     Case: 12-30011     Document: 00511939692         Page: 1     Date Filed: 07/31/2012




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

                                                                            FILED
                                                                           July 31, 2012

                                     No. 12-30011                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



SAM SOLOMON; TALAL SOLIEMAN; ABDULLAH SOLIEMAN,

                                                  Plaintiffs-Appellants
v.

STEVE SPALITTA; OFFICER A, of the Louisiana State Alcohol and Tobacco
Control, Individually; KEITH LANDINE; FRANKLIN SUPPLY,
INCORPORATED, a Louisiana Corporation,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:06-CV-604


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Two brothers and their father filed a Section 1983 suit against officers of
the Louisiana State Alcohol and Tobacco Control Board as well as a Louisiana
business and its owner. The district court granted summary judgment to the
defendants. We AFFIRM.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30011

                                     FACTS
      Sam Solomon owned a store in Baton Rouge, Louisiana that sold
cigarettes. To replace cigarettes lost in a burglary, Sam and his brother Talal
Solieman, along with their father Abdullah Solieman, arranged to purchase a
large number of cigarettes from Franklin Supply, Inc. A dispute arose over
payment.      On the day of delivery, Franklin Supply demanded immediate
payment. The plaintiffs asserted they had ten days to pay. When payment was
not made contemporaneously with delivery, and after the plaintiffs moved the
cigarettes to a secure storage facility, Franklin Supply filed a criminal complaint
against Sam Solomon, alleging he stole $94,000 worth of cigarettes. Franklin
Supply also contacted the Louisiana Department of Revenue and Taxation’s
Office of Tobacco Control. In response, the office began investigating the
plaintiffs.
      As part of the investigation, members of the Office of Tobacco Control,
including defendant Steve Spalitta, questioned Abdullah Solieman and searched
his business.    After that search, Spalitta demanded access to Abdullah’s
apartment. After searching it, Spalitta arrested Abdullah. During the process,
Spalitta accused the plaintiffs of being terrorists who used the proceeds of
cigarette sales to fund terrorism in Afghanistan. Solomon was also forcibly
detained. Around the time of Solomon’s detention, Spalitta contacted authorities
in Illinois, where Talal was located. Spalitta advised the Illinois authorities,
along with the Department of Homeland Security and FBI, that Talal was a
terrorist. Upon questioning Talal, the federal government found no merit in
Spalitta’s allegation.    All criminal charges against the plaintiffs were
subsequently dismissed.


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                                       No. 12-30011

       About twenty months later, the plaintiffs filed a Section 1983 suit against
the defendants. Although all the alleged acts by the defendants occurred within
Louisiana, the plaintiffs originally filed their lawsuit in the United States
District Court for the Northern District of Illinois. The defendants appeared
before the federal court in Illinois and raised numerous objections, including lack
of personal jurisdiction and improper venue. The district court agreed and,
pursuant to 28 U.S.C. § 1406, transferred the case to the United States District
Court for the Middle District of Louisiana. Thereafter, the defendants moved for
summary judgment. The district court in Louisiana granted the defendants’
motions. The plaintiffs appeal.
                                       DISCUSSION
       “We review a district court’s grant of summary judgment de novo, applying
the same standard as the district court.” Gale v. Carnrite, 559 F.3d 359, 362 (5th
Cir. 2009). Summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed R. Civ. P. 56(a).
       The plaintiffs raise only one issue on appeal: because the defendants did
not strictly comply with the requirements of Federal Rule of Civil Procedure
8(c)(1), should the district court have considered whether the statute of
limitations had run on the plaintiffs’ claims?1 According to Rule 8(c)(1), a
litigant must in his responsive pleading “affirmatively state any avoidance or
affirmative defense.” Fed. R. Civ. P. 8(c)(1). Failure to follow the rule can lead
to waiver of the defense. Rogers v. McDorman, 521 F.3d 381, 385 (5th Cir. 2008).


       1
       The plaintiffs do not contest that Shawn Kelly, originally identified as “Officer A,” was
improperly served. See United States v. Scroggins, 599 F.3d 433, 446-47 (5th Cir. 2010).

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                                  No. 12-30011

Courts recognize, however, that the rule has “some play in the joints.” Id.
Technical noncompliance may be excused so long as “the affirmative defense is
raised in the trial court in a manner that does not result in unfair surprise.” Id.
(marks and citation omitted). The concern is that the plaintiff will not have a
chance to rebut the defense. 5 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1277 (3d ed. 1998). Therefore, if the defense “is raised
at a pragmatically sufficient time, and the plaintiff was not prejudiced in its
ability to respond,” we generally will not find the defense waived. McDorman,
521 F.3d at 385-86 (marks and citation omitted). For these reasons, defenses
raised for the first time in motions for summary judgment may, under the proper
circumstances, be considered. See Standard Waste Sys. Ltd. v. Mid-Continent
Cas. Co., 612 F.3d 394, 398-99 (5th Cir. 2010).
      The affirmative defense of prescription was raised by Spalitta in his
answer to the original complaint after it was transferred to the district court in
Louisiana.   He asserted that at least some of the claims were barred by
Louisiana’s statute of limitations. Landen and Franklin Supply argued that all
of the claims by Abdullah Solieman were barred as were most of those brought
by Sam Solomon and Talal Solieman. After it was clear that prescription would
be argued, the plaintiffs filed an amended complaint. The defendants again
moved for summary judgment, once again arguing prescription.              In their
opposition to summary judgment, the plaintiffs responded to the prescription
argument directly and on the merits. They contended that the statute of




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                                       No. 12-30011

limitations provided by Illinois, not Louisiana, should control and that, under
Illinois law, their claims were timely.2
       Though the affirmative defense was not raised until the case was
transferred to Louisiana, there was no unfair surprise that interfered with the
plaintiffs’ ability to respond to the defense. See Lafreniere Park Found. v.
Broussard, 221 F.3d 804, 808 (5th Cir. 2000). The defendants did not waive
their affirmative defense of prescription. Accordingly, we see no error in the only
issue before us on appeal.
       AFFIRMED.




       2
        For this type of claim, Louisiana has a prescription period of one year, La. Civ. Code
art. 3492, while the statute of limitations in Illinois is two years. Savory v. Lyons, 469 F.3d
667, 672 (7th Cir. 2006).

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