United States Court of Appeals

Fifth Circuit



## FILED

February 12, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 03-30161

_________________

EDWARD R DRURY,

Plaintiff - Appellant,

versus

UNITED STATES ARMY CORPS OF ENGINEERS; ET AL,

Defendants,

JIM SMITH CONTRACTING COMPANY INC,

Defendant - Appellee.

Appeal from the United States District Court

For the Eastern District of Louisiana

Before JONES, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:

Appellant, Edwa rd R. Drury (“Drury”), appeals the district court’s summary judgment

dismissal of his state tort and 42 U.S.C. § 1983 claims against Appellee, Jim Smith Contracting Co.

(“Smith”). The district court concluded Drury’s claims were time-barred. L A

. R EV

. S TAT

. ANN

. §

9:5624 (“When private property is damaged for public purposes any and all actions for such damages1 Both the state tort claims and the § 1983 claim are governed by state prescription law. S ee Braden v. Texas

A&M Univ. Sys.

, 636 F.2d 90, 92 (5th Cir. 1981) ( Section 1983 has no statute of limitations period, thus federal courts

apply the state prescription statute governing most analogous cause of action). If Drury ’s state claim is time-barred,

his federal claim is also time-barred.

2 Under Louisiana law, when soli dary liability exists between two or more parties, “[i]nterruption of

prescription against one joint tortfeasor is effective against all joint tortfeasors.” L A

. C IV

. C ODE art. 2324(C).

-2- are prescribed by the prescription of two years, which shal l begin to run after the completion and

acceptance of the public works.”). We review a district court’s grant of summary judgment d e novo

.

Travelers Cas. &

Sur. Co. of Am. v. Baptist Health Sys. , 313 F.3d 295, 297 (5th Cir.2002). 1

Drury alleges that Smith’s work on behalf of the United States Army Corps of Engi neers

(“United States”) damaged Drury’s property

. On May 22, 1995, Drury filed suit against the United

States under the Federal Tort Claims Act (“FTCA”). 28 U.S.C. § 2671 et seq. On March 7, 1996,

Drury amended his complaint to include state and federal claims against Smith. The district court

concluded the two-year statute of limitations accrued on April 4, 1993, the latest date by which Smith

was off Drury’s land. S ee § 9:5624 (requiring Drury to file claims within two years). Both the

o riginal FTCA claim and the amended claim were filed more than two years after the prescriptive

period had run. Drury argues his mandatory FTCA administrative claim, which was filed on May,

15, 1994, interrupted prescription regarding the third party tort claims against Smith.

Louisiana law allows interruption of prescription when actions are commenced “in a court of

competent jurisdiction and venue.” L A

. C IV

. C ODE art. 3462 (“article 3462”). Interruption is also

appropriate “when one ac k nowledges the right of the person against whom he had commenced to

prescribe.” L A

. C IV

. C ODE art. 3464 (“article 3464”). In this case, Drury argues only that the filing

of an FTCA administrative claim constitutes a suit in a court of competent jurisdiction under article

3462. 2-3-

Drury urges this Court to extend the reach of article 3462 to include federally required

administrative claims. Drury contends that workers’ compensation cases support this result

. See

Andrews v. Strauss

, 2002 WL 31375610 at *4 (E.D. La. Oct. 18, 2002) (holding that federal

workers’ compensation

claims interrupt prescription period for tort claims against third parties);

Murry v. Aran Energy Corp.

, 1995 WL 510 083 at *2 (E.D. La. Aug. 24, 1995) (sam e); S cott v.

Sears, Roebuck and Co.

, 778 So.2d 50 (La. Ct. App. 1st Cir. 2000) (filing of state workers’

compensation claim equivalent of suit under article 3462); Gray v. Mounir

, 746 So.2d 746, 749 (La.

Ct. App. 3d Cir. 1999) (same).

On the other hand, prior cases hold that fed eral administrative claims filed with the Equal

Opportunity Employment Commission (EEOC), as required by Title VII, 42 U.S.C. § 2000e-5(f),

do not interrupt prescription for state law claims. S ee Taylor v. Bunge Corp.

, 775 F.2d 617, 618-19

(5th Cir. 1985); Fussell v. Bellsouth Communications, Inc.

, 1998 WL 12229 at *2 (E.D. La. Jan. 8,

1998) (“The Fifth Circuit has clearly stated that the filing of an EEOC charge does not toll, interrupt,

or suspend prescription with regard to a plaint iff’s state law claims.”); Roth v. N.J. Malin & Assoc.

,

1998 WL 898367 at *5 (E.D. La. Dec. 21, 1998) (“[T]he case law

. . . has consistently held that the

filing of an EEOC charge does not toll, interrupt, or suspend prescription with regard to a plaint iff’s

state law claims.”) (internal quotati ons omitted); Brouillette v. Transamerican Refining Corp.

, 1995

WL 683869 at * 4 (E.D. La. Nov. 11, 1995) (“Plaintiff’s federal and state law claims are not

embodied in the same legisl at ive scheme . . . . Consequently, plaintiff’s filing of administrative

proceedings did not operate to toll or suspend t he prescriptive period on plaintiff’s state law

claims.”); Weathersby v. Jacquet , 813 So.2d 1135, 1140 (La. Ct. App. 3d Cir. 2002) (“Neither do

we find merit in any assertion that a claim under federal law would in any way interrupt st at e law-4-

prescriptive periods.”). In addition, we have previously questioned whether an administrative claim

can toll a state prescription period. S ee Fitzgerald v. Secretary U.S. Dep’t of Vet. Affairs

, 121 F.3d

203, 210 (5th Cir. 1997) (“Fitzgerald points to no authority for the proposition that the filing of an

administrative complaint against the Secretary interrupts the prescription period.”).

No precedent or statute establishes that Drury’s federal FTCA claim against the United States

interrupts prescription of the state tort claims against Smith. We conclude that Drury’s FTCA claim

did not toll prescription of his third party state tort claim against Smith. C f

. T aylor

, 775 F.2d at 618-

19. Accordingly, Drury’s claims against Smit h were filed in excess of the two-year prescription

period and are time-barred. We AFFIRM the district court.