     Case: 18-30050      Document: 00514574729         Page: 1    Date Filed: 07/27/2018




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

                                    No. 18-30050                                 FILED
                                  Summary Calendar                           July 27, 2018
                                                                            Lyle W. Cayce
                                                                                 Clerk
HARRY LEE BOUDREAUX,

              Plaintiff - Appellant

v.

C J R FRAMING INCORPORATED; ROCKINGHAM CASUALTY
COMPANY, incorrectly named as Rockingham Insurance Company,

              Defendants - Appellees



                  Appeals from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:17-CV-517


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       In this personal-injury action, the plaintiff’s amended complaint added
a dissolved Texas corporation and the corporation’s insurer. The district court
granted the new defendants’ motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6) on the basis that the plaintiff could not bring a claim
against the dissolved corporation under Texas corporations law. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-30050
              FACTUAL AND PROCEDURAL BACKGROUND
      While working at a construction site, Harry Lee Boudreaux alleges he
was injured when a board fell from the roof of an apartment building and
struck him on the back. He filed suit in Louisiana state court against U.S.
Framing, Inc., the contractor at the site. Following removal on the basis of
diversity of citizenship, Boudreaux amended his complaint to add CJR
Framing, Inc. (“CJR”), a Texas-based subcontractor, and Rockingham Casualty
Company, who was CJR’s insurer, alleging CJR negligently caused his injuries
and Rockingham was liable under Louisiana’s direct-action statute, LA. STAT.
ANN. § 22:1269. CJR filed a motion to dismiss under Rule 12(b)(6), contending
Boudreaux’s suit was barred by the Texas Business Organizations Code
(“Texas Code”) because Boudreaux’s claim arose after CJR was dissolved in
February 2014. Further, CJR asserted any viable claim Boudreaux may have
had was “extinguished” under the Texas Code because he filed suit more than
three years after CJR was dissolved. Rockingham also moved to dismiss on
the basis that Boudreaux did not state a claim against its insured, CJR.
      Accepting a magistrate judge’s report and recommendation, the district
court dismissed Boudreaux’s claims against the defendants under Rule
12(b)(6).   The court ruled that Texas corporate law applied to a Texas
corporation’s capacity to be sued in Louisiana. The court also held that under
the Texas Code, CJR could not be liable on Boudreaux’s post-dissolution claim.
Further, even if Boudreaux’s claim were an “existing claim,” it was not filed
within three years of CJR’s dissolution as statutorily required.        Because
Boudreaux had no viable substantive claim against CJR, Rockingham could
not be liable under the direct-action statute. Finding there was no just cause
for delay, the district court declared the dismissal a final judgment under Rule
54(b), and Boudreaux timely appealed.


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                                   No. 18-30050
                                  DISCUSSION
        We review a district court’s grant of a Rule 12(b)(6) motion de novo,
“accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiff.” True v. Robles, 571 F.3d 412, 417 (5th Cir.
2009) (quoting Stokes v. Gann, 498 F.3d 483, 484 (5th Cir. 2007)). “Dismissal
is appropriate when the plaintiff has not alleged ‘enough facts to state a claim
to relief that is plausible on its face’ and has failed to ‘raise a right to relief
above the speculative level.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 570 (2007)).
        When sitting in diversity, federal courts apply the substantive state law
of the state in which the district court sits, including the forum state’s choice-
of-law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496–97 (1941).
We therefore apply Louisiana’s choice-of-law-rules. Louisiana state courts
“would apply the law of the state of incorporation in determining the viability
of a corporation after dissolution.” Lone Star Indus., Inc. v. Redwine, 757 F.2d
1544, 1548 n.3 (5th Cir. 1985); see also FED. R. CIV. P. 17(b)(2). Furthermore,
Boudreaux does not contest the applicability of Texas corporate law on CJR’s
capacity to be sued.
        Boudreaux also does not contest that CJR’s charter was forfeited under
the Texas Tax Code, making CJR a “terminated filing entity” under the Texas
Code.    TEX. BUS. ORGS. CODE ANN. §§ 11.001(4)–(5).          A “terminated filing
entity” ceases to exist for most purposes but “continues in existence [for three
years] . . . for the purposes of . . . permitting the survival of an existing claim.”
§ 11.356(a)(2) (emphasis added). An “existing claim” is defined as “a claim that
existed before the entity’s termination and is not barred by limitations; or . . .
a contractual obligation incurred after termination.” §§ 11.001(3)(A)–(B).
        The district court correctly held that Boudreaux’s claim against CJR was
not an “existing claim” under the plain language of Sections 11.356(a)(2) and
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                                  No. 18-30050
11.001(3).    See State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006).
Boudreaux’s claim did not accrue pre-dissolution under Section 11.001(3)(A)
because the accident occurred in August 2016 — over two years after CJR was
dissolved.    Texas courts have held that, under a prior version of Section
11.001(3), “[a] dissolved corporation is not liable for a post-dissolution claim.”
Anderson Petro-Equip., Inc. v. State, 317 S.W.3d 812, 817 (Tex. App.—Austin
2010, pet. denied). For the first time on appeal, Boudreaux argues that his
claim is a contractual obligation under Section 11.001(3)(B). Assertions made
for the first time on appeal are waived unless the appellant demonstrates
“extraordinary circumstances.” AG Acceptance Corp. v. Veigel, 564 F.3d 695,
700 (5th Cir. 2009).     No extraordinary circumstances have been shown.
Regardless, the fact CJR had a contract with U.S. Framing, Inc. is irrelevant
to whether Boudreaux’s claim arose from a “contractual obligation.” It clearly
did not.
      Even if Boudreaux had an “existing claim,” the district court correctly
ruled his claim was “extinguished” under Section 11.359(a) because he did not
file it within three years of CJR’s dissolution.     “[A]n existing claim . . . is
extinguished unless an action or proceeding is brought on the claim not later
than the third anniversary of the date of termination of the entity.” § 11.359(a)
(emphasis added). Boudreaux asserts Louisiana’s statute of limitations tolling
principles apply. He then argues that because he filed his original petition less
than three years after CJR was dissolved, his amended complaint against CJR
was tolled.    We do not see, though, any connection between Louisiana’s
limitations tolling and a determination of whether a Texas corporation has the
capacity to be sued. As already discussed, the relevant Texas statute provides
that “existing claims” filed against dissolved corporations are “extinguished”
after three years. § 11.359(a).


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                                  No. 18-30050
      Next, Boudreaux contends the district court never addressed his
assertion that CJR fraudulently continued to conduct business even though it
was dissolved. Therefore, he argues CJR’s termination should be revoked
under Section 11.153, which permits courts to “order the revocation of
termination of an entity’s existence that was terminated as a result of actual
or constructive fraud.”    Boudreaux is incorrect that the court ignored his
argument.    The magistrate’s report and recommendation, adopted by the
district court, discusses and rejects the arguments based on fraud:
      Plaintiff’s contention that Texas law authorizes a court to revoke
      an entity’s termination as a result of fraud does not change th[e]
      conclusion [that Boudreaux does not have an “existing claim” and
      any claim was extinguished]. There is no statutory text expressly
      stating that the revocation under [Section 11.153] . . . would revive
      any claims extinguished by Section 11.359 of the [Texas Code].
      Briefly to repeat, the Texas Code provides, without applicable exception,
that only “existing claims” survive a corporation’s dissolution; even if a plaintiff
has an “existing claim,” all claims are “extinguished” if not brought within
three years. §§ 11.356 & 11.359. We discover no authority to suggest Section
11.153 revives non-existent or extinguished claims. “In making an Erie-guess
in the absence of explicit guidance from the state courts, we must attempt to
predict state law, not to create or modify it.” Learmonth v. Sears, Roebuck &
Co., 710 F.3d 249, 258 (5th Cir. 2013) (quoting Coe v. Chesapeake Exploration,
LLC, 695 F.3d 311, 316 (5th Cir. 201)). We cannot create a fraud exception
where none exists in Sections 11.356 and 11.359.
      Boudreaux also argues the district court ignored his assertion that
dismissal under Rule 12(b)(6) was premature because CJR failed to answer
discovery. Yet, the district court ordered that discovery be halted pending its
ruling on the motions to dismiss, a halt which Boudreaux does not claim to be
error. Boudreaux shows no abuse of discretion in the grant of the protective
order. See Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination
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                                 No. 18-30050
Unit, 28 F.3d 1388, 1394 (5th Cir. 1994). Moreover, in resolving a similar
argument based on a need for discovery, we held “a 12(b)(6) inquiry focuses on
the allegations in the pleadings, not whether a plaintiff actually has sufficient
evidence to succeed on the merits.” Ferrer v. Chevron Corp., 484 F.3d 776, 782
(5th Cir. 2007). Boudreaux’s claim of error concerning discovery is irrelevant
to the court’s order granting the defendants’ motions to dismiss.
      Finally, Boudreaux asserts the court erred in dismissing Rockingham’s
claims under Louisiana’s direct-action statute. Boudreaux agrees that in order
to hold Rockingham liable under the direct-action statute, he must state a
substantive claim against CJR or CJR’s employees. LA. STAT. ANN. § 22:1269;
Williams v. SIF Consultants of La., Inc., 103 So. 3d 1172, 1177 (La. Ct. App.
2012). Boudreaux did not join CJR’s employees in this action. Because the
district court did not err in dismissing Boudreaux’s claims against CJR, it also
did not err in dismissing his claims against Rockingham. Williams, 103 So. 3d
at 1177.
      AFFIRMED.




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