                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS         October 9, 2003
                      FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                      _____________________                     Clerk

                           No. 02-31212
                         Summary Calendar
                      _____________________

                        RAIFORD WINSTEAD,

                      Plaintiff - Appellant

                             versus

 GEORGIA GULF CORPORATION; HYDROCHEM INDUSTRIAL SERVICES, INC.;
 HYDROCHEM, INC.; MASTER MAINTENANCE CORPORATION, also known as
   Master Management Corporation; PAYNE & KELLER COMPANY, INC.

                     Defendants - Appellees

                      _____________________

                           No. 03-30183
                         Summary Calendar
                      _____________________

                     JERRY A. OLDHAM, ET AL.

                           Plaintiffs

                        RAIFORD WINSTEAD

                      Plaintiff - Appellant

                             versus

            LOUISIANA INTRASTATE GAS CO. LLC; ET AL.

                           Defendants

            AMOCO PRODUCTION CO.; AMOCO PIPELINE CO.;
                    AMOCO ENERGY TRADING CORP.

                      Defendants - Appellees
_________________________________________________________________

          Appeals from the United States District Court
               for the Middle District of Louisiana
            District Cause Nos. 99-CV-284 & 02-CV-666
_________________________________________________________________

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1

PRADO, Circuit Judge.

     The above numbered and styled appeals arose from two

lawsuits filed after an accidental release of chemicals at a

Georgia Gulf Corporation plant in Iberville Parish in Louisiana

on September 25, 1996.   Jerry A. Oldham, a plant employee, filed

the first lawsuit (the Oldham lawsuit) in state court on

September 10, 1997.   Oldham named Appellee Amoco Production

Company, Appellee Amoco Pipeline Company, Appellee Amoco Energy

Trading Corporation (collectively, Amoco), Louisiana Intrastate

Gas Company, L.L.C., L.I.G. Liquids Company, L.L.C., and

Louisiana Interstate Gas Corporation (collectively, LIG) as

defendants.   Oldham subsequently amended his complaint and added

Appellant Raiford Winstead and four other plant employees as

plaintiffs and named Equitable Resources, Inc., and LIG’s

insurance carrier, Associated Electric and Gas Insurance

Services, LTD as defendants.   The defendants removed the case to

federal court on March 29, 1999.

     A few weeks after removal, Amoco filed a third-party

complaint against Appellee Georgia Gulf Corporation (Georgia


     1
      Pursuant to 5th Cir. R. 47.5, this 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.

                                   2
Gulf) seeking contractual indemnity.    Although Winstead did not

amend his complaint to add Georgia Gulf as a defendant at that

time, he sought to amend his complaint to add Georgia Gulf and

three of its maintenance contractors–Appellee Master Maintenance

Corporation, Appellee HydroChem Industrial Services, Inc., and

Appellee Payne & Keller Company, Inc. (collectively, the Georgia

Gulf defendants)–as defendants on January 12, 2001.    The district

court denied Winstead’s motion to amend his complaint.

     After the district court denied his motion to amend the

complaint, Winstead filed a second lawsuit (the Winstead lawsuit)

based on the same accident in state court on May 15, 2002 and

sued the Georgia Gulf defendants.    The Georgia Gulf defendants

removed the case to federal court.    On September 16, 2002, the

district court granted the Georgia Gulf defendants’ motion for

summary judgment based on prescription and dismissed Winstead’s

claims.   That action is the subject of Winstead’s first appeal.

     Winstead settled his claims against the LIG defendants and

AEGIS in the first lawsuit   The district court then dismissed

Winstead’s claims against the Amoco defendants on summary

judgment because Winstead failed to present evidence of

causation.   That action is the subject of Winstead’s second

appeal.

      Whether Winstead Should Have Been Permitted to Amend

     In his first issue, Winstead contends the district court


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erred by denying his motion to amend his complaint in the Oldham

lawsuit.   Winstead maintains that denying his motion to amend

punished him for delays he did not create and for his exclusion

from a settlement involving other plaintiffs.

     Rule 15(a) of the Federal Rules of Civil Procedure mandates

that leave to amend "be freely given when justice so requires."

Determining when justice requires permission to amend rests

within the discretion of the trial court.    See Zenith Radio Corp.

v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971); Nilsen v.

City of Moss Point, Miss., 621 F.2d 117, 122 (5th Cir. 1980).

Consequently, this Court will not disturb the district court’s

denial of a motion to amend absent an abuse of discretion.     See

Nilsen v. City of Moss Point, Miss., 621 F.2d at 122.   In

exercising its discretion in considering a motion to amend a

complaint, the district court may consider, among other factors,

undue delay, dilatory motive on the part of the movant, and undue

prejudice to the opposing party by virtue of allowing the

amendment.    See Daves v. Payless Cashways, Inc., 661 F.2d 1022,

1024 (5th Cir. 981).   After reviewing the district court’s

application of those factors to Winstead’s proposed amendment,

the Court concludes that the district court did not abuse its

discretion.

     Undue delay and dilatory motive.    Although Winstead insists

he attempted to amend his complaint only once, Winstead was added


                                  4
as a plaintiff in the Oldham lawsuit on September 24, 1997.

After Winstead joined the lawsuit, the Oldham plaintiffs amended

their complaint on October 3, 1997 to add additional class

representatives and to clarify the class definition, and on March

6, 1998 to add more class representatives.    Although these

amendments occurred before the case was removed to federal court,

the state court issued an order on March 27, 1998 that

established an absolute deadline of July 15, 1998 for adding new

parties.   Winstead never challenged that deadline, and the

deadline remained in full force and effect once the case was

removed to federal court.     See 28 U.S.C. § 1450.

     Although Winstead states that he attempted to add the

Georgia Gulf defendants when he learned of facts appropriate to

amend, Winstead waited 21 months after Amoco filed its third-

party complaint to seek his amendment.    Initially, Winstead may

have been reluctant to sue his employer, but significant

time–over forty months–had elapsed when Winstead sought to amend

his complaint on January 12, 2001.     Although Winstead complains

about his first attorney, “[t]he retention of a new attorney able

to perceive or draft different or more creative claims from the

same set of facts is . . . no excuse for the late filing of an

amended complaint.”   Rhodes v. Amarillo Hosp. Dist., 654 F.2d

1148, 1154 (5th Cir. 1981).    Not only had undue delay occurred by

the time Winstead asked to amend his complaint, waiting to chose


                                   5
to sue his employer until such a later stage of the litigation

was dilatory.

     Undue prejudice.   Winstead also maintains that the Georgia

Gulf defendants would have sustained no prejudice through his

amendment because the defendants had been defending earlier

allegations in consolidated cases.   Winstead’s amendment,

however, would have forced the Georgia Gulf defendants to attempt

to discover the basis for Winstead’s claims more than four years

after Winstead’s alleged exposure to the chemical release.     Even

if the Georgia Gulf defendants had been defending themselves in

related litigation, the Georgia Gulf defendants would have been

entitled to discovery of evidence relevant to Winstead’s claims.

Such discovery would have inevitably delayed the resolution of

the Oldham lawsuit.   A four-year delay would have clearly

prejudiced the ability of the Georgia Gulf defendants to defend

themselves as relevant witnesses may have no longer been

available and memories would have inevitably faded.

     In addition to being prejudiced by the passage of time, the

Georgia Gulf defendants reasonably relied upon the deadline for

adding new parties.   As a third-party defendant to Amoco’s

indemnification claims, the Georgia Gulf defendants had no reason

to participate in discovery related to Winstead’s claims.

Winstead had adequate time to discover evidence about the cause

of his injuries and adequate time to amend his complaint.     “At



                                 6
some point in time[,] delay on the part of a plaintiff can be

procedurally fatal.”    Gregory v. Mitchell, 634 F.2d 199, 203 (5th

Cir. 1981).    That point was surpassed here.   Under these

circumstances, the district court did not abuse its discretion in

denying the proposed amendment.

 Whether the District Erred by Finding No Evidence of Causation

     In his second issue, Winstead argues that the district court

erred in granting Amoco’s motion for summary judgment in the

Oldham lawsuit after determining Winstead failed to present

evidence of causation in support of his claims of Amoco’s

liability.    Winstead maintains genuine issues material issues of

fact exist about Amoco’s liability that preclude summary

judgment.    This Court reviews the district court's grant of a

motion for summary judgment de novo.    See Copeland v.

Wasserstein, Perella & Co., Inc., 278 F.3d 472, 477 (5th Cir.

2002).

     Rule 56 of the Federal Rules of Civil Procedure "mandates

the entry of summary judgment, after adequate time for discovery

and upon motion, against a party who fails to make a showing

sufficient to establish the existence of an element essential to

that party's case, and on which that party will bear the burden

of proof at trial."    See Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986).    In this case, Amoco argued that no evidence existed

that the natural gas it supplied to Georgia Gulf contained the


                                  7
element alleged to have caused the chemical release that injured

Winstead.   To raise a question of fact about this question,

Winstead was required to present expert testimony because the

cause of the chemical release is beyond the understanding of an

untrained lay person and because specialized, technical knowledge

would assist the trier of fact in determining the cause of the

chemical release.    See Batiste v. General Motors Corp., 802 So.2d

686, 690 (La. Ct. App. 2001); FED. R. EVID. 702.

     To meet his burden of presenting evidence of causation,

Winstead relied on preliminary expert reports authored by Georgia

Gulf’s experts and the deposition testimony of Georgia Gulf’s

corporate representative.    In the reports, Georgia Gulf’s experts

identified Amoco’s natural gas as the most likely source of the

reactive nitrogen that formed the tris that caused the chemical

release.    Those reports, however, are not competent summary

judgment evidence.

     Rule 56(e) of the Rules of Civil Procedure provides:

     Supporting and opposing affidavits shall be made on
     personal knowledge, shall set forth such facts as would
     be admissible in evidence, and shall show affirmatively
     that the affiant is competent to testify to the matters
     stated therein. Sworn or certified copies of all
     papers or parts thereof referred to in an affidavit
     shall be attached thereto or served therewith.

FED. R. CIV. P. 56(e) (emphasis added).   The Georgia Gulf experts

may have been competent to testify about the matters discussed in

their expert reports, but the preliminary reports were never



                                  8
sworn or certified.    Because the reports were neither sworn nor

verified, the reports did not constitute competent summary

judgment evidence.    Consequently, the reports did not raise a

genuine issue of material fact about whether the natural gas

Amoco supplied to Georgia Gulf contained the element alleged to

have caused the chemical release that injured Winstead, even if

supported by the deposition testimony of Georgia Gulf’s corporate

representative.   In contrast, Amoco presented substantial summary

judgment evidence that indicated its natural gas did not contain

any element that might have contributed to the chemical release.

As a result, Amoco was entitled to summary judgment.

Consequently, the district court did not err by finding no

evidence of causation and granting summary judgment in Amoco’s

favor.

         Whether Claims Against Georgia Gulf Are Prescribed

     In his third issue, Winstead argues that the district court

erred in granting summary judgment in favor of the Georgia Gulf

defendants in his second lawsuit, the Winstead lawsuit.    Winstead

maintains the district court erred in applying the law in regard

to the applicability of statutory immunity to all named

defendants and    in determining Winstead’s claims were prescribed.

While the district court’s analysis of Georgia Gulf’s immunity is

somewhat unclear, it is clear that Winstead’s claims are

prescribed under Louisiana law.


                                  9
     Louisiana law provides for a one-year limitations period for

torts such as Winstead’s claims.      See LA. CIV. CODE art. 3492

(delictual actions are subject to a liberative prescription of

one year).   In his complaint, Winstead complained about acts that

occurred in September 1996.    Winstead, however, did not file his

complaint until May 13, 2002–over five years after September

1996.   As a result, the face of Winstead’s complaint bars his

claims.

     When the plaintiff’s claims are prescribed on its face, the

burden shifts to the plaintiff to prove the prescription period

was suspended or prescribed.    See Lima v. Schmidt, 595 So.2d 624,

628 (La. 1992).   Winstead maintains his claims in the Oldham

lawsuit interrupted prescription in the Winstead lawsuit because

the Georgia Gulf defendants were joint tort feasors with LIG and

Amoco in the Oldham lawsuit.   Although article 2324(c) of the

Louisiana Civil Code states that “[i]nterruption of prescription

against one joint tortfeasor is effective against all joint

tortfeasors,” Winstead did not establish that the Georgia Gulf

defendants were joint tort feasors with any LIG or Amoco.

     “If the plaintiff's basis for claiming interruption is

solidary liability between two parties, then the plaintiff also

bears the burden of proving that solidary relationship.”       Vincent

v. Tusch, 618 So.2d 385, 385 (La., 993).      Winstead provided no

evidence that established that the Georgia Gulf defendants were


                                 10
joint tort feasors with LIG or Amoco.   As a result, Winstead

failed to demonstrate that his claims in the Oldham lawsuit

interrupted prescription in the Winstead lawsuit.   Consequently,

the district court did not err by determining that Winstead’s

claims in the Winstead lawsuit were prescribed.

                           Conclusion

     Winstead maintains in his last issue that the district court

erred in the Winstead lawsuit by determining the Georgia Gulf

defendants were immune from suit.   This Court need not reach that

issue, however, because Winstead’s claims were prescribed.

Having determined that the district court did not err in either

the Oldham lawsuit or the Winstead lawsuit, this Court affirms

the judgment of the district courts.

AFFIRMED




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