     Case: 10-50403 Document: 00511429460 Page: 1 Date Filed: 03/30/2011




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

                                                 FILED
                                                                           March 30, 2011

                                     No. 10-50403                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



MARTIN CONTRERAS,

                                                   Plaintiff-Appellant
v.

MANUAL LOPEZ CHAVEZ,

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                                   (08-CV-293)


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Martin Contreras (“Contreras”) appeals the district
court’s grant of summary judgment after Contreras failed to comply with the
district court’s orders, failed to show a continuance was warranted, and failed
to show good cause or excusable neglect for filing a late response. AFFIRMED.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-50403

                                        I.
      Contreras and Defendant-Appellee Manual Lopez Chavez (“Chavez”) were
involved in an automobile accident on August 7, 2005, in San Antonio, Texas.
On August 6, 2007, Contreras filed suit against Chavez in Texas state court, one
day prior to the expiration of the applicable statute of limitations. He did not
request service nor did he attempt to serve Chavez until February 14, 2008, six
months after filing suit. On February 15, 2008, Contreras filed an amended
petition. On February 29, 2008, Contreras served Chavez with the amended
petition.   Also on that date, Contreras served the Texas Transportation
Commission. In April 2008, the matter was removed to the Western District of
Texas. Contreras provided no reason for the half-year delay for serving Chavez.
      On July 21, 2008, Chavez filed a motion for summary judgment based on
the two-year statute of limitations. Chavez argued that because Contreras failed
to exercise due diligence to seek issuance and service of the citation, Contreras’s
claims did not relate back to the original filing date for statute of limitations
purposes. Contreras then filed a motion for continuance.
      Contreras’s motion sought leave to depose Chavez and determine whether
Chavez had been outside Texas at any time during the period and whether that
tolled the statute of limitations. On August 13, 2008, the district court granted
the continuance and ordered Contreras to respond to Chavez’s motion twenty
days after Contreras took Chavez’s deposition. On November 12, 2008, the
district court granted Chavez’s motion for reconsideration of his motion for
summary judgment and ordered that Contreras file a response to Chavez’s
dispositive motion on or before November 21, 2008.
      On November 19, 2008, Contreras moved for a second continuance. In this
application, Contreras asked for more time to take additional depositions to
determine whether the parties entered into a tolling agreement. Contreras did
not timely respond to the court-ordered November 21, 2008 deadline on Chavez’s

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                                   No. 10-50403

summary judgment motion. He only responded on January 14, 2009. On March
5, 2009, the district court denied Contreras’s second motion for a continuance
and struck his January 14, 2009 response as untimely. On March 11, 2009, the
district court granted Chavez summary judgment based on the expiration of the
statute of limitations. This appeal followed.
                                        II.
                                         A.
      This court reviews the grant of summary judgment de novo. Floyd v.
Amite Cnty. Sch. Dist., 581 F.3d 244, 247 (5th Cir. 2009). Summary judgment
is appropriate where, considering all the allegations in the pleadings,
depositions, admissions, answers to interrogatories, and affidavits, and drawing
inferences in the light most favorable to the nonmoving party, there is no
genuine issue of material fact and the moving party is entitled to judgment as
a matter of law. F ED. R. C IV. P. 56(a).       “[W]e review the district court’s
administrative handling of a case, including its enforcement of . . . scheduling
orders for abuse of discretion.” Nationwide Bi-Weekly Admin., Inc. v. Belo Corp.,
512 F.3d 137, 140 (5th Cir. 2007) (citation omitted).
                                         B.
      In Saenz v. Keller Industries of Texas, we held that “Texas law applies in
a diversity case to determine whether [Plaintiff] tolled the statute of limitations
when [he] filed suit. ” 951 F.2d 665, 667 (5th Cir. 1992). In order to toll a statute
of limitations, Texas requires a plaintiff to satisfy two requirements.          See
generally Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990). A plaintiff must file
suit not only within the statutorily prescribed limitations period, “but also use
diligence to have the defendant served with process.” Id. A plaintiff’s failure to
serve defendant with process until after the limitations period has expired is
excused only if the plaintiff exercised due diligence in effectuating service. Zale
Corp. v. Rosenbaum, 520 S.W.2d 889, 890 (Tex. 1975).

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                                   No. 10-50403

      “The determination of due diligence is a fact question.” Saenz, 951 F.2d
at 667. Texas courts have held that more than four months, without sufficient
effort to serve defendant, negates due diligence as a matter of law. Webster v.
Thomas, 5 S.W.3d 287, 291 (Tex. App.—Houston [14th Dist.] 1999) (“Here, we
have a four month and ten day delay . . . we are of the opinion that this case . .
. presents a situation in which the plaintiff did not exercise due diligence.”).
Texas courts have similarly held for five-month delays. Gonzalez v. Phoenix
Frozen Foods, 884 S.W.2d 587, 590 (Tex. App.—Corpus Christi 1994). A delay
of six months has also been held as a matter of law to negate due diligence.
Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex. App.—Corpus Christi 1991).
                                        C.
      By filing suit on August 6, 2007, Contreras satisfied the first prong of his
two-step obligation to toll the statute under Gant. See generally 786 S.W.2d at
260. Yet, the record establishes that Contreras made no effort to serve Chavez
for more than six months, nor did he furnish a reason for the delay. Thus,
pursuant to Texas law, this suffices to negate due diligence. It follows then that
Contreras’s claim does not relate back to August 6, 2007. Id.
      Here, the district court determined that the delay of over six months was
sufficient to negate due diligence. We, too, find Contreras’s delay negated due
diligence. In the absence of a genuine issue of material fact, Chavez was entitled
to judgment as a matter of law. As such, the district court’s entry of summary
judgment in favor of Chavez was entirely appropriate.
      Additionally, we find Chavez’s procedural arguments equally persuasive.
Here, the district court did not abuse its discretion in striking Contreras’s eight-
week late response as untimely. Nationwide, 512 F.3d at 140. Contreras flouted
the district court’s scheduling order by failing to adhere to deadlines set in order
to administer the case and filed responses at his own convenience. This, coupled
with Contreras’s deficient service on Chavez, compels affirmance.

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                               No. 10-50403

                                   III.
     For the reasons stated above, we AFFIRM the district court’s summary
judgment in favor of Chavez.




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