     Case: 10-60787     Document: 00511589476         Page: 1     Date Filed: 08/31/2011




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

                                                                            FILED
                                                                          August 31, 2011

                                       No. 10-60787                        Lyle W. Cayce
                                                                                Clerk

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

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 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



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                                  No. 10-60787

“re-file” the complaint in the same proceeding to avoid having to re-file after the
case was dismissed.
AFFIRMED.




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