IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-30850 Summary Calendar

MATTHEW VAUGHN, JR, Individually & as Administrator & Natural Tutor of his minor son, on behalf of Matthew Vaughn, III,

Plaintiff-Appellant,

v.

TRAVIS FRAME, Individually & in his official capacity as officer for Melville Police Department; RANDY ROWE, Individually & in his official capacity as officer for Melville Police Department; TOWN OF MELVILLE; POLICE DEPARTMENT OF MELVILLE,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 98-CV-2421 -------------------- February 14, 2000

Before KING, Chief Judge, and WIENER and BARKSDALE, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Matthew Vaughn, Jr. (“Vaughn”),

individually and as Natural Tutor of his son, Matthew Vaughn III,

appeals the district court's grant of summary judgment in favor

of Defendants-Appellees and its dismissal of his suit with

prejudice. We AFFIRM.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

1 Vaughn originally filed suit against Defendants-Appellees

Travis Frame and Randy Rowe, individually and in their capacities

as police officers for the Town of Melville, the Town of

Melville, and the Police Department of Melville (collectively,

the “Appellees”) in Louisiana state court on September 9, 1998.

Vaughn alleged that officers Frame and Rowe violated his son’s

civil rights on October 11, 1997. The suit sought damages under

and Louisiana civil rights laws. On December

10, 1998, Vaughn requested that the clerk proceed with service of

process against the Appellees. After being served, the Appellees

removed the case to federal court and moved for summary judgment

on the ground that they had not been timely served. The district

court granted the motion and, finding that Vaughn’s cause of

action had prescribed, it dismissed his suit with prejudice.

Vaughn timely appeals.

This court reviews the district court's grant of summary

judgment de novo. Weyant v. Acceptance Ins. Co.,

(5th Cir. 1990). Summary judgment is proper when there is no

genuine issue of material fact and the moving party is entitled

to judgment as a matter of law. See Celotex Corp. v. Catrett,

(1986); Fed. R. Civ. P. 56(c). If the moving party

meets the initial burden of establishing that there is no genuine

issue, the burden shifts to the nonmoving party to produce

evidence of the existence of a genuine issue for trial. See

Little v. Liquid Air Corp.,

(5th Cir. 1994)

(en banc).

2 A federal district court looks “to state law to ascertain

whether service was properly made prior to removal.” Freight

Terminals, Inc. v. Ryder Sys., Inc.,

(5th

Cir. 1972). Objections regarding service of process which arise

prior to removal may be raised in federal court and are not

waived by removal. See Mullen v. Sears, Roebuck, and Co.,

(5th Cir. 1989). Such objections remain available to

the defendant even if they would not have been available had the

suit originated in federal court. See

Vaughn argues that the district court erred in granting

Appellees’ motion for summary judgment and dismissing his claims

with prejudice because: (1) he had "good cause" for failing to

request service within the time provided for by Section 13:5107

of the Louisiana Revised Statutes; (2) no contradictory hearing

was held with respect to the Appellees' summary judgment motion;

and (3) under Section 9:5801 of the Louisiana Revised Statutes

the prescriptive period was tolled upon Vaughn’s filing in state

court, even if his request for service was untimely. These

arguments are without merit.

Vaughn's request for service was untimely. See La. Rev.

Stat. Ann. § 13:5107(D) (West 2000). Louisiana law requires

that, in any suit naming “the state, a state agency, or political

subdivision, or any officer or employee thereof,” service “shall”

be requested within ninety days of filing suit. Id. Vaughn did

not request service until ninety-two days after he filed suit.

He argues, however, that article 1672(C) of the Louisiana Code of

3 Civil Procedure prohibits dismissal if the plaintiff can show

“good cause [for] . . . why service could not be requested” in a

timely manner. La. Code Civ. Proc. Ann. art. 1672(C) (West

2000). We are wholly unconvinced that Vaughn’s reason for

failing to make a timely request for service, ongoing settlement

negotiations with the Appellees’ insurer, is “good cause” within

the meaning of article 1672(C). Simply put, the existence of

ongoing settlement negotiations does not show that Vaughn “could

not . . . request[]” service. Id.

Vaughn’s argument that a contradictory hearing should have

been held on Appellees’ motion for summary judgment is equally

without merit. Neither article 1672(C) nor § 13:5107(D) requires

a hearing before dismissing a case for failure to make a timely

request for service. They require only that a contradictory

motion be made. Appellees’ motion for summary judgment was not

ex parte, it was served upon Vaughn and Vaughn filed pleadings in

opposition. Therefore, the motion for summary judgment

constituted a contradictory motion. See La. Code. Civ. Proc.

Ann. art. 963 (West 1984).

The district court properly determined that Vaughn’s suit

was time-barred. When a suit is dismissed pursuant to

§ 13:5107(D), the running of the prescriptive period is not

interrupted or suspended by filing suit.2 Because there is no

2 The statute provides that “[w]hen the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action . . . shall not interrupt or suspend the running of

4 No. 99-30850 -5-

federal statute of limitations governing § 1983 actions, 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 Louisiana law provides for a one

year prescriptive period. See La. Civ. Code. Ann. art. 3492

(West 1994).

The incident Vaughn complains of occurred on October 11,

1997. However, Vaughn did not request service until December 10,

1998. By operation of § 13:5107(D)(3), Vaughn did not interrupt

or suspend the running of prescription by filing suit. Thus,

Vaughn’s claims prescribed because he failed to request service

within one year of the alleged injury. As such, it was proper

for the district court to dismiss Vaughn’s claims with prejudice.

Vaughn has failed to show that there is a genuine issue of

fact for trial. The district court was therefore correct in

granting the Appellees’ motion for summary judgment and

dismissing Vaughn’s claims with prejudice. We AFFIRM.

prescription.” La. Rev. Stat. Ann. § 13:5107(D)(3) (West 2000).

5