IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 98-31236 _____________________

WAYNE MANIERI,

Plaintiff-Appellant,

v.

JAMES E. LAYIRRISON; ET AL,

Defendants,

KENNY GIACONE; MICHAEL DEAN; TANGIPAHOA PARISH SHERIFF’S OFFICE; J. EDWARD LAYIRRISON, Sheriff; TANGIPAHOA PARISH COUNCIL PRESIDENT GOVERNMENT, also known as Parish of Tangipahoa; and GLENN CACIOPPO,

Defendants-Appellees.

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Appeal from the United States District Court for the Eastern District of Louisiana (98-CV-501-D) _________________________________________________________________

October 27, 1999

Before KING, Chief Judge, POLITZ and STEWART, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Wayne Manieri appeals from the district

court’s dismissal of his complaint against Defendants-Appellees.

For the reasons stated below we AFFIRM in part and REVERSE in

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Manieri originally filed this action in the United States

District Court for the Middle District of Louisiana (the “Middle

District”) alleging that Appellees violated his state and federal

civil rights when they injured him during an arrest. The Middle

District had personal jurisdiction over the parties but was an

improper venue. The Middle District subsequently transferred

this case to the United States District Court for the Eastern

District of Louisiana (the “Eastern District”) because it found

that the Eastern District was “the most correct forum and

Tangipahoa Parish is located in the Eastern District.” While the

transfer order did not specify the authority relied upon in

transferring the case, it seems clear that the transfer was

effected under

(a), which provides for the

transfer of cases that “lay[] venue in the wrong...district.”

The Eastern District subsequently dismissed Manieri’s claims

as time-barred. We review the court’s dismissal de novo.

Anderson v. Pasadena Indp. School Dist.,

(5th

Cir. 1999).

Manieri asserts federal civil rights claims under

, 1985, and 1986. Because there is no federal statute of

limitations governing these sections, federal courts borrow the

most appropriate statute of limitations from the forum state in

which the action is brought. See Moore v. McDonald,

(5th Cir. 1994). The analogous statute of limitations under

2 Louisiana law provides for a one year prescriptive period. See

La. Civ. Code. Ann. art. 3492 (West 1994). Louisiana law also

dictates that the prescriptive period is tolled upon filing. See

La. Civ. Code. Ann. art 3462 (West 1994). If the case is filed

in the incorrect venue, however, the prescriptive period is not

tolled until the defendant is served with process.

The Eastern District reasoned that because Manieri

originally filed in an improper venue, and subsequently failed to

serve Appellees within the prescriptive period, his action was

time-barred. See La. Civ. Code Ann. art. 3462 (West 1994). It

is undisputed that Manieri failed to serve Appellees within the

one-year prescriptive period. Nor is it disputed that Manieri

served Appellees within the 120-day time period provided by Fed.

R. Civ. P. 4(m).

In their briefs, the parties’ arguments center around what

transfer statute was used to transfer the case. This argument

misses the mark. The decisive issue in this case is whether

Article 3462 applies to Manieri’s federal claims. If Article

3462 applies, Manieri’s claims were prescribed in the Middle

District and would have been equally prescribed in the Eastern

District, regardless of the statute used to transfer the case.

In cases based on federal law, Article 3462 will not bar a

claim if the claim is filed within the prescriptive period and

served on the defendants within the time period provided by the

Federal Rules of Civil Procedure. The Supreme Court has

3 expressly rejected the notion that “when a federal court borrows

a statute of limitations to apply to a federal cause of action,

the statute of limitation’s provisions for service must

necessarily also be followed.” West v. Conrail,

(1987). More recently, the Supreme Court recognized that if a

case is in federal court on a state-created right “a plaintiff

must serve process before the statue of limitations has run, if

state law so requires for a similar state-court suit.” Henderson

v. United States,

, 657 n.2 (1996). The Court

continued, however, that “[i]n a suit on a right created by

federal law, filing a complaint suffices to satisfy the statute

of limitations.” Id.

This court has held the same. In McGuire v. Turnbo,

(5th Cir. 1998), we held that Texas’s requirement

that a plaintiff exercise “continuous due diligence” in serving a

defendant to toll the statue of limitations does not apply to

claims based on federal law and pursued in federal court. More

specifically, we have held that Texas’s “due diligence”

requirement “does not apply to section 1983 actions in Texas

federal court.” Gonzales v. Wyatt,

, 1021 n.1 (5th

Cir. 1998) (citing Jackson v. Duke,

(5th Cir.

1958)). The reasoning in these cases is equally applicable to

Article 3462.

We hold that Article 3462 does not extinguish a federal

claim, filed within the prescriptive period in a federal court of

4 competent jurisdiction and served in compliance with the Federal

Rules of Civil Procedure. Because Manieri filed his federal

claims in a federal court of competent jurisdiction within the

prescriptive period and served Appellees within the time period

provided by Fed. R. Civ. P. 4(m), the district court erred in

dismissing these claims as time-barred. This holding serves only

to rescue Manieri’s federal claims. Manieri’s state claims are

still barred by operation of Article 3462.

For the foregoing reasons we AFFIRM the district court’s

judgment dismissing Plaintiff-Appellant’s state law claims and

REVERSE the judgment to the extent that it dismisses claims based

on federal law. Appellees shall bear the costs of this appeal.

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