     Case: 18-20373      Document: 00515207742         Page: 1    Date Filed: 11/20/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                      No. 18-20373                        November 20, 2019
                                                                             Lyle W. Cayce
                                                                                  Clerk
SYLVIA HERNANDEZ, as Administratrix and on behalf of the Estate of
Sylvia Goné, deceased; ESMERELDA ALEJANDRO,

              Plaintiffs-Appellants,

v.

J. E. SMITH, II; OFFICER SALAZAR; OFFICER THORNTON; CITY OF
PASADENA,

              Defendants-Appellees.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:16-CV-684


Before SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.
PER CURIAM:*
       A police officer named J.E. Smith II witnessed Sylvia Goné make an
illegal U-turn. The officer attempted to give her a ticket. The situation
escalated, and eventually Officer Smith tasered Goné. When backup arrived,
the officers arrested Goné and her passenger, Esmeralda Alejandro. Plaintiffs’
counsel attempted to file a § 1983 suit based on this incident but committed


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 18-20373
numerous litigation missteps along the way—including naming the wrong
plaintiff, filing too late, and failing to respond to requests for admission. The
district court granted summary judgment to the Defendants. We affirm.
                                        I.
      On April 19, 2014, Sylvia Goné was driving in Pasadena, Texas.
Esmerelda Alejandro was sitting in the passenger seat. Goné made an illegal
U-turn. Officer Smith saw it, followed Goné to a gas station, and got out of his
police cruiser. He asked Goné for her driver’s license and proof of insurance.
Goné appeared at first to ignore him, then refused his request. Goné hurriedly
got back into her car, tried to shut the car door while Officer Smith was
standing in front of it, and thrashed at Officer Smith when he tried to pull her
out of the car. Alejandro yelled at Officer Smith while recording part of the
incident on her cell phone. Even though Officer Smith told Alejandro to stay
away, Alejandro reached for an object from Goné while Officer Smith was
trying to arrest Goné. Eventually Officer Smith tasered Goné. Officers Juan
Salazar and Richard Thornton arrived as backup. Together, the three officers
arrested Goné and Alejandro. The entire incident was recorded on Officer
Smith’s dashcam video, and portions of the incident were recorded on
Alejandro’s cell phone camera. See Scott v. Harris, 550 U.S. 372, 378–81 (2007)
(instructing courts to view the facts in light of such video footage).
      On March 14, 2016, Plaintiffs’ counsel filed a complaint under 42 U.S.C.
§ 1983 against the City of Pasadena and Officers Smith, Salazar, and
Thornton. The complaint named as Plaintiffs both Goné and Alejandro—
notwithstanding the fact that Goné died in an unrelated car accident
approximately seven months before the complaint was filed.
      On March 14, 2017, the district court partially granted Defendants’
motion to dismiss. It dismissed the bulk of Plaintiffs’ claims. But it allowed


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                                   No. 18-20373
claims to proceed against: (1) Officer Smith for using excessive force on Goné;
and (2) all three officers for unlawfully arresting Alejandro.
        On December 10, 2017, Plaintiffs’ counsel amended the complaint to
properly assert survival claims by Sylvia Hernandez on behalf of Goné’s estate.
The district court, however, granted Defendants’ motion for summary
judgment. It held (1) the estate’s survival claim was untimely, and (2) the
failure of Plaintiffs’ counsel to respond to requests for admission doomed
Alejandro’s claim.
                                         II.
        We start with the statute of limitations for the survival claim brought by
Goné’s estate. Section 1983 does not contain a limitations period. So we turn
to the “appropriate” state statute of limitations. King-White v. Humble Indep.
Sch. Dist., 803 F.3d 754, 759 (5th Cir. 2015). It is undisputed that the
appropriate statute provides a two-year limitations period for personal-injury
claims. See TEX. CIV. PRAC. & REM. CODE § 16.003(a). That limitations period
is suspended for one year upon a person’s death. Id. § 16.062(a). We also look
to Texas law to determine who has standing to bring a survival action within
the limitations period. Pluet v. Frasier, 355 F.3d 381, 383–84 (5th Cir. 2004).
        Goné’s claim accrued on April 19, 2014, the date of the incident. See King-
White, 803 F.3d at 762. Goné died on August 2, 2015. At that point, Goné had
used 470 days of the two-year limitations period. So 260 days remained upon
her death. Her death suspended the limitations period for one year. See TEX.
CIV. PRAC. & REM. CODE § 16.062(a). One year from Goné’s death was August
2, 2016. Adding the 260 remaining days yielded a new deadline of April 19,
2017.
        Plaintiffs’ counsel did not properly add a survival claim until December
11, 2017—almost eight months too late. On that date, counsel filed an amended
complaint. It included a survival claim by Sylvia Hernandez, who allegedly
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sued “as the administratix [sic] as ordered in Probate Court No. 1 on behalf of
the estate of Sylvia Gone’ [sic], decedent.” Plaintiffs’ Second Amended Original
Complaint ¶ 1. Hernandez’s claim therefore is time-barred unless she can point
to some exception to the limitations period.
      The cases and rules cited by the parties discuss four possible exceptions.
Some sound in Texas law, while others sound in the Federal Rules of Civil
Procedure. The Supreme Court has recognized that when a Federal Rule of
Civil Procedure conflicts with state law, the federal rule controls. See Shady
Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010);
Hanna v. Plumer, 380 U.S. 460 (1965). We need not decide whether such a
conflict exists here because neither state law nor federal law rescues
Hernandez’s claims.
      First, Hernandez cannot benefit from the so-called Lovato-Lorentz
exception. In a pair of cases decided on the same day, the Supreme Court of
Texas held a plaintiff timely sued on behalf of the estate by filing before the
end of the limitations period—even though the plaintiff gained capacity to
represent the estate only after limitations ran. See Austin Nursing Ctr., Inc. v.
Lovato, 171 S.W.3d 845, 852–53 (Tex. 2005); Lorentz v. Dunn, 171 S.W.3d 854,
856 (Tex. 2005). Here, however, Hernandez did not sue on behalf of Goné’s
estate before the limitations ran.
      Second, Hernandez cannot rely on Texas cases allowing a plaintiff to
change her capacity after filing suit. See, e.g., Lovato, 171 S.W.3d at 852
(compiling cases); Davis v. Preston, 16 S.W.2d 117, 117–18 (Tex. 1929); Pope v.
Kansas City, M. & O. Ry. Co. of Tex., 207 S.W. 514, 515 (Tex. 1918). Under this
change-of-capacity exception, the statute of limitations will not bar a claim
when a plaintiff timely files a complaint in “her individual capacity” but
changes the suit “to her representative capacity as administrator of an estate”
after the limitations period has expired. Flores v. Cameron Cty., 92 F.3d 258,
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273 (5th Cir. 1996). But for this exception to apply, the relevant plaintiff (here,
Hernandez) must sue before the limitations period expired. Ibid.
        For example, in Covington v. Sisters of Charity of Incarnate Word, 179
S.W.3d 583 (Tex. App.—Amarillo 2005, pet. denied), the decedent’s sister filed
a lawsuit “individually and on behalf of her deceased brother.” Id. at 587. But
she made no contention that she “was the personal representative of [her
brother’s] estate” or “that she ever . . . had capacity to bring a survival action.”
Ibid. The decedent’s daughter administered the estate, but counsel added the
daughter to the lawsuit only after the limitations period expired. Ibid. The
court held that the statute of limitations barred the daughter’s claims. Id. at
589.
        Similarly, in Armes v. Thompson, 222 S.W.3d 79 (Tex. App.—Eastland
2006, no pet.), a lawyer filed a lawsuit naming Armes as the plaintiff even
though Armes had died from an illness unrelated to the lawsuit. Id. at 81. The
court declined to “treat the original petition filed in Armes’s name individually
as if it was filed on behalf of Armes’s estate.” Id. at 84. Instead, the court held
that the original pleading “was a nullity.” Ibid. This meant that a subsequent
attempt to add Armes’s estate administrator to the lawsuit could not relate
back to the original filing date of the lawsuit, and the estate’s claims were time-
barred. Id. at 84–85 (citing Texas’s relation-back statute, TEX. CIV. PRAC. &
REM. CODE § 16.068).
        Hernandez cannot meet this change-of-capacity exception. Hernandez—
the estate’s representative—sued more than three years after Goné’s claim
accrued. At that point, the limitations period had expired. Under the rationale
of Covington and Armes, her claims are barred by the statute of limitations.
        Third, Hernandez runs into a different problem by invoking Federal Rule
of Civil Procedure 15(c)(1)(B). That rule says an amendment to a pleading
relates back to the date of the original pleading if it “asserts a claim or defense
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                                  No. 18-20373
that arose out of the conduct, transaction, or occurrence set out—or attempted
to be set out—in the original pleading.” But we have held Rule 15 cannot be
used to cure a jurisdictional defect. See, e.g., Fed. Recovery Servs. Inc. v. United
States, 72 F.3d 447, 453 (5th Cir. 1995) (“Rule 15 does not permit a plaintiff
[to] amend[ ] its complaint to substitute a new plaintiff in order to cure the lack
of subject matter jurisdiction.”); Aetna Cas. & Sur. Co. v. Hillman, 796 F.2d
770, 774 (5th Cir. 1986) (“[I]f Aetna did not have the ability to bring the suit
. . . it could not amend.”); Summit Office Park, Inc. v. U.S. Steel Corp., 639 F.2d
1278, 1282 (5th Cir. Unit A Mar. 1981) (holding that “where a plaintiff never
had standing to assert a claim against the defendants, it does not have
standing to amend the complaint and control the litigation by substituting new
plaintiffs”). That makes sense given the long-settled rule that we assess
jurisdiction at the time the suit was filed. See, e.g., Davis v. FEC, 554 U.S. 724,
734 (2008).
      When Plaintiffs’ counsel filed this suit, Goné did not have standing to
sue because she was deceased. See Lovato, 171 S.W.3d at 850 (noting that if
“the decedent lived, she would have had standing”); Armes, 222 S.W.3d at 85
(holding that “[b]ecause Armes passed away before this suit was filed, she did
not have standing to assert a claim”). Instead, the estate had standing to sue.
See Lovato, 171 S.W.3d at 850 (holding that after a decedent’s death the “estate
has a justiciable interest in the controversy”); Armes, 222 S.W.3d at 83 (“The
estate is distinct from the individual.”). But no one purported to press the
estate’s claims in the original complaint. If Hernandez had been a plaintiff in
the original, timely filed complaint, perhaps she could have amended the
complaint to change her capacity after the limitations period expired. See
Flores, 92 F.3d at 273; Tidewater Marine Towing, Inc. v. Dow Chem. Co., 689




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F.2d 1251, 1253–54 (5th Cir. 1982). † But in this case, the original complaint
simply listed Goné as a plaintiff, even though she had already passed away.
Our precedents do not allow Hernandez to use Rule 15 to go back in time to
cure this jurisdictional defect.
       Fourth and finally, Federal Rule of Civil Procedure 17(a) does not help
Hernandez. Plaintiffs devote barely one-and-a-half sentences to Rule 17 in
their opening brief, so the argument is likely forfeited. Audler v. CBC Innovis
Inc., 519 F.3d 239, 255 (5th Cir. 2008).
       In all events, it is meritless. Rule 17(a) states that a “court may not
dismiss an action for failure to prosecute in the name of the real party in
interest until, after an objection, a reasonable time has been allowed for the
real party in interest to ratify, join, or be substituted into the action.” We have
held that Rule 17(a) is applicable “only when the plaintiff ” has committed an
“understandable mistake, because the determination of the correct party to
bring the action is difficult.” Wieburg v. GTE Southwest Inc., 272 F.3d 302, 308
(5th Cir. 2001). We do not think representing an attorney-client relationship
with a deceased client constitutes an “understandable” mistake. See In re Engle
Cases, 767 F.3d 1082, 1113 (11th Cir. 2014) (noting that “Rule 17 was not
promulgated to allow lawyers to file placeholder actions . . . to keep a
limitations period open while they investigate their claims and track down the
proper parties”).




       † Tidewater suggested in dicta that a plaintiff without standing theoretically could be
swapped out for a plaintiff with standing after expiration of the limitations period. See 689
F.2d at 1253–54. That closing bit of dicta was obviously unnecessary for the court’s holding—
namely, that dismissal was proper because the plaintiff lacked standing. Id. at 1253. In all
events, it cannot be read to contradict our unequivocal statement in Federal Recovery
Services, Inc.: “Rule 15 does not permit a plaintiff [to] amend[] its complaint to substitute a
new plaintiff in order to cure the lack of subject matter jurisdiction.” 72 F.3d at 453.
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                                       III.
      We now turn to Alejandro’s claims for unlawful arrest. Here too litigation
missteps doom the claims.
      Federal Rule of Civil Procedure 36(a)(1)(A) allows parties to serve
requests for admissions concerning the truth of matters relating to “facts, the
application of law to fact, or opinions about either.” Rule 36(a)(3) states that a
“matter is admitted unless, within 30 days after being served, the party to
whom the request is directed serves on the requesting party a written answer
or objection addressed to the matter and signed by the party or its attorney.”
And Rule 36(b) further provides that a “matter admitted under this rule is
conclusively established unless the court, on motion, permits the admission to
be withdrawn or amended.”
      Here, Alejandro failed to respond to Defendants’ requests for admissions.
Requests 4 through 12 asked Plaintiffs to admit, in essence, that they did not
have any evidence establishing that every reasonable officer would have been
on notice that the conduct of Officers Smith, Salazar, and Thornton was
unlawful. Alejandro argues that these requests were improper because they
impermissibly deal with pure questions of law. But that characterization is
incorrect. Defendants’ requests for admissions relate to “the application of law
to fact,” as permitted by Rule 36(a)(1)(A), because they ask whether Alejandro
has evidence to overcome qualified immunity. See Mullenix v. Luna, 136 S. Ct.
305, 308 (2015) (noting that an officer is entitled to qualified immunity unless
every reasonable official would have understood that the conduct was
unconstitutional). Although the requests go to the ultimate question of
Defendants’ liability, nothing in the text of Rule 36 prohibits such requests.
See In re Carney, 285 F.3d 415, 419 (5th Cir. 2001) (“Rule 36 allows litigants
to request admissions as to a broad range of matters, including ultimate facts,
as well as applications of law to fact.”). Our Court has previously upheld the
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use of Rule 36 admissions to defeat plaintiffs’ claims. See Williams v. Wells
Fargo Bank, N.A., 560 F. App’x 233, 244 (5th Cir. 2014); Hulsey v. Texas, 929
F.2d 168, 171 (5th Cir. 1991).
      After Plaintiffs missed the deadline to respond to Defendants’ requests
for admissions, they filed a motion to withdraw their deemed admissions. The
district court granted the motion, giving Alejandro another chance to respond
to Defendants’ requests. But even then, she never responded. Thus, the court
correctly deemed that Alejandro admitted to the matters contained in the
requests, which makes them “conclusively established.” FED. R. CIV. P. 36(b).
Because Alejandro admits that she cannot carry her burden to overcome
qualified immunity, Defendants are entitled to summary judgment on her
§ 1983 claims. See King v. Handorf, 821 F.3d 650, 653–54 (5th Cir. 2016).
                                 *     *      *
      At the conclusion of its summary-judgment order, the district court
“expresse[d] sympathy for Ms. Hernandez and for Ms. Alejandro insofar as the
dismissal of their claims is not a product of anything that they themselves have
done or failed to do.” We agree with that sentiment. Unfortunately for the
Plaintiffs, counsel’s mistakes below carry serious consequences that cannot be
cured on appeal. AFFIRMED.




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