     Case: 11-11063     Document: 00511821093         Page: 1     Date Filed: 04/13/2012




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

                                                                            FILED
                                                                           April 13, 2012

                                     No. 11-11063                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



VICTORIA FONSECA,

                                                  Plaintiff–Appellant
v.

USG INSURANCE SERVICES, INCORPORATED; UNIVERSAL
SPECIALTY UNDERWRITERS, INCORPORATED,

                                                  Defendants–Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:10-CV-884


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        From July 2001 until August 2006, Plaintiff–Appellant Victoria Fonseca
worked for USG Insurance Services, Inc. (“USG”) as the branch manager of
USG’s Arlington, Texas branch. Throughout Fonseca’s employment, Gerald W.
Horton served as USG’s President. In November 2005, Horton offered Fonseca
the opportunity to enter into a deferred compensation agreement (“DCA”).


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-11063

Subsequently, on August 29, 2006, USG fired Fonseca. Shortly thereafter, on
September 8, 2006, Fonseca learned that USG did not intend to pay her under
the DCA because USG had never received a signed acceptance.
      On May 7, 2010, Fonseca filed an arbitration demand with the American
Arbitration Association (“AAA”). On July 16, 2006, the AAA declined to serve
as a arbitrator because USG failed to pay the required arbitration fees for this
type of dispute. Fonseca then filed a suit on October 13, 2010 in Texas state
court alleging fraud and breach of contract against Defendant–Appellees USG
and Universal Specialty Underwriters, Inc. (collectively “the Defendants”).
Defendants removed to district court on the basis of diversity. On summary
judgment, the district court held that Fonseca’s suit was time-barred based on
Texas’s four-year statute of limitations for these claims. Tex. Civ. Prac. & Rem.
Code § 16.004 (fraud); id. at § 16.051 (breach of contract).
      We review a district court’s decision refusing to exercise its equitable
tolling powers for abuse of discretion. Granger v. Aaron’s, Inc., 636 F.3d 708, 712
(5th Cir. 2011). The doctrine of equitable tolling “preserves a plaintiff’s claim
when strict application of the statue of limitations would be inequitable.” United
States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000). It principally applies
when the “plaintiff is actively misled by the defendant . . . or is prevented in
some extraordinary way from exerting his rights.” Id. Fonseca admits that
under Texas’s four-year statute of limitations, her claims expired on September
8, 2010 but contends that the statute of limitations should have been tolled
during the period that the AAA considered her arbitration demand.
      We have previously stated, albeit in dicta, that a “demand for arbitration
does not toll the statute of limitations.” United States ex rel. Portland Const. Co.
v. Weiss Pollution Control Corp., 532 F.2d 1009, 1013 (5th Cir. 1976). In
Portland Construction, we held that a claimant who demanded arbitration is not
required to wait until the outcome of the arbitration to file a lawsuit. Id. In this

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                                  No. 11-11063

case, Fonseca could have (and should have) filed her suit within the statute of
limitations and, thereafter, sought a stay of the action pending arbitration. See
id. Such a course would have guaranteed that the lawsuit was brought within
the limitations period without waiving any right to arbitration which may have
existed. Moreover, Fonseca has shown no evidence that she was misled by
defendants or that she was prevented from pursuing her cause in any way. In
fact, the record reveals that Fonseca had ample time both before and after the
AAA’s refusal to arbitrate her case in which to file her lawsuit, yet she took none
of the steps “recognized as important by the statute before the end of the
limitations period.” Granger, 636 F.3d at 712. Therefore, in light of our decision
in Portland Construction and the facts of this case, we cannot say that the
district court abused its discretion when it declined to equitably toll the statute
of limitations.
      AFFIRMED.




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