in May 1992, more than three years after the date of his injury in

October 1988. The chronology of events supports SPX's cross-appeal

that Basco's suit is time-barred under this statute of limitations.

Basco responds that SPX's argument overlooks important

procedural history. He concedes that the second claim against SPX

was filed beyond the three-year prescriptive period, but maintains

that his claim still is not barred because the first claim was not

only timely filed but also pending when the second claim was filed.

That SPX was voluntarily dismissed from the first claim after the

filing of the second claim is irrelevant. The important fact, he

argues, is that the first suit -- which was timely filed -- was

pending at the time the second suit -- which was not timely

filed -- was filed. Basco essentially is arguing that, for

purposes of satisfying the statute of limitations for federal

maritime torts, the filing of the first suit tolled the statute of

limitations as to the filing of the second suit. Basco relies on

Davis v. Johns-Manville Prods., 766 F.Supp. 505 (E.D. La. 1991).

In Davis, the district court, sitting in diversity, initially

determined that it would apply Louisiana, as opposed to federal,

law regarding statute of limitations. As a result, the court

concluded that the plaintiff's instant suit was not time-barred

because the prior filing of a suit within the prescriptive period

against a "solidary obligor" interrupted the prescriptive period as

to the later suit. Basco argues that the filing of his first suit
5

similarly interrupts the prescriptive period as to the filing of

the second suit. 

But as SPX points out, Basco's reliance on Johns-Manville

Products is misplaced because that court was applying a Louisiana

statute of limitations whereas this suit involves a federal statute

of limitations for maritime torts. A federal statute of

limitations is not tolled when the plaintiff files a claim that

later is voluntarily dismissed. See Taylor v. Bunge Corporation,

775 F.2d 617, 619 (5th Cir. 1985); 9 CHARLES A. WRIGHT & ARTHUR R.

MILLER, FEDERAL PRACTICE AND PROCEDURE § 2367 at 186-87 (1971). Once

Basco voluntarily dismissed his first suit, he was in the same

position as if the suit had never been filed. Basco therefore was

barred under § 763a from bringing his second suit against SPX

because he voluntarily dismissed the first suit.

The judgment of the district court is therefore AFFIRMED.