                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                        December 18, 2006

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                No. 06-20078
                              Summary Calendar


                                 PAT BARLOW

                            Plaintiff-Appellant,

                                   versus

 WAL-MART STORES, INC.; SAM’S CLUB; AND WEIDER NUTRITION GROUP,

                            Defendants-Appellees.

                         --------------------
            Appeal From the United States District Court
                  for the Southern District of Texas
                             4:05-CR-1221
                         --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

      The plaintiff, Pat Barlow, sued the defendants claiming that

she   had   an   allergic    reaction   to   glucosamine      chondroitin,     an

ingredient in a product manufactured by Weider and sold to her at

a Sam’s Club. The district court dismissed the case on summary

judgment, holding that the defendants had been served outside the

limitations period and that the plaintiff had not exercised the

required    diligence   in    obtaining      service.   See    Zale   Corp.    v.

Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975). We review de novo.

Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988).

      *
       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this opinion should not be published and is not precedent except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.
                                 No. 06-20078
                                      -2-

      In Texas, “[t]he mere filing of a petition will not toll the

running of a statute of limitation; to interrupt the statute, the

plaintiff must exercise due diligence in procuring the issuance and

service of citation upon the defendant.” Perry v. Kroger Stores

Store No. 119, 741 S.W.2d 533, 534 (Tex. App. – Dallas 1987). “The

existence of diligence is usually a question of fact, but if no

excuse is offered for a delay in procuring service of citation, or

if   the   lapse   of   time   and   the   plaintiff’s     acts   are   such   as

conclusively negate diligence, a lack of diligence will be found as

a matter of law.” Id. Here, the district court found that the

plaintiff: (1) filed just before the limitations period expired,

(2) did nothing for one month after filling suit, (3) waited an

additional month after requesting and receiving summons from the

clerk to request an extension, which was granted, and (4) waited

two weeks    after      the   extension    deadline   to   finally   serve     the

defendants. The plaintiff offered no explanations other than that

“family reasons” had prevented her from paying fees of thirty-three

dollars necessary to obtain a process server. On the facts found by

the district court, it did not err in holding that the plaintiff

served the defendants outside the limitations period and without

diligence. We therefore AFFIRM.
