595 F. App'x 383
5th Cir.2014Background
- Investors allege a $24+ million oil and gas Ponzi scheme run by Big Rock and its owner McEntire.
- BRIA sued Big Rock in Texas state court in 2005 for violations of the Texas Securities Act; the case was abated due to FBI seizure and a bankruptcy proceeding.
- State court reactivated the suit in 2010, later denied Big Rock's plea to jurisdiction and eventually granted it in 2012; BRIA appealed and the Texas appellate court affirmed dismissal in 2013.
- In July 2012, Investors filed a separate federal action in the Eastern District of Texas, naming individual investors rather than BRIA.
- Big Rock moved for summary judgment; Investors argued tolling under Tex. Civ. Prac. & Rem. Code §§ 16.063, 16.064, and equitable tolling.
- The district court granted summary judgment against Investors; Investors appeal challenging tolling arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §16.063 tolls the limitations period. | Big Rock absent from Texas tolls the period per Kerlin/Ashley. | Section 16.063 generally does not apply to nonresidents; exceptions not shown. | Section 16.063 does not apply to Big Rock; no tolling under §16.063. |
| Whether §16.064 tolls when first suit was dismissed for lack of jurisdiction/standing. | Dismissal for lack of jurisdiction and timely refiling within 60 days triggers §16.064. | §16.064 applies to refiling after dismissal for lack of jurisdiction, not lack of standing; does not apply here. | §16.064 does not toll the statute; no saving effect for this dismissal scenario. |
| Whether equitable tolling should apply to toll the limitations period. | Diligent pursuit within period and extraordinary circumstances warrant tolling. | Equitable tolling reserved for rare, exceptional factors; here none. | Equitable tolling declined; not shown to be warranted. |
Key Cases Cited
- Kerlin v. Sauceda, 263 S.W.3d 920 (Tex.2008) (nonresident tolling framework under §16.063 for present/absent in Texas)
- Ashley v. Hawkins, 293 S.W.3d 175 (Tex.2009) (nonresident tolling framework under §16.063 for present/absent in Texas)
- Jackson v. Speer, 974 F.2d 676 (5th Cir.1992) (general rule: §16.063 does not apply to nonresidents; exceptions discussed)
- Sanders v. Unum Life Ins. Co. of Am., 553 F.3d 922 (5th Cir.2008) (waiver/briefing standards on appeal for summary judgment issues)
- In re United Servs. Auto. Ass'n, 307 S.W.3d 299 (Tex.2010) (Tex. Supreme Court dicta on jurisdictional patchwork and §16.064 context)
- Clary Corp. v. Smith, 949 S.W.2d 452 (Tex.App.—Fort Worth 1997) ( §16.064 applies to refiling in different court after dismissal)
- Turner v. Tex. Dep’t of Mental Health & Mental Retardation, 920 S.W.2d 415 (Tex.App.—Austin 1996) (distinguishes proper scope of §16.064 for misfiled actions)
- Brown v. Fullenweider, 135 S.W.3d 340 (Tex.App.—Texarkana 2004) (rejected broad 'wrong court' interpretation of §16.064)
- Long Island Trust Co. v. Dicker, 659 F.2d 641 (5th Cir. Unit A Oct.1981) (illustrates legacy tolling considerations in other contexts)
- Griffen v. Big Spring Indep. Sch. Dist., 706 F.2d 645 (5th Cir.1983) (equitable tolling considerations in governmental/educational context)
- Forte v. Wal-Mart Stores, Inc., 763 F.3d 421 (5th Cir.2014) (statutory construction guiding Texas tolling analysis)