                      UNITED STATES COURT OF APPEALS
                           For the Fifth Circuit



                               No. 02-30098



                        BLACK CRYSTAL COMPANY INC.

                                                   Plaintiff-Appellant,


                                    VERSUS


                     ASSURANCEFORENINGEN SKULD,
                  a Norwegian insurance association

                                                      Defendant-Appellee.




             Appeal from the United States District Court
                 For the Eastern District of Louisiana
                               00-CV-3479-T
                                    January 8, 2003


Before KING, Chief Judge, and DeMOSS and CLEMENT Circuit Judges.

PER CURIAM:*

BACKGROUND

     In   July   of   1981,   the   Plaintiff/Appellant,   Black   Crystal

Company ("Black Crystal"), chartered a vessel that was owned by


     *
       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that this opinion should not be published and is not precedent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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Polykyn Navigation Corporation ("Polykyn") and Landaf Shipping

Limited ("Landaf").   Numerous disputes arose out of the charter

contract, and eventually Black Crystal sued Polykyn and Landaf in

the United States District Court for the Western District of

Kentucky (the "Kentucky suit").       A default judgment was entered

against Landaf and Polykyn and in favor of Black Crystal in the

Kentucky suit on June 6, 1986.   That judgment was in the amount of

$11,312,416.22 plus interest from the date of judgment.1

     On October 6, 2000, the Civil District Court for the Parish of

Orleans entered a default judgment (the "Orleans judgment") in

favor of Black Crystal and against Landaf and Polykyn.     The Court

in the Orleans judgment ordered that the judgment in the Kentucky

suit “be entitled to full faith and credit in Louisiana and made

executory in Louisiana pursuant to the provisions of the Uniform

Enforcement of Foreign Judgments Act found in the Louisiana Revised

Statutes at 13:4241, et seq.”

     On November 22, 2000, Black Crystal filed the instant suit

against the defendant/appellee Assuranceforeningen Skuld (“Skuld”)

alleging that Skuld is the insurer of Landaf and Polykyn and is

therefore liable to Black Crystal based on the revived judgments

entered against Landaf and Polykyn. Black Crystal alleged that the

Louisiana Direct Action Statute, which permits suits by an injured

party directly against the insurer of the tortfeasor, is applicable

     1
       In 1995, a Greek court recognized the Kentucky judgment
but that Greek court’s decision has no affect on this case.

                                  2
in the matter and gives the district court jurisdiction over the

defendant.

     On July 26, 2001, Skuld filed a Motion to Dismiss based on

Louisiana prescription.          The Motion was granted by the district

court on     December    12,     2001,   and   a   judgment   dismissing   Black

Crystal’s claims with prejudice was entered on December 13, 2001.

     Black Crystal now appeals claiming the district court erred in

granting the motion to dismiss and in not affording Black Crystal

an opportunity to amend its pleading.

                                   DISCUSSION

I.   Whether the district court erred in granting Skuld’s motion to
     dismiss.

     The grant of a motion to dismiss is reviewed de novo.                  St.

Paul Mercury Ins. Co. V. Williamson, 224 F.3d 425, 440 n.8 (5th

Cir. 2000).

     Although Skuld was not named in the Kentucky suit or the

Orleans judgment, Black Crystal filed suit against Skuld in the

Eastern District of Louisiana 14 years after the conclusion of the

Kentucky suit in order to enforce the judgment.                  Black Crystal

alleges that the Louisiana Direct Action Statute, La. Rev. Stat.

§22:655, allows recovery against Skuld in this suit.                The Direct

Action     Statute      allows     an    injured     party,    under   certain

circumstances, to file suit directly against the insurer of an

alleged tortfeasor.       La. Rev. Stat. §22:655.

     Black Crystal’s claim has no merit for two alternate reasons.

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First, the Direct Action Statute does not apply to breach of

contract cases.    Taylor v. Fishing Tools, Inc., 274 F.Supp. 666,

673 (E.D. La. 1967).   According to the briefs and record in this

case, this dispute concerns a breach of contract and therefore the

Direct Action Statute would not apply.       Second, even if Black

Crystal’s underlying claim is one in tort, an action under the

Direct Action Statute is subject to a prescriptive period, which

has expired because the Kentucky suit ended 14 years before the

filing of the present action and Skuld was never a party to the

Kentucky action.   See Etienne v. Nat’l Auto. Ins. Co., 747 So. 2d

593, 596 (La. Ct. App. 1999), aff'd, 759 So. 2d 51 (La. 2000);

Reeves v. Global Indemnity Co. Of New York, 168 So 488, 489 (La.

1936).

     Moreover, the fact that Black Crystal registered a foreign

judgment in another state does not change the result in this case.

Registration of a foreign judgment is only an enforcement device

and the registered judgment can be accorded no greater effect than

the foreign judgment upon which it is based.        La. Rev. Stat.

§13:4242.   The foreign judgment of Kentucky is against Landaf and

Polykyn; Skuld is not a party.   The revival and registration of the

judgments against Landaf and Polykyn in Orleans does not create a

right of action against the alleged insurer who was not named in

any of the other suits.    See Welltech, Inc. v. Abadie, 666 So.2d

1234, 1236 (La. Ct. App. 1996) (holding that all substantive


                                  4
defenses are available against enforcement of foreign judgments),

writ den’d, 672 So. 2d 690 (La. 1996).

      The other issues Black Crystal has raised on appeal have no

affect on the outcome of this case.              First, Black Crystal claims

that Skuld should not have been allowed to bring its motion to

dismiss after it had answered the complaint.                 Black Crystal claims

that the motion was a Rule 12(b)(6) motion to dismiss and the court

had   no    authority     to   grant   the   motion     at   that    stage   in   the

litigation and furthermore that Black Crystal’s ability to respond

to the motion was unduly restricted by the court.                     Skuld in its

answer stated as a defense that Black Crystal had failed to state

a claim upon which relief could be granted but its motion to

dismiss simply requested the court dismiss the “complaint because

it is time barred.”            The district court did refer to the Rule

12(b)(6) standard for dismissal.             The court, however, treated the

motion to dismiss like a Rule 56 summary judgment motion and

considered information outside the pleadings, which is permissible

under Rule 12(b).         FED. R. CIV. P. 12(b).         Also, it appears that

Black      Crystal   neither      made    an     objection      to    the    court’s

consideration of the motion to dismiss as barred by procedural

rules nor was Black Crystal prevented from bringing any other

information to the court’s attention.              Therefore, Black Crystal’s

claims are without merit and the district court properly granted

Skuld’s     motion   to    dismiss     because    the   case    could   have      been



                                         5
dismissed as provided for under Rule 56.

       Second, Black Crystal claims that Skuld had notice of the

Kentucky    suit     and   therefore    is   barred    from    asserting     the

prescription defense. However, Black Crystal asserts no facts that

Skuld had notice of the suit in the legal sense but only that Skuld

knew of the Kentucky suit.      Nonetheless, Black Crystal’s assertion

is irrelevant.       See Brady v. Bernard, 230 So. 2d 413, 415 (La. Ct.

App. 1970) (stating “[w]e have no doubt [Defendant] had actual

knowledge of the pendency of [Plaintiff’s] initial suit . . . but

that    ha[s]   no    bearing   on     the   running   of     prescription    in

[Defendant’s] favor”).

       Because the Direct Action Statute does not apply to breach of

contract cases, the instant suit is barred by prescription; and,

because the registration of a foreign judgment can be given no

greater effect than the foreign judgment upon which it is based,

the district court did not err in granting Skuld's Motion to

Dismiss.

II.    Whether Black Crystal should have been given the opportunity
       to amend its complaint.

       A review of the docket sheet reveals that during the pendency

of the proceeding, Black Crystal never requested the opportunity to

amend its pleading.        Therefore, the district court did not err

because it never denied Black Crystal the opportunity to amend

because the court was never presented with the opportunity to make

such a denial. On appeal, Black Crystal neither cites authority to

                                        6
support its claim that the district court erred nor explains why it

never requested the opportunity to amend.    Rather, Black Crystal

simply claims what it would have done if it had the opportunity to

redo the litigation.   Therefore the district court did not err.

                            CONCLUSION

     The decision of the district court is affirmed.   AFFIRMED.




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