     Case: 16-41446      Document: 00513940181         Page: 1    Date Filed: 04/05/2017




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

                                    No. 16-41446
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                           April 5, 2017
                                                                           Lyle W. Cayce
TODD J. OUBRE,                                                                  Clerk


              Plaintiff - Appellant

v.

SCHLUMBERGER, LIMITED; SCHLUMBERGER TECHNOLOGY
CORPORATION; SCHLUMBERGER WELL SERVICES,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:15-CV-111


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Appellant Todd J. Oubre, a Louisiana resident, sued Schlumberger
Limited, Schlumberger Technology Corporation, and Schlumberger Well
Services (collectively, “Schlumberger”}, commercial entities with their
principal places of business located in Texas, for injuries allegedly resulting
from a collision that occurred at a Schlumberger-owned facility in Houma,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41446
Louisiana. The magistrate judge recommended granting summary judgment
in favor of Schlumberger based on statute-of-limitations grounds and the
district court, writing a separate opinion, agreed. For the following reasons,
we AFFIRM.
      Oubre was an independent contractor working for United Vision
Logistics (“UVL”), a trucking company that was providing carrier services to
Schlumberger at the Houma, Louisiana facility. UVL was furnishing these
services under a Master Service Agreement (“MSA”) between Schlumberger
and Dynasty Transportation, one of UVL’s predecessors. The MSA contained
a forum-selection clause that stated Texas law would govern any disputes
arising between the parties.
      On May 14, 2014, Oubre was sitting in his parked truck at the Houma
facility when it was struck by a forklift operated by a Schlumberger employee.
He allegedly suffered personal injuries as a result, and filed suit against
Schlumberger. Under Louisiana law, Oubre’s claim was filed one day beyond
the prescriptive period and is time barred. La. Civ. Code art. 3492. He insists
his claim was asserted within the proper statutory period because it was
brought within Texas’ two year statute of limitations period that governs
personal-injury claims. Tex. Civ. Prac. & Rem. Code § 16.003 (a).
      Oubre must also satisfy the requirements of section 71.031 of the Texas
Civil Practice and Remedies Code, which requires that a non-resident plaintiff
bring a personal injury claim within the Texas statute of limitations, as well
as “within the time provided by the laws of the foreign state in which the
wrongful act, neglect, or default took place.” Tex. Civ. Prac. & Rem Code
§ 71.031(a).   Accordingly, section 71.031 will preclude Oubre’s suit by
borrowing Louisiana’s one year prescription period, unless he is somehow
assisted by the Schlumberger-Dynasty MSA. Id.; La. Civ. Code art. 3492.


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                                  No. 16-41446
      To support his claimed entitlement to Texas’ two year statute of
limitations, Oubre asserts that he is either a third-party beneficiary of the
Schlumberger-Dynasty MSA, or that Schlumberger is “estopped” by the
contract from denying the adoption of Texas law. Both positions are incorrect.
      Oubre is not a third-party beneficiary under Texas law. Texas courts
presume that parties intend to contract for themselves only, and “in the
absence of a clear and unequivocal expression of the contracting parties’ intent
to directly benefit a third party, courts will not confer third-party beneficiary
status by implication.” Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011); see
also MCI Telecomms. Corp. v. Tex. Util. Elec. Co., 995 S.W.2d 647, 652 (Tex.
1999) (“[T]here is a presumption against, not in favor of, third-party
beneficiary agreements.”). Absent evidence of express intent to benefit a third
party, any benefit flowing to a third party is merely incidental and does not
confer a right to enforce the contract. Tawes, 340 S.W.3d at 425.
      Under the present facts, it is clear that Oubre was not an intended
beneficiary of the Schlumberger-Dynasty MSA. The parties entered into the
MSA agreement before Oubre was hired, and could not have contemplated any
benefit to him directly when they entered into it. Even if the agreement may
have ultimately resulted in some general benefit to Dynasty employees, those
benefits are merely incidental. Further, any such benefits would not apply to
Oubre because he was a self-employed independent contractor at the time of
his alleged injuries.
      Oubre’s estoppel claim fails for similar reasons. Because Oubre was
neither a party to the MSA nor a third-party beneficiary of it, he lacks standing
to enforce it. Id. (stating a third party may only sue to enforce a contract it did
not sign “when the parties to the contract entered the agreement with the clear
and express intention of directly benefitting the third party”). Without third-
party beneficiary status, the cases cited by Oubre in support of his estoppel-
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                                 No. 16-41446
by-contract claim do not apply in this situation. This court does not create new
Texas law, pursuant to the Erie Doctrine. See Erie R.R. Co. v. Tompkins, 304
U.S. 64, 72–78, 58 S. Ct. 817, 819–22, (1938).
      Even assuming that Oubre could claim the benefit of the MSA’s choice of
law provision, it still adopts Texas law, which undeniably includes section
71.031(a). Contrary to Oubre’s argument, this does not pose a renvoi issue,
because the Texas provision incorporates out-of-state law solely for limitations
purposes, not for broad choice-of-law issues. Tex. Civ. Prac. & Rem. Code §
71.031(c) (“The court shall apply the rules of substantive law that are
appropriate under the facts of the case.”). In any event, Oubre has cited no
Texas cases concerning renvoi implications.
      Therefore, Oubre’s suit is barred by section 71.031(a), even under the
MSA, unless he can meet the statute-of-limitations requirements of both Texas
and Louisiana. Because Oubre filed suit one year and one day after the alleged
accident occurred, he is unable to satisfy Louisiana’s one year prescriptive
period and thus also fails to meet the requirements of Texas’ section 71.031(a).
Accordingly, the district court properly granted Schlumberger’s motion for
summary judgment.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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