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

                                                 FILED
                                                                           July 2, 2009
                                    No. 09-30043
                                  Summary Calendar                   Charles R. Fulbruge III
                                                                             Clerk


ALFRED SEARLS
                                                 Plaintiff-Appellant
v.

INSURECO AGENCY AND INSURANCE SERVICES; AMERICAN SECURITY
INSURANCE CO

                                                 Defendants-Appellees



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:07-CV-4250



Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Alfred Searls appeals the district court’s dismissal of his property-damage
insurance complaint. The district court granted summary judgment against
Searls because he failed to sue the defendant American Security Insurance Co.
(“ASI”) within the statute of limitations. We AFFIRM the district court’s
judgment for the same reasons.
       Plaintiff filed his complaint in the district court on August 22, 2007.



       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th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.
Despite numerous opportunities to serve the defendants-appellees within 120
days, i.e., by December 20, 2007, the plaintiff failed to do so. On December 14,
2007, the Court ordered the plaintiff to appear before the court on January 16,
2008 and show cause why the case should not be dismissed for failure to serve
the defendants. The plaintiff did not make an appearance on January 16 and
the district court dismissed the complaint without prejudice on January 16, 2008
for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) and the
Uniform Local Rule of the United States District Courts for the Eastern, Middle,
and Western Districts of Louisiana 41.3E. On January 27, 2008, the plaintiff
filed a motion for reconsideration. The district court granted the motion but
ordered the plaintiff to “file evidence of service of process on defendant no later
than Thursday, April 10, 2008. Failure to do so will result in the dismissal of the
. . . case.”
       Searls made two attempts to comply with the district court’s order. First,
Searls filed into the record an executed return of service upon Insureco, showing
that the summons and complaint had been delivered by express mail to a post
office box address in Dallas, Texas on April 2, 2008. On April 16, 2008, Searls
filed into the record another executed return of service upon Insureco, showing
that the summons and complaint had been delivered by certified mail to an
address in Orange, California on April 11, 2008.1 Insureco timely answered the
complaint on May 29, 2008. Searls then filed an amended complaint on October
1, 2008, which substituted ASI for ABC Insurance Company, a placeholder used
in the original complaint for an unknown insurance company. ASI answered the
amended complaint on October 31, 2008. However, it is undisputed that the
statute of limitations for the plaintiff’s action ran on September 1, 2007. The
amended complaint was therefore filed thirteen months after the statute of


       1
           There is no dispute that Insureco has an office at the Orange, California address.
limitations had already run. Searls contends that the amended complaint should
relate back to the timely-filed original complaint pursuant to Federal Rule of
Civil Procedure 15. Under Rule 15(c)(C):
      An amendment to a pleading relates back to the date of the original
      pleading when . . .
            (C) the amendment changes the party or the naming of the party
            against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and
            if, within the period provided by Rule 4(m) for serving the summons
            and complaint, the party to be brought in by amendment:
                   (i) received such notice of the action that it will not be
                   prejudiced in defending on the merits; and
                   (ii) knew or should have known that the action would have
                   been brought against it, but for a mistake concerning the
                   proper party's identity.
Because Searls appeals only the dismissal of his claims against ASI on statute
of limitations grounds, the pertinent issue in this appeal is whether ASI received
notice of the action or “knew or should have known that the action would have
been brought against it, but for a mistake concerning the proper party’s
identity.” On appeal, Searls contends that ASI received notice of the action
within the Rule 4(m) time period, i.e., by April 10, 2008, because Insureco had
received notice of the action within the Rule 4(m) time period and ASI and
Insureco share an “identity of interest.” See Jacobson v. Police Officer Osborne,
133 F.3d 315, 320 (5th Cir. 1998) (“[O]ur court will infer notice if there is an
identity of interest between the original defendant and the defendant sought to
be added or substituted.”). Before we can reach the question of whether ASI and
Insureco share an “identity of interest,” we must first decide if the district court
properly concluded in summary judgment that Insureco did not receive notice
of the action within the Rule 4(m) time period.
      The court reviews de novo the district court's award of summary judgment.
See In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). “The

                                                                                  3
judgment sought should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” F ED. R. C IV. P. 56(c). The court “view[s] all evidence in the light
most favorable to the nonmoving party and draw[s] all reasonable inferences in
that party’s favor.” In re Katrina Canal Breaches Litig., 495 F.3d at 205-06. “A
genuine issue of material fact exists ‘if the evidence is such that a reasonable
jury could return a verdict for the non-moving party.’” Id. at 206 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
      On appeal, Searls focuses solely on his executed return of service upon
Insureco showing that the summons and complaint had been delivered by
express mail to a post office box address in Dallas, Texas on April 2, 2008 as
evidence that Insureco had received notice within the Rule 4(m) time-period. A
person named “R. Estes” signed the receipt of delivery and thereby
acknowledged timely delivery to that post office box address. In response, the
defendants submitted an affidavit from Sylvia Taylor, an Insureco employee,
who stated that “Insureco does not have offices in Dallas, Texas” and that “R.
Estes” is not an Insureco employee. Taylor also stated that Insureco did not
receive the April 2 letter until counsel presented it for review in December, 2008.
In addition, Searls admits that on March 26, 2008, he had sent the same
documents to the Dallas address but had not received a return-receipt. Both
parties also highlight the fact that the plaintiff had sent a letter to the Dallas
address in 2006, which eventually made its way to ASI some fifteen days later.
We agree with the district court that, based on the record before us, there is no
genuine dispute concerning a necessary and material fact to establish timely
service -- that Insureco owns or can be found at the Dallas, Texas post-office box



                                                                                   4
address. There is no evidence that any officer or agent from Insureco could be
served at the address. F ED. R. C IV. P. 4(h)(1)(B). Searls’ evidence only shows the
simple fact that a “R. Estes” is receiving mail at the post-office box and that mail
is sometimes belatedly forwarded to Insureco and ASI. Searls does not identify
any record evidence from which we can reasonably infer that Insureco owns the
Dallas, Texas post-office box or that R. Estes is an Insureco employee, especially
in light of the unrebutted contrary evidence from Sylvia Taylor.
            We therefore AFFIRM the district court’s ruling.




                                                                                   5
