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

                                                 FILED
                                                                           August 31, 2009
                                     No. 08-41359
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




RAYMOND LEBOUEF,

                                                   Plaintiff-Appellant,

versus

ISLAND OPERATING COMPANY, INC.,

                                                   Defendant-Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 3:06-CV-613




Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


                                              I.
       Raymond Lebouef was injured on August 23, 2005, while working on a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                        No. 08-41359

fixed oil platform and sued Newfield Exploration Company on September 29,
2006, under the Outer Continental Shelf Lands Act. Lebouef amended his com-
plaint on September 18, 2007, to add Island Operating Company, Inc. (“Island
Operating”) as a defendant. The parties do not dispute the applicability of Tex-
as’s two-year statute of limitations to this personal-injury action.
       Island Operating’s answer to the second amended complaint did not raise
a limitations bar but only stated, without explanation, “The Complaint filed
herein fails to state a claim upon which relief can be granted.” Several months
later, after participating in discovery and further proceedings, both defendants
moved for summary judgment on a substantive issue that Lebouef does not raise
on appeal; Island Operating also argued that the suit is barred by limitations.
       The district court held that the limitations defense was not waived, be-
cause, it stated, a court can raise it sua sponte; the court granted summary judg-
ment for both defendants. Lebouef appeals, claiming (1) that Island Operating
cannot rely on limitations, because it was not properly pleaded as an affirmative
defense; (2) the district court should not have raised the limitations bar sua
sponte; and (3) limitations was tolled.


                                               II.
       A court may raise a limitations bar sua sponte only in a limited number of
particular circumstances. For example, in a suit by a prisoner under 42 U.S.C.
§ 1983, the district court has a statutory responsibility to screen out frivolous
suits.1



       1
         See 28 U.S.C. § 1915A (requiring the court to review prisoner suits and dismiss any
complaint that “is frivolous, malicious, or fails to state a claim on which relief may be grant-
ed.”); 28 U.S.C. § 1915(e)(2) (authorizing sua sponte dismissal of in forma pauperis petitions
that are frivolous, malicious, or fail to state a claim); Stanley v. Foster, 464 F.3d 565, 567-68
& n.2 (authorizing sua sponte dismissal of § 1983 suit on statute of limitations grounds under
§ 1915(e)).

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                                  No. 08-41359

      A court may also dismiss a suit sua sponte if a limitations bar destroys fed-
eral jurisdiction. “It is well-established that, if a waiver of sovereign immunity
contains a limitations period, a plaintiff’s failure to file his action within that
period deprives the court of jurisdiction.” Gandy Nursery, Inc. v. United States,
318 F.3d 631, 637 (5th Cir. 2003). A government defendant who fails to assert
limitations as an affirmative defense has thus not waived it, because the defect
in the claim means that the court does not have jurisdiction to hear the suit at
all. Id. “[S]ubject-matter jurisdiction is not waivable, and the federal courts are
under a continuing duty to inquire into the basis of jurisdiction in the district
court.” Warren v. United States, 874 F.2d 280, 281-82 (5th Cir. 1989).
      Both of those situations are special cases in which the court has some par-
ticular duty to decide the limitations issue because of a statutory command or
a jurisdictional limitation. They are exceptions to the general rule that a defen-
dant must raise an affirmative defense in his answer to the complaint. Federal
Rule of Civil Procedure 8(c) requires that “[i]n responding to a pleading, a party
must affirmatively state any avoidance or affirmative defense, including . . .
statute of limitations.” If the affirmative defense is not included in the com-
plaint, it is waived. Davis v. Huskipower Outdoor Equip. Corp., 936 F.2d 193,
198 (5th Cir. 1991). Once the defendant has waived that defense, it “cannot
revive the defense in a memorandum in support of a motion for summary judg-
ment,” Funding Sys. Leasing Corp. v. Pugh, 530 F.2d 91, 96 (5th Cir. 1976), as
Island Operating tried to do here. It follows that in an ordinary civil case, where
the district court has no special duty to examine the pleadings, the affirmative
defense of statute of limitations can be waived and may not be raised by the
court sua sponte. See Eriline Co. v. Johnson, 440 F.3d 648, 657 (4th Cir. 2005).
      Island Operating argues that it properly raised the limitations bar in its
answer by its statement that Lebouef failed to state a claim on which relief could
be granted. That statement was not sufficient to provide any notice to Lebouef

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that there was a limitations problem or that Island Operating intended to raise
a limitations defense. True, “[t]he pleading of affirmative defenses is governed
by the same liberal standards as those for a complaint.” Marine Overseas Servs.,
Inc. v. Crossocian Shipping Co., Inc., 791 F.2d 1227, 1233 (5th Cir. 1986). But
given that there are nineteen affirmative defenses listed in rule 8(c), as well as
other deficiencies that can cause failure to state a claim, the defendant must pro-
vide at least some information that alerts the plaintiff to what the alleged prob-
lem is. Island Operating’s unelaborated statement of failure to state a claim did
not provide enough information to preserve its affirmative defense.
      Island Operating also claims that Lebouef had actual notice of the limita-
tions issue because of informal conversations that took place out of court be-
tween the attorneys. The content of the conversations is disputed, and, because
they are not in the record, we take no notice of them, even assuming, arguendo,
that the existence of such discussions would make a difference.
      The summary judgment is REVERSED, and this matter is REMANDED
for further proceedings. We express no opinion on how this litigation should pro-
ceed on remand.




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