The U.S. Court of Appeals for the Fifth Circuit on Thursday asked the Texas Supreme Court to answer two certified questions in a case where two former United Airlines flight attendants are fighting to revive their lawsuit against The Boeing Company and two other entities over injuries sustained while they were staffing a flight.
Marvin Sanders and Matthew Sodrok allege they were injured in January 2017 when a smoke detector activated, despite the absence of smoke or fire on board, and did so at such a high volume that it burst their ear drums, caused their ears to bleed and left them with permanent hearing loss. On appeal, Sanders and Sodrok argue the district court wrongly dismissed their case for exceeding the statute of limitations without properly applying a jurisdiction-savings statute: Texas Civil Practice & Remedies Code section 16.064.
The Fifth Circuit wants the Texas Supreme Court to decide whether the statute — that tolls the deadline to file suit when a petition is dismissed due to “lack of jurisdiction” and refiled in a court of “proper jurisdiction” within 60 days of the judgment becoming final — applies in this case.
The Fifth Circuit asks these two questions:
- Does Texas Civil Practice & Remedies Code § 16.064 apply to this lawsuit where plaintiffs could have invoked the prior district court’s subject matter jurisdiction with proper pleading?
- Did plaintiffs file this lawsuit within 60 days of when the prior judgment became “final” for purposes of Texas Civil Practice & Remedies Code § 16.064(a)(2)?
The case’s procedural history includes the filing of two federal lawsuits, a state court suit that was removed to federal court and a prior trip to the Fifth Circuit.
In their first attempt to bring suit, Sanders and Sodrok filed suit in federal court in Houston, but voluntarily dismissed the claims soon after.
In November 2018, they filed suit in federal court in Dallas and added additional defendants — Kidde Technologies and Jamco America, which Sanders and Sodrok allege provided the parts and maintenance for the smoke detector.
The defendants argued they had failed to establish diversity jurisdiction, the court agreed and ordered the flight attendants to refile their complaint, going so far as to suggest in a July 2020 order how they could replead to show diversity jurisdiction existed.
An amended complaint failed to make those necessary changes, and the court dismissed the suit for lack of jurisdiction and for failure to comply with a court order.
The flight attendants appealed that ruling to the Fifth Circuit, and a panel affirmed dismissal in August 2021, according to court records.
In November 2021, the flight attendants tried again, this time filing suit in Harris County district court. Boeing and the other defendants removed it to federal court, and then argued it should be dismissed because it was filed after the two-year statute of limitations had run.
That’s when Sanders and Sodrok raised Section 16.064 as a defense, arguing limitations had been tolled because the previous case was dismissed for lack of jurisdiction and because they filed the new case less than 60 days after the Fifth Circuit affirmed dismissal and denied their petition for rehearing en banc.
U.S. District Judge Kenneth M. Hoyt disagreed and dismissed the case with prejudice on June 1, 2022.
Judge Hoyt pointed to a 2014 Fifth Circuit ruling for the proposition that Section 16.064 only applies in cases where the plaintiff has filed suit in the “wrong court,” holding that requirement wasn’t met here because, though the suit was filed in the right court, the flight attendants failed to invoke jurisdiction of that court.
Sanders and Sodrok filed notice of appeal with the Fifth Circuit in June 2022. The court tentatively scheduled oral arguments for May 1, but entered a note in the docket on April 12 that “oral argument will not be required.”
In seeking answers from the Texas Supreme Court, the panel wrote that there is no controlling precedent on either question and that there is a divide among the state’s intermediate appellate courts on the issue, too.
Additionally, the lack of precedent means “interpretive differences have developed in the federal district courts” that have addressed the questions.
“The flight attendants did not file the instant lawsuit until after this court affirmed the district court’s judgment in the previous appeal,” the panel wrote. “The question, then, is when the judgment became final for purposes of Texas law. If the answer is ‘when the district court entered judgment,’ then the savings statute does not apply. But if the answer is ‘when this court denied the flight attendants’ petition for rehearing en banc,’ then the flight attendants have satisfied the refiling condition.”
Judges Jennifer Walker Elrod, James C. Ho and Cory T. Wilson sat on the panel.
Sanders and Sodrok are represented by Joshua P. Davis of Houston.
Boeing is represented by Eric B. Wolff, John Russell Hardin, Laura Hill and Daniel Patrick Ridlon of Perkins Coie.
Kidde Technologies is represented by Geffrey W. Anderson and Shannon Dugan of Anderson & Riddle.
Jamco America is represented by Steven Dominic Sanfelippo, Gary Swaim and Alex Joseph Whitman of Cunningham Swaim.
The case number is 22-20317.