     Case: 13-10715   Document: 00512555766      Page: 1   Date Filed: 03/10/2014




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

                                 No. 13-10715                          FILED
                                                                    March 10, 2014
                                                                    Lyle W. Cayce
REINALDO J. TAYLOR,                                                      Clerk

                                            Plaintiff - Appellant
v.

BAILEY TOOL & MANUFACTURING COMPANY,

                                            Defendant - Appellee



                Appeal from the United States District Court
                     for the Northern District of Texas


Before WIENER, HAYNES, and HIGGINSON, Circuit Judges.
HAYNES, Circuit Judge:
      Reinaldo Taylor appeals the district court’s order dismissing his claims
as barred by the applicable statutes of limitations. The parties have narrowed
the issue on appeal to the question of whether a claim barred by limitations
when filed in state court can be revived by Federal Rule of Civil Procedure 15(c)
once the case is removed. Under the facts here, we answer the question “no”
and AFFIRM.
                                       I.
      Taylor was employed by Bailey Tool & Manufacturing Company
(“Bailey”) for approximately a year until his layoff on December 7, 2007. Taylor
filed charges of discrimination with both the Equal Employment Opportunity
Commission (“EEOC”) and the Texas Workforce Commission (“TWC”) on
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                                  No. 13-10715
December 26, 2007. The EEOC sent Taylor his right to sue letter on January
10, 2011. On March 4, 2011, Taylor sued Bailey in Texas state court, alleging
racial discrimination and retaliation in violation of Chapter 21 of the Texas
Labor Code. On December 18, 2012, Taylor filed an amended petition in state
court, adding claims for racial discrimination and retaliation under Title VII
of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., as well
as 42 U.S.C. § 1981.
      Bailey then removed the case to federal court based on the newly
asserted federal-law claims. It then filed a motion to dismiss, contending that
Taylor’s claims were barred by the applicable statutes of limitations.         In
response, Taylor conceded that his state-law claims were time-barred;
however, he argued that his federal-law claims, although filed after the
statutory period, were not time-barred because they related back to the date of
his original petition in state court pursuant to Federal Rule of Civil Procedure
15(c)(1).
      The district court granted Bailey’s motion to dismiss, concluding that the
Texas relation-back rules applied to Taylor’s amended petition filed in state
court and that removal of the claim to federal court did not “resuscitate” the
barred claims. Taylor appeals the district court’s dismissal of his federal-law
claims.
                                       II.
      We review de novo a district court’s grant of a motion to dismiss. See
Equal Access for El Paso, Inc. v. Hawkins, 562 F.3d 724, 726 (5th Cir. 2009).
A motion to dismiss may be granted on a statute of limitations defense where
it is evident from the pleadings that the action is time-barred, and the
pleadings fail to raise some basis for tolling. Jones v. ALCOA, Inc., 339 F.3d
359, 366 (5th Cir. 2003).


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                                       No. 13-10715
       The parties agree that the timeliness of Taylor’s federal claims turns on
whether the Texas relation back statute or Federal Rule 15 applies in this
circumstance. 1 The statute of limitations on Taylor’s state-law claims expired
prior to the filing of his original state court petition, and the statute of
limitations on his federal-law claims expired between the filing of his original
petition and the amended petition. 2 If Federal Rule 15(c) applies, the parties
concede that his federal-law claims relate back to the date of the original
petition because they “assert[] a claim or defense that arose out of the conduct,
transaction, or occurrence set out” in the original petition. FED. R. CIV. P.
15(c)(1)(B). However, if the Texas relation-back statute applies, his federal-
law claims would not relate back to the date of the original petition because
his causes of action in that original petition were “subject to a plea of limitation
when the pleading [was] filed.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.068
(West 2008).
       Therefore, the sole issue is which provision governs: the state relation
back statute or “federal” Rule 15? While this is an issue of first impression for
this court, the two circuit courts to consider the precise issue have applied
analogous state rules, not Federal Rule of Civil Procedure 15. See Pac. Emp’rs




       1   Thus we need not and do not address whether a different result might be reached
if a tolling statute were applicable or if the plaintiff asserted some other basis for relation
back (other than Federal Rule of Civil Procedure 15).

       2 Under Chapter 21 of the Texas Labor Code, Taylor was required to file his petition
within two years of filing a discrimination charge with the TWC, but Taylor did not do so
until three years later. See TEX. LAB. CODE ANN. § 21.256 (West 2006). Taylor’s Title VII
claim had to be filed within ninety days of receiving a right-to-sue letter from the EEOC,
making his filing deadline for his Title VII claim April 11, 2011, more than eighteen months
before he asserted it in his amended petition. See 42 U.S.C. § 2000e-5(f)(1). Taylor’s 42
U.S.C. § 1981 claim had to be filed within four years of his adverse employment action,
making his filing deadline for this claim December 7, 2011, one year before he filed his
amended petition asserting this claim. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369,
383 (2004).
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Ins. v. Sav-A-Lot, 291 F.3d 392, 400–01 (6th Cir. 2002); Anderson v. Allstate
Ins., 630 F.2d 677, 682 (9th Cir. 1980). We reach the same conclusion.
       The Federal Rules of Civil Procedure provide that they “apply to a civil
action after it is removed from a state court.” FED. R. CIV. P. 81(c)(1) (emphasis
added); see also FED. R. CIV. P. 1 (“These rules govern the procedure in all civil
actions and proceedings in the United States district courts, except as stated in
Rule 81.” (emphasis added)). They do not provide for retroactive application to
the procedural aspects of a case that occurred in state court prior to removal to
federal court. See Pac. Emp’rs Ins., 291 F.3d at 400–01 (“As long as the matter
remained in the Kentucky court, it was the Kentucky Rules that applied. The
Federal Rules applied only after removal.” (citations omitted)); Tompkins v.
Cyr, 202 F.3d 770, 787 (5th Cir. 2000) (“The federal rules do not apply to filings
in state court, even if the case is later removed to federal court.”); Kirby v.
Allegheny Beverage Corp., 811 F.2d 253, 257 (4th Cir. 1987) (noting that the
Federal Rules “do not apply to the filing of pleadings or motions prior to
removal”). Accordingly, in analogous circumstances, we have applied state
rules to determine the implications of events that occurred while a case was
pending in state court prior to removal. See Braud v. Transp. Serv. Co., 445
F.3d 801, 803 (5th Cir. 2006) (“[W]hen an action is commenced in state court
is determined based on the state’s own rules of procedure.”); O’Carolan v.
Puryear, 70 F. App’x 751, 751–52 (5th Cir. 2003) (unpublished) (holding that
state rules governed whether the statute of limitations was tolled while the
case was pending in state court prior to removal); 3 Tompkins, 202 F.3d at 787
(holding that state sanctions rules apply to pleadings filed in state court before
removal); Freight Terminals, Inc. v. Ryder Sys., Inc., 461 F.2d 1046, 1052 (5th


       3Although O’Carolan is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).

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                                    No. 13-10715
Cir. 1972) (holding that a “district court must look to state law to ascertain
whether service was properly made prior to removal”). 4 Here, where the claim
as filed in state court was barred at the time of its filing, we see nothing in
Federal Rule 15(c) that would provide for its revival once the case is removed.
See O’Carolan, 70 F. App’x at 752 (“Because O’Carolan’s claim is time barred
in state court, it is also time barred here.” (citation omitted)); In re Meyerland
Co., 960 F.2d 512, 520 (5th Cir. 1992) (en banc) (“A case removed from state
court simply comes into the federal system in the same condition in which it
left the state system.”); Mullen v. Sears, Roebuck, & Co., 887 F.2d 615, 617–18
(5th Cir. 1989) (holding that removal did not deprive a defendant of a
limitations defense available under state law at the time of removal).
      We, therefore, hold that the Texas statute applies here to determine
whether Taylor’s amended petition filed in state court relates back to the date
of his original petition. Because the claims set forth in his original petition
were barred when filed, the amended petition did not relate back under the
Texas statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.068. The district
court did not err in concluding that the claims asserted therein are barred by
the applicable statutes of limitations. Id.
      AFFIRMED.




      4  The general contour of the case law in this area is best summarized by Moore’s
Federal Practice:
       After removal of an action to federal court, state procedural rules will continue
       to govern with respect to any issues that arose prior to removal. Thus, state
       law controls such procedural issues as questions concerning the time at which
       an action is considered commenced, the appearance of parties in the action,
       relation back to initial filing, and the form, sufficiency, filing, and service of
       pleadings. State law also governs sanctions for conduct, such as filing a
       frivolous complaint in state court prior to removal.
14 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 81.04[2] (3d ed. 2013) (emphasis
added) (citations omitted).
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