442 F. App'x 957
5th Cir.2011Background
- Carner worked for BCBSLA from March 2007 until she resigned July 24, 2009 after being pressured to violate trade secret laws and reporting concerns.
- Carner alleged post-employment retaliation and state claims (retaliation, hostile work environment, constructive discharge, etc.) and a §1983 claim.
- Carner filed suit July 23, 2010 in Livingston Parish; BCBSLA removed to district court in October 2010; Carner amended to add Louisiana whistleblower claim.
- The district court granted summary judgment on prescription/venue/service grounds, holding last injury July 24, 2009 and service August 5, 2010 outside the prescriptive period.
- On appeal, Carner argued post-employment retaliation extended the prescriptive period and challenged the district court’s adherence to the Status Report and discovery posture.
- Court affirms, concluding all claims prior to July 24, 2009 were prescribed and post-employment retaliation claims lacked evidence to defeat summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prescriptive effect of post-employment retaliation | Carner contends post-employment retaliation extended the prescriptive period | BCBSLA argues all claims accrued by July 24, 2009 and were prescribed | Post-employment claims are prescribed; no extension shown |
| Interruption of prescription via service in improper venue | Carner asserts service within prescriptive period despite improper venue should interrupt | Service after July 24, 2010 does not interrupt due to improper venue | Interruption only if served within prescriptive period; service after period fails to interrupt |
| Status Report and discovery implications | Carner claims the Status Report limited scrutiny to prescription/venue/service and discovery delay should aid post-employment claims | Status Report limited motion scope; no evidence of post-employment facts to create dispute | Court adhered to Status Report; no genuine issue regarding post-employment retaliation facts for prescription purposes |
| Rule 56(d) preservation | Carner argues she needed Rule 56(d) relief due to lack of discovery | Rule 56(d) relief not sought below; waived on appeal | Waived; not raised at district level |
Key Cases Cited
- Wilson v. Garcia, 471 U.S. 261 (U.S. Supreme Court 1985) (permissible interpretation of personal injury action for prescription)
- Doe v. Delta Women’s Clinic of Baton Rouge, 37 So. 3d 1076 (La. Ct. App. 1st Cir. 2010) (interruption only for timely service in proper venue)
- Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994) (summary judgment standard; burden-shifting on opposition)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. Supreme Court 1986) (summary judgment movant showing absence of material fact)
- Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337 (5th Cir. 2007) (de novo review of summary judgment)
- Doe v. Delta Women’s Clinic of Baton Rouge, 37 So. 3d 1076 (La. Ct. App. 1 Cir. 2010) (interruption of prescription in improper venue)