Sanders v. The Boeing Co., 22-20317

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
PartiesLee Marvin Sanders; Matthew Sodrok, Plaintiffs-Appellants, v. The Boeing Company; Kidde Technologies, Incorporated; Jamco America, Incorporated, Defendants-Appellees.
Decision Date25 May 2023
Docket Number22-20317


Lee Marvin Sanders; Matthew Sodrok, Plaintiffs-Appellants,

The Boeing Company; Kidde Technologies, Incorporated; Jamco America, Incorporated, Defendants-Appellees.

No. 22-20317

United States Court of Appeals, Fifth Circuit

May 25, 2023

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:21-CV-4042

Before ELROD, HO, and WILSON, Circuit Judges.


This case concerns the interpretation of a Texas statute that tolls the applicable statute of limitations where a prior petition is dismissed due to "lack of jurisdiction" and refiled in a court of "proper jurisdiction" within sixty days after the prior judgment "becomes final." Tex. Civ. Prac. &Rem. Code § 16.064. Plaintiffs are flight attendants who sustained injuries in connection with their employment by United Airlines. They filed claims in the Northern District of Texas, but the district court dismissed them because the flight attendants failed to adequately plead diversity jurisdiction. This was


despite the fact that the parties agree that the flight attendants could have invoked the district court's jurisdiction if they had included the proper allegations. The flight attendants appealed and this court affirmed. They filed the instant case shortly after. The district court dismissed the claims as barred by the statute of limitations.

This appeal presents two primary questions, both of which concern the interpretation of the jurisdiction savings statute. First, Defendants maintain that the statute requires that the prior lawsuit be filed in the "wrong court"-and that the flight attendants fail this requirement because the Northern District of Texas was not the wrong court. And second, Defendants argue that the flight attendants waited too long to refile their claims because the deadline began when the district court entered judgment, not when this court affirmed that judgment.

We cannot make a reliable Erie guess on these important matters of state law. Accordingly, we CERTIFY two questions to the Supreme Court of Texas, as explained below.


As introduced above, this case involves personal injuries sustained by Plaintiffs Lee Marvin Sanders and Matthew Sodrok. At the time of their injuries, Plaintiffs were employed as flight attendants by United Airlines. They allege that a smoke detector improperly activated during a flight they staffed; no fire or smoke was present. The flight at issue departed on January 8, 2017, via a Boeing 737-824 aircraft. According to the flight attendants' complaint, the smoke detector sounded much more loudly than necessary. Indeed, the flight attendants' ear drums burst, their ears bled, and they sustained permanent hearing damage.

Almost two years later, the flight attendants filed a federal lawsuit in Houston. Compl., Sanders v. The Boeing Co., No. 4:18-CV-4248 (S.D. Tex.


Nov. 8, 2018), ECF 1. They voluntarily dismissed shortly after.

The flight attendants filed their next federal lawsuit in Dallas. Compl., Sanders v. Boeing Co., No. 3:18-CV-3165 (N.D. Tex. Nov. 29, 2018), ECF 1. After conducting discovery to determine which entities to sue, they filed an amended complaint, naming three defendants: The Boeing Company, Kidde Technologies, Inc., and Jamco America, Inc. The flight attendants alleged that Boeing manufactured the airplane at issue, and that Kidde and Jamco provided parts and maintenance for the detector.

Defendants moved to dismiss, asserting that the flight attendants failed to establish the existence of diversity jurisdiction. In response, the district court ordered the flight attendants to refile their complaint to address several deficiencies. Order, Sanders v. Boeing Co., No. 3:18-CV-3165 (N.D. Tex. July 21, 2020), ECF 88. Among other things, the order specified how Plaintiffs could plead facts showing diversity jurisdiction:

Plaintiffs only allege that they-individuals-reside in Harris County, Texas but do not specify where they are domiciled. As such, plaintiffs do not properly allege their own citizenship. Plaintiffs further allege that Boeing is a domestic corporation doing business in Texas, Kidde Technologies is a foreign corporation doing business in Texas, and that Jamco is a corporation doing business in the United States. Plaintiffs do not allege these corporations' states of incorporation or principal places of business and so do not adequately allege the citizenship of any of the defendants.... Plaintiffs must therefore adequately allege the citizenship of each party

Id. at 2. The flight attendants failed, however, to make those changes upon filing an amended complaint. The district court sua sponte dismissed the complaint for lack of jurisdiction, Fed.R.Civ.P. 12(h)(3), and for failure to comply with a court order, id. R. 41(b).

The flight attendants appealed and this court affirmed. Sanders v. Boeing Co.,


No. 20-10882, 2021 WL 3412509 (5th Cir. Aug. 4, 2021). We explained that the flight attendants failed to plead facts showing the parties' citizenship, and that the district court had afforded them ample opportunity to do so. Id. at *2-3.

Thereafter, the flight attendants filed their third lawsuit, again in Houston, but this time in state court. Orig. Pet., Sanders v. Boeing Co., No. 202174036 (198th Dist. Ct., Harris County, Tex. Nov. 10, 2021). Defendants removed, citing diversity jurisdiction. Notice, Sanders v. Boeing Co., No. 4:21-CV-4042 (S.D. Tex. Dec. 13, 2021), ECF 1. They then moved to dismiss on the ground that the two-year statute of limitations had run.

The flight attendants defended against the motions by pointing to Section 16.064 of the Texas Civil Practice and Remedies Code-a jurisdiction savings statute they say tolled the statute of limitations while they pursued their lawsuit in the Northern District of Texas. The statute applies where a prior complaint is dismissed for "lack of jurisdiction":

(a) The period between the date of filing an action in a trial court and the date of a second filing of the same action in a different court suspends the running of the applicable statute of limitations for the period if:
(1) because of lack of jurisdiction in the trial court where the action was first filed, the action is dismissed or the judgment is set aside or annulled in a direct proceeding; and
(2) not later than the 60th day after the date the dismissal or other disposition becomes final, the action is commenced in a court of proper jurisdiction.
(b) This section does not apply if the adverse party has shown in abatement that the first filing was made with intentional disregard of proper jurisdiction.

Tex. Civ. Prac. &Rem. Code § 16.064.


Their previous case, the flight attendants contended, was dismissed for lack of jurisdiction. And they filed the new action less than sixty days after this court affirmed the district court's judgment and denied their petition for rehearing en banc. Therefore, the flight attendants concluded, the savings statute applies and their claims are timely.

The district court disagreed and dismissed the complaint. Sanders v. Boeing Co., No. 4:21-CV-4042, 2022 WL 2349155 (S.D. Tex. June 1, 2022). It cited a non-precedential decision from this court for the proposition that the savings statute applies only where the plaintiff files the previous action in the "wrong court." Agenbroad v. McEntire, 595 Fed.Appx. 383, 387 (5th Cir. 2014). Here, the flight attendants did not file in the wrong court. They filed in a court of "proper jurisdiction," Texas Civil Practice &Remedies Code § 16.064(a)(2), but failed to invoke that jurisdiction by pleading facts demonstrating diversity jurisdiction. For that reason, the district court held that the savings statute did not apply and the statute of limitations barred the flight attendants' claims. The flight attendants timely appealed.


The primary question presented is whether the jurisdiction savings statute applies to these facts. The answer to that question is "yes" only if two necessary conditions obtain. First, the prior lawsuit must have been dismissed "because of lack of jurisdiction." Tex. Civ. Prac. &Rem. Code § 16.064(a)(1). Here, Defendants maintain that a plaintiff must have filed the prior lawsuit in the "wrong court" to satisfy the condition. And second, the flight attendants must have filed the new lawsuit within sixty days of when the prior judgment became final. Id. § 16.064(a)(2). We must make an Erie guess as to both conditions because the Supreme Court of Texas has not addressed either one. In conducting that analysis, we consider reasoning and dicta from related decisions of the Supreme Court of Texas as well as


analogous opinions by the intermediate courts of appeals. American Int'l Specialty Lines Inc. Co. v. Rentech Steel LLC, 620 F.3d 558, 564 (5th Cir. 2010).

As explained below, there is no controlling Supreme Court of Texas precedent on either point, and other...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT