Murray v. Gray
Supreme Court of Mississippi
July 22, 2021, Decided
NO. 2018-CT-01550-SCT

Reporter
2021 Miss. LEXIS 187 *
STACIE MURRAY v. JAMES GRAY d/b/a GRAY TRUCKING AND KEVIN PARKER
Prior History: [*1] COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 06/28/2018. TRIAL JUDGE: HON. MARK SHELDON DUNCAN. TRIAL COURT ATTORNEYS: S. MALCOLM HARRISON, MICHAEL E. PHILLIPS, JACOB O. MALATESTA, CLAIRE K. ROBINETT.
Disposition: THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT IS REVERSED AND REMANDED.

NATURE OF THE CASE: CIVIL – PROPERTY DAMAGE
EN BANC.
GRIFFIS, JUSTICE, FOR THE COURT:
P1. In this certiorari case, we consider whether allowing cross-examination of an expert witness with the accident report and a judicial opinion from another case amounted to reversible error. We also consider whether cumulative error requires a new trial. We affirm the judgment of the Court of Appeals for the reasons set forth in this opinion, and we reverse the judgment of the Scott County Circuit Court and remand the case for a new trial.

FACTS AND PROCEDURAL HISTORY
P2. On the night of April 1, 2014, Stacie Murray was driving home from work in the [*2] northbound lane on Highway 35 in Scott County. Kevin Parker, while in the course and scope of his employment with James Gray d/b/a Gray Trucking (Gray), was driving a fully loaded log truck in the southbound lane. The two vehicles collided. Murray sued Parker and Gray in the Scott County Circuit Court and alleged that she suffered personal injuries and property damage as a result of Parker’s negligence.
P3. At trial, Murray testified that she was “alert” and “traveling north” on “[her] side of the road” with “no problems.” The last thing she remembered just before the accident “was lights.” Murray was “[p]ositive” she was in her lane when she saw the lights, and she was “certain” the lights she saw were in her lane. On cross-examination, Murray reiterated that she was in her lane at the time of the accident. But she agreed with defense counsel that she did not have a specific “memory of where th[e] collision took place.” On redirect examination, Murray again testified that she was in her lane at the time of the accident and that she never deviated into the southbound lane. But on recross-examination, Murray again equivocated as to whether she was certain that she was in her lane at [*3] the moment of the collision.
P4. Parker testified that he was driving his truck in the southbound lane of Highway 35 when Murray’s car entered his lane and drove “head-on” toward his truck. In order to avoid Murray’s vehicle, Parker swerved to the right and drove off the highway about four to six feet. After the collision, Parker brought his truck to a stop along the side of the highway. Parker testified that he never entered Murray’s lane and that the collision had occurred entirely in his lane.
P5. James Hannah testified for Murray as an expert in accident reconstruction. Hannah testified that he visited the accident scene about two months after the accident and found a “gouge mark” in the highway that, in his opinion, indicated the area of impact. Hannah admitted that the highway patrolman who investigated the wreck, Trooper Greg Lucas, did not find or photograph a gouge mark. Hannah also admitted that he did not know whether the gouge mark was actually caused by the collision. He acknowledged that the gouge mark could have been there before the accident. Hannah did not photograph the gouge mark during his initial visit to the accident scene. When Hannah next visited the scene, about [*4] two years later, the highway had been overlaid, and the gouge mark was no longer visible.
P6. Gray and Parker filed a pretrial motion to exclude Hannah’s testimony and opinions regarding the alleged gouge mark. They argued that Hannah’s testimony was based on “mere speculation” and was neither relevant nor reliable. But the trial court denied the motion and allowed Hannah to testify about the gouge mark.1
P7. Hannah testified that the location of the alleged gouge mark indicated that the collision had occurred in the center of the road in the southbound lane—i.e., Parker’s lane. Thus, Hannah believed that a portion of Murray’s vehicle had crossed into Parker’s southbound lane before the collision. Hannah disbelieved Parker’s testimony that Parker had swerved four to six feet off the highway in an effort to avoid Murray’s vehicle because Hannah “found no information that put [Parker] on the shoulder [of the highway].” But Hannah accepted as true Parker’s testimony and theorized that Parker’s four-to-six-foot swerve must have started in Murray’s lane—i.e., Parker must have invaded Murray’s lane before swerving back to his right at the last moment. Hannah opined that Parker had crossed the [*5] center line and was at fault.
P8. Over Murray’s objections, defense counsel cross-examined Hannah regarding the Uniform Crash Report (UCR) (i.e., the accident report) that Trooper Lucas prepared after the accident. Defense counsel read directly from the UCR’s narrative section, which reflected Trooper Lucas’s opinions regarding the vehicles’ paths and the cause of the accident. Also over Murray’s objections, during cross-examination, defense counsel asked Hannah questions about an adverse Daubert2 ruling in a federal district court opinion and evidence in two other cases in which Hannah had testified as an expert. In addition, defense counsel asked questions as he read from one of the judicial opinions.
P9. After Murray rested, Gray and Parker called Trooper Lucas to testify. Defense counsel asked Trooper Lucas what Parker had told him about the accident that night at the scene, and Murray asserted a hearsay objection. The trial court overruled Murray’s objection, and Trooper Lucas testified, “I asked [Parker] what happened. He stated to me that the car come in on him and he swerved right to avoid the car.” Trooper Lucas testified that when he asked Murray what happened, “she replied [*6] she did not know.”
P10. Trooper Lucas later testified without objection that in his opinion based on his investigation, the collision had occurred in the southbound lane and that Murray’s vehicle had crossed the center line and had struck Parker. Trooper Lucas’s photographs of the accident scene and debris were admitted into evidence. Over Murray’s objection, the UCR that Trooper Lucas prepared was also admitted into evidence. The final page of the report included a diagram and narrative that reflect Lucas’s opinions and conclusions that Murray’s car had crossed the center line and had caused the collision.
P11. The jury returned a nine-to-three verdict in favor of Gray and Parker. Murray filed a motion for a new trial, which the trial court denied. Murray timely appealed.
P12. The Court of Appeals reversed and remanded the case for a new trial. It found
that a new trial [wa]s required because Murray’s hearsay objection [regarding what Parker had told Trooper Lucas the night of the accident] should have been sustained, the UCR should not have been admitted into evidence or read during [the] cross-examination of Murray’s expert, and Murray’s expert should not have been cross-examined about [*7] a court’s opinion and evidence from other cases.
Murray v. Gray, No. 2018-CA-01550-COA, 2020 Miss. App. LEXIS 422, 2020 WL 4436712, at *1 (Miss. Ct. App. 2020). The court concluded that “Murray [wa]s entitled to a new trial based on the cumulative effect of errors during the first trial.” 2020 Miss. App. LEXIS 422, [WL] at *12.
P13. Gray and Parker filed a petition for writ of certiorari and argued that the Court of Appeals erred by determining that the trial court had abused its discretion by (1) allowing Gray and Parker to cross-examine Hannah with the UCR, (2) allowing Gray and Parker to cross-examine Hannah about a judicial opinion in another case, and (3) finding that Murray was entitled to a new trial based on the cumulative effect of errors during the first trial. We granted the petition.

STANDARD OF REVIEW
P14. “An abuse-of-discretion standard of review is applied to the trial court’s admission or exclusion of evidence.” Hartel v. Pruett, 998 So. 2d 979, 984 (Miss. 2008) (citing Tunica Cnty. v. Matthews, 926 So. 2d 209, 212 (Miss. 2006)).

ANALYSIS

I. Whether the trial court abused its discretion by allowing defense counsel to use the UCR to cross-examine Murray’s expert.
P15. Gray and Parker argue “that the Court of Appeals erred in its determination that the trial court abused its discretion . . . by allowing Gray and Parker to cross-examine . . . Hannah with the subject UCR.” They claim the UCR was properly used during Hannah’s cross-examination. [*8] In support, Gray and Parker rely on Rebelwood Apartments RP, LP v. English, 48 So. 3d 483 (Miss. 2010).

A. Admissibility of Law-Enforcement Accident Reports
P16. Law-enforcement accident reports are not automatically admissible under the Mississippi Rules of Evidence. Whether an accident report is admissible depends on its contents and manner in which it is offered into evidence. Certainly, an officer may testify about the information contained in the accident report that is within the officer’s personal knowledge.3 Often, however, an accident report also contains information that the officer obtained from others, and the officer has no personal knowledge of the facts sought to be admitted.4 Sometimes, an officer may testify about the contents of the accident report through the officer’s opinion as a lay witness (Mississippi Rule of Evidence 701) or opinion as an expert witness (Mississippi Rule of Evidence 702).

B. Rebelwood: An Exception to the Hearsay Rule.
P17. Rebelwood was a premises-liability/wrongful-death suit against Rebelwood Apartments, an apartment complex in South Jackson. Rebelwood, 48 So. 3d at 485. The decedent, Crystal Coleman, lived at Rebelwood, and her body was found in the front passenger seat of her car in Rebelwood’s parking lot. Id. She had died from a gunshot wound. Dwight English, the father of Crystal’s youngest [*9] child, sued Rebelwood and alleged that it had failed to provide adequate security. Id. But Cleveland Ellis, III, an acquaintance of Crystal, confessed that he had killed Crystal at another apartment complex and then drove her body to Rebelwood. Id. The Jackson Police Department (JPD) obtained evidence that corroborated Ellis’s story. Id.
P18. Before trial, English filed a motion to exclude the JPD report and argued that the report contained inadmissible and prejudicial hearsay. Id. The trial court agreed and excluded the police report. Id.
P19. At trial, English presented testimony from numerous witnesses that “varied significantly from the witnesses’ [prior] statements to JPD officers during the investigation . . . .” Id. Additionally, two of English’s expert witnesses “testified that it was a fact that the shooting occurred at Rebelwood.” Id. at 489. Another of English’s expert witnesses, Tyrone Lewis, then the deputy chief of the JPD, even testified that there was “no documentation, no written statements or anybody to come forward to say that it did not happen [at Rebelwood].” Id. (alteration in original) (internal quotation mark omitted). But based on the trial court’s pretrial ruling, Rebelwood [*10] was not allowed to cross-examine English’s experts regarding the findings of JPD’s investigation and the JPD report. Id. at 490-92, 494.
P20. The jury returned a $ 3 million verdict against Rebelwood. Id. at 486. Rebelwood appealed. On appeal, this Court addressed two issues related to the JPD report: (1) whether the report was admissible as substantive evidence, and (2) whether Rebelwood was entitled to use the report to cross-examine English’s experts. Id. at 491-94.
P21. Regarding the first issue, this Court noted that “[e]ven though police reports, if offered in evidence to prove the truth of the matter asserted are hearsay . . ., they may be admissible under the hearsay exception in [Mississippi Rule of Evidence] 803(8).” Id. at 491. We explained that a “conclusion in a police report may be admitted if it is ‘based on a factual investigation[,] and [it] satisfies the Rule’s trustworthiness requirement.'” Id. at 493 (second alteration in original) (quoting Fleming v. Floyd, 969 So. 2d 881, 885 (Miss. Ct. App. 2006), rev’d on other grounds, 969 So. 2d 868 (Miss. 2007)). This Court discussed four factors relevant to a police report’s trustworthiness: “(1) the timeliness of the investigation; (2) the investigator’s skill or experience; (3) whether a hearing was held; and (4) possible bias when reports are prepared with a view to possible litigation.” [*11] Id. at 493 (internal quotation marks omitted) (quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 168 n.11, 109 S. Ct. 439, 102 L. Ed. 2d. 445 (1988)). As to the question of whether the police report should be admitted in evidence, this Court concluded that these factors supported the admission of the JPD report and that the trial court had abused its discretion by “failing to perform a trustworthiness analysis before excluding the police report in its entirety . . . .” Id. at 493-94.
P22. Regarding the second issue, whether Rebelwood was entitled to use the report to cross-examine English’s experts, this Court held that the trial court abused its discretion by prohibiting Rebelwood from using the JPD report to cross-examine English’s experts “when each liability expert testified that he had relied at least in part on the excluded document to formulate his opinion.” Id. at 494.
P23. “English’s experts testified that they had relied on portions of the police reports to formulate their opinions, but Rebelwood was prohibited from effective cross-examination designed to impeach their opinion testimony by revealing the contents of the reports they allegedly had relied upon.” Id. at 491. As a result, witnesses such as Deputy Chief Lewis were allowed “to testify with impunity and without fear of exposure” that there was “no [*12] documentation” or “written statements . . . to say that [the shooting] did not happen [at Rebelwood].” Id. at 492 (third alteration in original) (internal quotation mark omitted). This Court noted that “[t]he trial court should have known that Lewis’s statement was untrue” because “repeated references and statements to the contrary exist[ed] throughout the investigative reports.” Id. Thus, the Court concluded that the trial court’s ruling “left [the jury] with a false impression” about the JPD reports, “violated the purpose and construction” of the rules of evidence (i.e., to determine the truth), and denied Rebelwood “a fundamentally fair opportunity to cross-examine” English’s witnesses. Id. Hence, this Court determined that Rebelwood was entitled to use the report to cross-examine English’s experts when the failure to do so would impede Rebelwood’s right to a fair trial and the determination of the truth.

C. Application of Rebelwood Here
P24. Here, the trial court found that under Rebelwood, defense counsel could cross-examine Hannah regarding the UCR, including the narrative section prepared by Trooper Lucas, because Hannah had relied at least in part on the document to formulate his opinion. [*13] Defense counsel read directly from the UCR’s narrative section, which reflected Trooper Lucas’s opinions and conclusions regarding the vehicles’ path and the cause of the accident, and then he asked Hannah if Hannah agreed or disagreed. For example:
Defense Counsel: Okay. Continuing on to the “Narrative” portion. “Ms. Murray crossed the center line and struck the rear wheels of the left side.” Do you agree with that or do you dis[agree?]
. . . .
Defense Counsel: Okay. The next part says, “Ms. Murray continued north and struck Mr. Parker at the left trailer wheel.” Do you agree or disagree with that finding from Trooper Lucas?
P25. After Hannah’s testimony, Trooper Lucas was called as a witness.5 Trooper Lucas testified regarding his opinion of where and how the accident occurred.6 He concluded that the collision had occurred in the southbound lane and that Murray’s vehicle had crossed the center line and struck Parker. The trial court admitted the UCR during Trooper Lucas’s testimony after concluding that it satisfied the trustworthiness requirement of Rule 803(8).
P26. Thus, the trial court, relying on Rebelwood, found that the UCR was admissible and that defense counsel could cross-examine Hannah [*14] with the UCR, including its narrative and diagram. But we find that this case is distinguishable from Rebelwood.
P27. As the Court of Appeals noted,
This case raises a different issue than Rebelwood. The JPD reports in Rebelwood compiled evidence gathered by the investigating officers and reached certain factual conclusions. But the JPD reports did not offer expert opinions. The UCR in this case, in contrast, includes not only evidence based on Trooper Lucas’s direct observations of the crash scene but also a narrative and diagram that essentially reconstruct the subject crash based on Lucas’s opinions as to how that crash occurred. This is a material difference between this case and Rebelwood.
. . . .
. . . [A]lthough Trooper Lucas had substantial experience investigating accidents and preparing accident reports, there was no evidence that he was qualified as an expert in accident reconstruction. Indeed . . ., the defense stated that they would not attempt to qualify him as an expert in that field.
Murray, 2020 Miss. App. LEXIS 422, 2020 WL 4436712, at *7, *9.
P28. The Court of Appeals properly concluded that “[b]ecause Trooper Lucas was not qualified as an expert in accident reconstruction, his opinions on the paths of the subject vehicles and fault [*15] did not satisfy Rule 803(8)’s trustworthiness requirement. Accordingly, the trial court abused its discretion by admitting the UCR’s narrative and diagram.” 2020 Miss. App. LEXIS 422, [WL] at *9 (citing Mitchell v. Barnes, 96 So. 3d 771, 780 (Miss. Ct. App. 2012)).
P29. Notably, Gray and Parker do not contest this issue. Indeed, they do not argue on certiorari that the UCR’s narrative and diagram were properly admitted.7 Instead, they argue that the UCR was properly used in its entirety to cross-examine Hannah “in order to clarify to the jury that conflicting evidence existed within the UCR.” We disagree and find that the trial court erred by admitting the UCR and allowing defense counsel to use the UCR’s narrative and diagram to cross-examine Hannah.
P30. Relying on Rebelwood, Gray and Parker assert that “[b]ecause the UCR is the only evidence that . . . Hannah relied upon when forming his expert opinion,” it is only “fair” that they be allowed “to cross-examine [Hannah] with th[e] entire UCR[.]” But the record clearly reflects that the UCR was not the only evidence Hannah relied on in formulating his opinion. Hannah testified that his opinion was based on the UCR as well as testimony from the parties, his review of the accident scene, and his review of the vehicles. Hannah explained that [*16] he relied on the UCR in that it “gave [him] a location, a date, a time, and . . . photographs . . . that [he] used then and now.” In other words, Hannah relied on the UCR for factual information. Yet defense counsel was allowed to use the UCR to cross-examine Hannah regarding Trooper Lucas’s opinions as noted in the narrative and diagram. As the Court of Appeals properly stated, “[t]here is no general right to cross-examine an opposing party’s expert about the inadmissible opinions of a non-expert.” Murray, 2020 Miss. App. LEXIS 422, 2020 WL 4436712, at *10. Simply because Hannah relied in part on the UCR does not “open the door to cross-examination about otherwise inadmissible parts of the UCR.” Id.
P31. Gray and Parker further assert that Hannah’s testimony misled the jury. They claim that “[b]y extolling the investigative efforts of Trooper Lucas, [Hannah] gave the impression to the jury that the UCR, along with Trooper Lucas’s investigations, supported Hannah’s expert opinion that . . . Parker caused this accident” when, “[i]n reality, the UCR and [Trooper] Lucas’s findings did not support his opinion.” But we agree with the Court of Appeals:
[Unlike in Rebelwood,] Hannah’s testimony did not mislead the jury or give a false impression about [*17] the UCR. Nor did Hannah . . . make any factual claims that the UCR would have shown to be false. Nor did Hannah state or imply that Trooper Lucas agreed with his opinions about how the wreck occurred or which driver was at fault.
Id.
P32. Moreover, unlike in Rebelwood, Hannah’s testimony did not deny Gray and Parker “a fundamentally fair opportunity to cross-examine” Hannah. Rebelwood, 48 So. 3d at 492. Indeed, Gray and Parker “could have conducted a full and fair cross-examination of Hannah without injecting Trooper Lucas’s opinions into the case.” Murray, 2020 Miss. App. LEXIS 422, 2020 WL 4436712, at *10. In fact, Trooper Lucas’s opinions mirrored Parker’s testimony—that Murray had crossed the center line into Parker’s lane of traffic. And Hannah testified that he relied on Parker’s testimony in formulating his opinions. Gray and Parker had the opportunity and did in fact cross-examine Hannah regarding Parker’s version of the accident.
P33. We agree with the Court of Appeals and find that the trial court abused its discretion “by allowing cross-examination of Hannah concerning Trooper Lucas’s opinions, as reflected in the narrative and diagram sections of the UCR.” Id. Further, we reiterate that a trial court should be very careful in the admission of a report of law [*18] enforcement. Such reports are not admissible as a matter of right under Rule 803(6) or (8). Instead, the trial court must examine the information sought to be used from the accident report and consider the admission of such evidence based on the Mississippi Rules of Evidence.

II. Whether the trial court abused its discretion by allowing defense counsel to cross-examine Hannah about an adverse Daubert ruling in another case and the evidence in two other cases in which Hannah testified.
P34. During cross-examination of Hannah, defense counsel also attempted to examine Hannah using several judicial opinions from cases in which Hannah had previously been excluded or testified as an expert witness. These cases were identified as Burnham v. Austin, No. 3:14-cv-435-WHB-RHW (S.D. Miss. Sept. 11, 2015), Mitchell v. Barnes, 96 So. 3d 771 (Miss. Ct. App. 2012), and Davis v. Ford Motor Co., No. Civ. A 302CV271LN, 2006 U.S. Dist. LEXIS 2651, 2006 WL 83500 (S.D. Miss. Jan. 11, 2006).
P35. Murray first claims it was error to cross-examine Hannah about other cases in which he had been excluded or testified as an expert and to “read aloud opinions from various courts.” Murray next argues that it was error when Hannah was asked whether he was aware that the court, in Burnham,8 had “struck your opinions as not being sufficiently tied to the facts or evidence in the record so as to be admissible.” [*19]
P36. Gray and Parker admit that counsel attempted to cross-examine Hannah with facts from the Burnham, Mitchell, and Davis. They argue that counsel did not read aloud court opinions to the jury. Rather, they claim that counsel tried to use the facts from these cases in an attempt to refresh the witness’s memory to cross-examine Hannah on the credibility of his opinions.
P37. The Court of Appeals considered whether it was proper to cross-examine an expert about judicial decisions in other cases. The court found that the trial court abused its discretion by allowing the cross-examination because “it had no relevance to the present case and yet created a risk of unfair prejudice, misleading the jury, and confusing the issues.” Murray, 2020 Miss. App. LEXIS 422, 2020 WL 4436712, at *12 (citing MRE 401-403).
P38. We firmly recognize that a trial is a search for the truth. And cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of the truth.” 3 Wigmore, Evidence § 1367 (2d ed. 1923); see also California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489 (1970)). An expert witness is subject to “wide-open cross-examination” on “any matter that is relevant. . . .” Redding v. Miss. Transp. Comm’n, 169 So. 3d 958, 964 (Miss. Ct. App. 2014) (internal quotation mark omitted) (quoting Anthony v. State, 108 So. 3d 394, 397 (Miss. 2013)). Thus, we find it is entirely proper [*20] to impeach an expert witness by showing that he has offered inconsistent opinions in prior litigation. See 1 McCormick on Evidence § 35 (8th ed. 2020) (“If a witness, such as an expert, testifies in terms of opinion, all courts permit impeachment by showing the witness’s previous expression of an inconsistent opinion.” (citing McGrath v. Fash, 244 Mass. 327, 139 N.E. 303 (1923))), Westlaw (database updated Jan. 2020). Likewise, it is also proper to impeach a witness by challenging the reliability of his opinions or by arguing that his opinions were not based on sufficient facts or data or were not the product of reliable principles and methods and that he failed to reliably apply the principles and methods to the facts of this case. MRE 702(b)-(d). Here, the impeachment apparently sought to prove that Hannah had a pattern of finding gouge marks and failing to photograph or document the gouge marks’ exact location so that the reliability of the opinion could be considered, applied, or challenged by other experts in their opinions.
P39. The judge had made it clear that his close evidentiary call in allowing Hannah to testify about the supposed gouge marks would be met and handled by vigorous cross-examination.9 And this approach is exactly what the [*21] Supreme Court endorsed in Daubert. Daubert, 509 U.S. at 596 (“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”). Instead of excluding “shaky but admissible” expert testimony, the trial court could certainly opt for aggressive and sweeping cross-examination to expose weaknesses in expert opinions. Id. So it was within the judge’s broad discretion to deem these inquiries relevant.
P40. What the judge did was permit Gray and Parker to question Hannah using judicial opinions about Hannah’s previous Daubert exclusions and testimony—particularly the Burnham case. That said, contrary to the Court of Appeals’ framing of the issue, Burnham, Mitchell, and Davis were not used simply to impeach Hannah under Mississippi Rule of Evidence 611. Rather, according to Gray and Parker’s counsel’s own words at trial, he was attempting to use these judicial opinions under Mississippi Rule of Evidence 612 to refresh Hannah’s memory or recollection of events.10 And while it is certainly fine to use judicial opinions to refresh an expert’s recollection, it was the manner in which the judge permitted the refreshing that causes [*22] our concern and in which we find error.
P41. Rule 612 allows counsel to use a writing to refresh a witness’s memory. MRE 612. The advisory committee note states:
The purpose of Rule 612 is to stimulate memory in order to ascertain credible evidence.
If the witness uses a writing, recording or object (e.g., a photograph) while testifying, the adversary has the right to see such writing, recording or object, to cross-examine on the basis of these items, and to have the relevant portions introduced into evidence. If, on the other hand, the witness uses such items to refresh his memory before testifying, then it is within the trial court’s discretion [*29] to allow the adversary to see them.
MRE 612 advisory comm. n.
P42. Though it is not everyday an attorney attempts to refresh the recollection of a witness he or she is cross-examining, our evidentiary rules do not preclude it. Rule 612(a) allows the questioning attorney to use any document or other item to try to jog or refresh the witness’s memory or recollection. Counsel may offer the witness his written notes, a recording of an interview, a newspaper article, an affidavit, a photograph, or even a social media post. The rule does not limit what the witness may use to jog his memory. Any document may be used.11 Thus, under Rule 612, a judicial opinion from another case in which Hannah was excluded or had previously testified may certainly be used to refresh his memory or recollection.
P43. However, Rule 612(a) also requires that the witness must testify that the document does in fact refresh his memory or recollection of the events that are the subject of his or her testimony.
P44. Thus, while Gray and Parker’s counsel were within the rule to provide a judicial opinion to Hannah, counsel could only ask Hannah to review the opinion and answer whether this opinion refreshed his memory or recollection. If Hannah answered that [*30] question yes, counsel could continue the line of questioning without reading from the document. If Hannah answered no—as far as refreshing recollection goes—counsel would have to simply move on to another line of questioning. What counsel could not do under Rule 612 is what counsel did in fact do—ask Hannah to read from the judicial opinions. We ultimately reach the same conclusion as the Court of Appeals—albeit for a slightly different reason—that the manner in which this questioning was permitted was error.

III. Whether the weight of the evidence is sufficient to outweigh any harm done by the trial court’s errors.
P45. “For a case to be reversed based on the admission or exclusion of evidence, a party must be actually prejudiced, harmed, or have a substantial right adversely affected.” Ill. Cent. R.R. Co. v. Brent, 133 So. 3d 760, 779 (Miss. 2013) (citing Bower v. Bower, 758 So. 2d 405, 413 (Miss. 2000)). Under the harmless-error doctrine, “if ‘the weight of the evidence . . . is sufficient to outweigh [any] harm done by allowing admission of the evidence’ then reversal is not warranted.” Id. (second alteration in original) (quoting Bower, 758 So. 2d at 413). But “multiple errors, which alone may not require reversal, may constitute reversible error if the cumulative effect of the errors resulted in an unfair trial.” Lacoste v. Lacoste, 197 So. 3d 897, 913 (Miss. Ct. App. 2016) (citing [*31] Blake v. Clein, 903 So. 2d 710, 732 (Miss. 2005)).
P46. The Court of Appeals found “Murray [wa]s entitled to a new trial based on the cumulative effect of errors during the first trial.” Murray, 2020 Miss. App. LEXIS 422, 2020 WL 4436712, at *12. But, Gray and Parker argue, “[t]he weight of the evidence at trial was sufficient to outweigh any harm done by the trial court’s alleged errors.” They contend that “[a]ny error was harmless because the trial court could have directed a verdict12 based upon Hannah’s opinions . . . that the accident occurred within . . . Parker’s southbound lane of traffic.” We disagree.
P47. Hannah opined that based on a gouge mark he found at the scene, the collision or “area of impact” occurred in the southbound lane. Gray and Parker assert that this is “overwhelming evidence that the accident occurred completely within Parker’s southbound lane of traffic.” In other words, Gray and Parker assert there is overwhelming evidence that Murray crossed the center line and was at fault. But Hannah testified that both Murray and Parker’s vehicles crossed the center line. And Murray testified that her vehicle was in her lane, the northbound lane, at the time of the collision. Moreover, Hannah’s opinions regarding the area of impact were based on a gouge mark that only he found [*32] and failed to photograph. Trooper Lucas, who was on the scene shortly after the collision occurred, did not find or notice any gouge mark, and no gouge mark appeared in his photographs of the accident scene.
P48. Additionally, as the Court of Appeals noted,
[I]t would be difficult, if not impossible, for us as an appellate court to say that the evidence was “overwhelming”—or to declare with confidence that the error was “harmless”—when we know that three of the twelve jurors, who listened to and observed the witnesses firsthand, found in favor of Murray despite the admission of hearsay13 that improperly bolstered Parker’s testimony.
Murray, 2020 Miss. App. LEXIS 422, 2020 WL 4436712, at *14.
P49. Considering the errors at trial, including the admission of the UCR and the improper cross-examination of Hannah, and given the divided jury verdict, “we cannot say that the evidence was so overwhelming that the cumulative effect of these errors can be dismissed as harmless.” Id.

CONCLUSION
P50. We find that Murray is entitled to a new trial. We therefore affirm the decision of the Court of Appeals, and we reverse the judgment of the Scott County Circuit Court and remand this matter to that court for a new trial.
P51. THE JUDGMENT OF THE COURT OF APPEALS [*33] IS AFFIRMED. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT IS REVERSED AND REMANDED.
RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

2021 WL 2849971

United States Court of Appeals, Fifth Circuit.
David FRANCO, Plaintiff—Appellant,
v.
MABE TRUCKING COMPANY, INCORPORATED; Richard Agee; National Interstate Insurance Company, Defendants—Appellees.
No. 19-30316
|
FILED July 8, 2021
Appeal from the United States District Court for the Western District of Louisiana, USDC No. 5:17-CV-871, Terry A. Doughty, U.S. District Judge
Attorneys and Law Firms
Benton Gaines Ross, Monsour Law Firm, Longview, TX 75601, Gerald Adam Savoie, Dudley DeBosier Injury Lawyers, Shreveport, LA 71105, for Plaintiff-Appellant.
Michael Paul Sharp, Timothy Russell George, Senior Counsel, Adam J. Strange, Fee, Smith, Sharp & Vitullo, L.L.P., Dallas, TX 75240, Guy D. Perrier, Esq., Perrier & Lacoste, L.L.C., New Orleans, LA 70130, for Defendants-Appellees.
Before King, Jones, and Dennis, Circuit Judges.
Opinion

James L. Dennis, Circuit Judge:

*1 David Franco sued Mabe Trucking Co. (“Mabe”) in the United States District Court for the Eastern District of Texas after Franco’s car accident with a truck owned by Mabe and operated by a Mabe employee. The car-truck mishap had occurred in Louisiana a few miles from its border with Texas. The Texas federal district court concluded that Mabe lacked sufficient contacts with Texas to subject the company to personal jurisdiction in the state. However, the court found that it was in the interests of justice not to dismiss the case and instead transferred it to the United States District Court for the Western District of Louisiana, the federal district court sitting in the district in which the accident occurred. But the Louisiana federal district court concluded that Franco’s claims were untimely and granted summary judgment for Mabe. For the following reasons, we REVERSE and REMAND.

I.
On November 24, 2015, Franco was involved in a vehicular accident with a truck owned by Mabe and operated by Mabe’s employee. The accident occurred in Louisiana, three miles from the Texas border. Franco filed suit against Mabe in the Eastern District of Texas on November 22, 2016, two days before the one-year anniversary of the accident, and Franco served Mabe on January 20, 2017. Finding that it lacked personal jurisdiction over Mabe due to Mabe’s lack of significant contacts with Texas, the Texas federal district court transferred the case to the Western District of Louisiana, which would likely have possessed specific jurisdiction under the Louisiana long-arm statute to try claims against Mabe related to the accident because the court sat within the district in which the accident occurred.1 See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (noting that a court’s exercising specific jurisdiction over an out-of-state defendant is constitutional when a suit arises out of the defendant’s contacts with the forum state). The Texas district court magistrate judge explained: “Because the Court lacks personal jurisdiction over [Mabe], and hence venue under § 1391(b)(1) is improper, the Court finds it suitable in the ‘interests of justice’ to transfer the case to the Western District of Louisiana, the district where the accident occurred. See 28 U.S.C. § 1406(a).”2

*2 Mabe moved for summary judgment in the Louisiana district court, arguing that Franco’s claims had prescribed under Louisiana law.3 See LA. Civ. Code arts. 3492, 3462. Louisiana Civil Code Article 3492 establishes a one-year prescriptive period for delictual actions like the one Franco brought against Mabe. Article 3462 provides that prescription is interrupted when a party files suit “in a court of competent jurisdiction and venue”; if a party files suit in a court of incompetent jurisdiction or improper venue, however, prescription is interrupted “only as to a defendant served by process within the prescriptive period.” LA. Civ. Code art. 3462. Mabe argued that Franco’s claims were prescribed because he filed suit in the Texas district court, which was an incompetent court, and failed to serve Mabe within the one-year prescriptive period.

The Western District of Louisiana court initially denied Mabe’s motion, concluding that 28 U.S.C. § 1631 rendered Franco’s claims timely. Under § 1631, when a federal “court finds that there is a want of jurisdiction” and that a transfer would be “in the interest of justice,” “the court … shall transfer” the action to another court “in which the action could have been brought” and the transferred action “shall proceed as if it had been filed in … the court to which it was transferred … on the date it was actually filed in … the court from which it was transferred.” The Louisiana district court concluded that the transfer from the Texas district court was a § 1631 transfer in “all but name,” and therefore the case must be treated “as if” it had been filed in the Western District of Louisiana on November 22, 2016, which is within Louisiana’s one-year prescriptive period.

On Mabe’s motion for reconsideration, however, a different presiding judge of the Louisiana district court reversed the ruling. The court reasoned that § 1631 was not intended to govern prescription and that Article 3462 is a substantive Louisiana law that controlled the diversity action under the doctrine of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, (1938). The court therefore concluded that Franco’s claims were prescribed, entered judgment for Mabe, and dismissed Franco’s claims with prejudice. This appeal followed.

II.
We must first determine whether the Western District of Louisiana properly applied § 1631 to the transferred case. The Eastern District of Texas cited only § 1406(a) when it transferred the case. If the transfer was governed by only § 1406(a) and not § 1631, then § 1631’s interaction with Louisiana’s prescriptive period is not at issue here. If the case was transferred in accordance with § 1631, however, we must next evaluate § 1631’s interaction with Louisiana law to determine whether the Louisiana federal district court properly granted Mabe summary judgment on the basis that Franco’s claims are prescribed. We review a district court’s grant of summary judgment and issues of statutory interpretation de novo. Romero v. City of Grapevine, 888 F.3d 170, 175 (5th Cir. 2018); In re Glenn, 900 F.3d 187, 189 (5th Cir. 2018).

A.
1.
We begin by addressing whether § 1631 is relevant when a district court determines that there is a lack of personal, as opposed to subject-matter, jurisdiction and the interests of justice demand transfer. Mabe argues that § 1631 applies only when a court lacks subject-matter jurisdiction. Our court has not yet had occasion to decide this question. See Bentz v. Recile, 778 F.2d 1026, 1028 n.5 (5th Cir. 1985) (noting the issue but explaining that we need not reach it). If Mabe is correct, there is no need for us to address further whether § 1631 applies to this transfer, for it is undisputed that the Eastern District of Texas possessed subject-matter jurisdiction over Franco’s claim. See 28 U.S.C. § 1332(a) (granting district courts original diversity jurisdiction).

*3 “The task of statutory interpretation begins and, if possible, ends with the language of the statute.” Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 486 (5th Cir. 2013). “When the language is plain, we ‘must enforce the statute’s plain meaning, unless absurd.’ ” Id. (quoting In re Nowlin, 576 F.3d 258, 261-62 (5th Cir. 2009)); see also BedRoc Ltd. v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (“The preeminent canon of statutory interpretation requires us to ‘presume that the legislature says in a statute what it means and means in a statute what it says there.’ ” (alteration omitted) (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992))).

Section 1631 states:
Whenever a civil action is filed in a court as defined in section 610 of this title … and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court … in which the action or appeal could have been brought at the time it was filed …, and the action or appeal shall proceed as if it had been filed in … the court to which it is transferred on the date upon which it was actually filed in … the court from which it is transferred.
28 U.S.C. § 1631.

The text does not confine itself to personal or subject-matter jurisdiction, but instead “a want of jurisdiction” generally. Black’s Law Dictionary defines “want of jurisdiction” to encompass a lack of subject-matter jurisdiction or a lack of personal jurisdiction. See Want of Jurisdiction, Black’s Law Dictionary (11th ed. 2019) (“A court’s lack of power to act in a particular way or to give certain kinds of relief. A court … may lack authority over a person or the subject matter of a lawsuit ….”). The entry for “jurisdiction” also includes sub-entries for both subject-matter jurisdiction (“Jurisdiction over the nature of the case and the type of relief sought”) and personal jurisdiction (“A court’s power to bring a person into its adjudicative process”). See Jurisdiction, Black’s Law Dictionary (11th ed. 2019). Moreover, Congress used “subject-matter jurisdiction” elsewhere in Title 28 and could have similarly restricted § 1631’s ambit if it so wished. See, e.g., 28 U.S.C. § 1390(a) (“[T]he term ‘venue’ refers to the geographic specification of the proper court or courts for the litigation of a civil action that is within the subject-matter jurisdiction of the district courts in general.”); Lozano v. Montoya Alvarez, 572 U.S. 1, 16, 134 S.Ct. 1224, 188 L.Ed.2d 200 (2014) (explaining that when legislators did not adopt “obvious alternative” language, “the natural implication is that they did not intend” the alternative). Accordingly, the plain text of § 1631 indicates that it may apply when a district court finds that it lacks subject-matter jurisdiction, personal jurisdiction, or both.

The historical context of § 1631’s enactment also suggests that it was intended to address situations in which a court lacks personal jurisdiction but transfer rather than dismissal is in the interest of justice. Until 1948, courts had no statutory transfer authority; a dismissal without prejudice was their only clear recourse when a case was filed in an incorrect or inconvenient forum, which often worked an injustice on plaintiffs who were time-barred from refiling. See Ellis v. Great S.W. Corp., 646 F.2d 1099, 1104 (5th Cir. 1981); Jeremy Jay Butler, Venue Transfer When A Court Lacks Personal Jurisdiction: Where Are Courts Going with 28 U.S.C. § 1631?, 40 Val. U. L. Rev. 789, 843 & n.50 (2006). To address this issue, Congress enacted 28 U.S.C. § 1404(a), which authorized a discretionary transfer when venue was proper but another venue was more convenient, and § 1406(a), which required a transfer when venue was improper but justice nonetheless weighed in favor of transfer to a proper venue rather than dismissal. Transfer in the Federal Courts in the Absence of Personal Jurisdiction, 61 Colum. L. Rev. 902, 902 (1961). The distinction between the two provisions had important consequences for the outcomes of cases because the transferor court’s choice-of-law rule applied following a § 1404(a) transfer, but the transferee court’s choice-of-law rule applied after a § 1406(a) transfer.4 See Butler, supra, at 799-803.

*4 Courts were divided over whether personal jurisdiction over a defendant was required before a transfer could occur under these statutes until the Supreme Court ruled in Goldlawr v. Heiman, 369 U.S. 463, 466, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962), that it was not—at least with respect to a § 1406(a) transfer. The Court reasoned that the § 1406(a) was intended to “remov[e] whatever obstacles may impede an expeditious and orderly adjudication of cases and controversies on their merits,” so that plaintiffs would not be penalized by “ ‘time-consuming and justice-defeating technicalities.’ ” Id. at 466-67, 82 S.Ct. 913 (quoting Internatio-Rotterdam, Inc. v. Thomsen, 218 F.2d 514, 517 (4th Cir. 1955)). Accordingly, the Court held that Congress had made “[t]he language of [§ ]1406(a) … amply broad enough to authorize the transfer of cases, however wrong the plaintiff may have been in filing his case as to venue, whether the court in which it was filed had personal jurisdiction over the defendants or not.” Id. at 466, 82 S.Ct. 913.

Despite the Court’s best efforts, Goldlawr raised more questions than it answered, and an at-least-three-way circuit split arose over whether § 1404(a) or § 1406(a) applied to a transfer conducted without personal jurisdiction where venue was otherwise proper, as well as which choice-of-law rule courts should use following such a transfer—the transferor court’s or the transferee court’s. See Ellis, 646 F.2d at 1104-09 (collecting cases). It was against this backdrop that, only a year after our court described the state of no-personal-jurisdiction federal transfer law as a “nearly hopeless muddle of conflicting reasoning and precedent,” id. at 1106, Congress enacted § 1631 as part of the Federal Courts Improvement Act of 1982, Pub. L. 97-164 § 301(a), 96 Stat 25 (1982). The law appears to be intended to avoid the confusion that was created by §§ 1404(a) and 1406(a)’s focus on whether venue was proper, instead stating that a district court shall transfer the case if there is a lack of jurisdiction and justice so demands regardless of the propriety of the original venue. And the statute seems to be aimed in part at resolving the choice-of-law question that was dividing courts in transferred cases where personal jurisdiction was initially lacking, specifically providing that, following such a transfer, “the action … shall proceed as if it had been filed in … the court to which it is transferred.” Id. Thus, the context of its enactment suggests § 1631 was intended to embrace transfers performed in the absence of not just subject matter jurisdiction, but personal jurisdiction as well.

The decisions of our sister circuits further confirm that the term “jurisdiction” in § 1631 encompasses both personal and subject-matter jurisdiction: The First and Sixth Circuits so held after squarely confronting the question. See Fed. Home Loan Bank of Bos. v. Moody’s Corp., 821 F.3d 102, 114 (1st Cir. 2016), abrogated on other grounds by Lightfoot v. Cendant Mortg. Corp., ––– U.S. ––––, 137 S. Ct. 553, 196 L.Ed.2d 493 (2017); Roman v. Ashcroft, 340 F.3d 314, 328 (6th Cir. 2003). The Ninth, Tenth, and Eleventh Circuits have implicitly reached the same conclusion by either applying § 1631 to a transfer to cure a defect in personal jurisdiction, directing a district court to consider utilizing the provision to rectify a lack of personal jurisdiction, or approving such a transfer after it occurred. See Gray & Co. v. Firstenberg Mach. Co., 913 F.2d 758, 761-62 (9th Cir. 1990) (vacating and remanding to district court to consider transfer under § 1631 to cure lack of personal jurisdiction); Ross v. Colorado Outward Bound Sch., Inc., 822 F.2d 1524, 1527-28 (10th Cir. 1987) (reviewing case that was transferred under § 1631 to Colorado district court after New York district court found it lacked personal jurisdiction). And the Third and Eight Circuits have stated in dicta that a § 1631 transfer would be proper to cure a lack of personal jurisdiction. Johnson v. Woodcock, 444 F.3d 953, 954 n.2 (8th Cir. 2006) (explaining district court could have transferred action under § 1631 to cure lack of personal jurisdiction); Island Insteel Sys., Inc. v. Waters, 296 F.3d 200, 218 n.9 (3d Cir. 2002) (explaining district court would have had authority to transfer action under § 1631 after finding it lacked personal jurisdiction). In fact, though a noted treatise cites the statute’s legislative history in counseling for limiting § 1631 to subject-matter jurisdiction and further states that courts “are rather evenly divided on the subject,” see Wright & Miller, Relation to Other Transfer Provisions, 15 Fed. Prac. & Proc. Juris. § 3842 (4th ed.), our research indicates that only some district courts—and no circuit courts—have actually adopted the view that § 1631 does not apply to a transfer to cure a lack of personal jurisdiction. See, e.g., McTyre v. Broward Gen. Med. Ctr., 749 F. Supp. 102, 105 (D.N.J. 1990); Levy v. Pyramid Co. of Ithaca, 687 F. Supp. 48, 51 (N.D.N.Y. 1988); Nose v. Rementer, 610 F. Supp. 191, 192 n.1 (D. Del. 1985); c.f. Piazza v. Upjohn Co., 570 F. Supp. 5, 8 (M.D. La. 1983) (concluding that § 1631 applied to a transfer when a state court case was removed to the wrong district court because “nothing in the language of the statute, its legislative history or the cases cited … indicate[s] that the Congress intended such a restrictive construction of remedial legislation”).

*5 Thus, it appears no circuit split currently exists on this issue,5 and while we cannot predict how those circuits who have left the question open will ultimately resolve the matter, we decline to now create a split by adopting an overly restrictive reading of § 1631. Because no amount of legislative history can defeat unambiguous statutory text, Bostock v. Clayton County, ––– U.S. ––––, 140 S. Ct. 1731, 1750, 207 L.Ed.2d 218 (2020), we join the weight of circuit authority and conclude that the use of the term “jurisdiction” in § 1631 encompasses both subject-matter and personal jurisdiction. The statute therefore requires a transfer when a district court lacks either type of jurisdiction and the other statutory prerequisites are met.

2.
Because § 1631 required the Texas district court to transfer this case to the Louisiana district court for lack of personal jurisdiction, we next must determine whether the Texas district court in fact did so. In transferring the case to the Louisiana district court, the Texas district court explained: “Because the Court lacks personal jurisdiction over Mabe, and hence venue under § 1391(b)(1) is improper, the Court finds it suitable in the ‘interests of justice’ to transfer the case to the Western District of Louisiana, the district where the accident occurred.” The court cited only 28 U.S.C. § 1406(a) in support of this order. In its initial order denying Mabe’s motion for summary judgment and concluding that Franco’s claim was timely, the Louisiana district court stated that “[w]hile [the magistrate judge] did not mention Section 1631 when he transferred the proceeding to this Court, he did find a want of personal jurisdiction and that the interests of justice warranted the transfer.” The court concluded, therefore, that the magistrate judge in the Texas district court “ordered a Section 1631 transfer in all but name.”

We have previously approved of a district court’s use of § 1406(a) to transfer a case when it lacks personal jurisdiction over a defendant. See Herman v. Cataphora, Inc., 730 F.3d 460, 466 (5th Cir. 2013) (“Where a court finds it lacks personal jurisdiction, it … is authorized under 28 U.S.C. § 1406(a) to transfer the action.”). The question, then, is whether this holding means that § 1631 does not apply to such a transfer, at least when it is not specifically invoked by the transferor court. Ultimately, we agree with the Louisiana district court that § 1631’s provisions apply to the transferred case because the statute establishes a mandatory duty when it is triggered that is not “contradictory or mutually exclusive” of the duty triggered by § 1406(a). Harutyunyan v. Love, No. CV 19-41, 2019 WL 5551901, at *6 (E.D. La. Oct. 28, 2019).

That § 1631 and § 1406(a) can function together rather than as alternative avenues for transfer is apparent from the plain text of the two statutes. Both § 1631 and § 1406(a) use the mandatory “shall … transfer” language, indicating that they both establish a mandatory duty for a court to transfer a case when their respective requirements are met. Compare 28 U.S.C. § 1406(a) (“The district court of a district in which is filed a case laying venue in the wrong division or district shall … if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” (emphasis added)), with 28 U.S.C. § 1631 (“Whenever … there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court … in which the action or appeal could have been brought[.]” (emphasis added)). When, as in this case, there is both a lack of jurisdiction and a lack of proper venue and the interests of justice weigh in favor of transfer rather than dismissal, the plain language of the statutes indicate that a district court can—indeed, must—satisfy its obligations under both statutes through a single use of the transfer power. It is not an either/or question. In fact, were § 1406(a) and § 1631 mutually exclusive options, where a court could use only one or the other to perform a transfer, it would be impossible for a court to comply with both statutes in a case like the present one where the triggering conditions for both statutes are present. Because both statutes are mandatory when their respective preconditions are met, a court would necessarily violate one statute or the other if it could only perform a “§ 1406(a) transfer” or a “§ 1631 transfer” but not both. Further, because § 1631’s requirement about what choice-of-law rule to apply after the transfer is entirely consistent with our court’s interpretation of § 1406(a), see Ellis, 646 F.2d at 1109-10, there is no risk that courts will ever be subject to conflicting obligations from both statutory mandates’ applying in the same case. Both statutes instruct the court to do the same thing, so there is no reason to choose between the two. A transfer conducted in these circumstances is not solely a § 1406(a) transfer or a § 1631 transfer. It is both. See Harutyunyan, 2019 WL 5551901, at *3-6.

*6 In light of § 1631’s mandatory language, our sister circuits have applied the statute to transfers even when the parties did not move under § 1631 and where, as here, the transferring court did not mention § 1631 in its transfer orders. See, e.g., Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir. 1990) (“Although Miller did not move the district court to transfer the case, we have held that a motion to transfer is unnecessary because of the mandatory cast of section 1631’s instructions.” (internal quotation marks, citations, and alteration omitted)); Ross, 822 F.2d at 1527 (10th Cir. 1987) (stating that, where district court lacked personal jurisdiction over the defendant, “[t]he correct course … was to transfer the action pursuant to [§ 1631]”); see also Harutyunyan, 2019 WL 5551901, at *3-6 (analyzing transfer under § 1631, though district court cited only § 1406, because of § 1631’s compulsory language and because “[i]t [was] clear the [transferring c]ourt considered the interests of justice”). Here, the Eastern District of Texas concluded that it lacked jurisdiction over Mabe and that the transfer was in the interests of justice. Therefore, the provisions of § 1631 apply irrespective of the Texas district court’s invoking only § 1406(a).

B.
Finally, we evaluate whether the Louisiana district court, in its second ruling, properly granted summary judgment to Mabe on the basis that Franco’s claim was prescribed. The answer to this question turns entirely on the interplay between 28 U.S.C. § 1631 and Louisiana’s prescription provisions.

Under Louisiana law, delictual actions prescribe one year “from the day injury or damage is sustained.” LA. Civ. Code art. 3492. Prescription is interrupted when the plaintiff “commences action … in a court of competent jurisdiction and venue.” Id. art. 3462. A plaintiff who files in an incompetent court or in an improper venue, however, receives the benefit of interruption only where he or she serves the defendant within the prescriptive period. Id.

However, after § 1631 requires a court to “transfer [an] action … to [a] court … in which the action … could have been brought at the time it was filed or noticed[,]” the statute states that “the action … shall proceed as if it had been filed in … the court to which it is transferred on the date upon which it was actually filed in … the court from which it is transferred.” 28 U.S.C. § 1631 (emphasis added). Section 1631, then, specifies that, after a § 1631 transfer, the suit is treated “as if” it had been commenced in the receiving court and not the transferor court on the day it was originally filed in the transferor court. Thus, if § 1631 applies, Franco’s claim must be treated as if it was filed in the Louisiana federal district court for the Western District—a court of competent jurisdiction—on the day he filed the claim in the Texas district court. Because that day was within the one-year prescription period provided by Louisiana Civil Code Article 3492, prescription will have been interrupted under Louisiana Civil Code Article 3462, rendering Franco’s claim timely.

Mabe argues on appeal that § 1631 is in direct conflict with Louisiana Civil Code Article 3462 and that Article 3462 must prevail under the Erie doctrine because it is a substantive Louisiana law. We do not agree that Erie requires that result. As the Supreme Court has observed, applying Erie “is sometimes a challenging endeavor.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 416, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996). But we need not wade deeply into the murky Erie waters to determine that the doctrine of that case does not interfere with a straightforward application of § 1631 and the Louisiana Civil Code articles.

First, the statute on which the Erie decision was in-part based, the Rules of Decision Act, provides that “[t]he laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.” 28 U.S.C. § 1652 (emphasis added). Interpreting this statute, the Court in Erie declared that “[t]here is no federal general common law.” 304 U.S. at 78, 58 S.Ct. 817 (emphasis added). Thus, the Erie analysis is confined to the kind of judge-made federal practices that might arguably be characterized as common law—practices that have no source in a federal rule or statute. See Hanna, 380 U.S. at 469-70, 85 S.Ct. 1136 (1965) (stating that the respondent in that case was incorrect to assume “that the rule of Erie R. Co. v. Tompkins constitute[d] the appropriate test” because there existed an on-point federal rule that directly controlled the matter at issue). For example, in Guaranty Trust Co. of New York v. York, 326 U.S. 99, 111–12, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), the Court held that Erie mandated that federal courts apply state statutes of limitations to state-law claims heard pursuant to the courts’ diversity jurisdiction and not the federal courts’ own ad hoc notions of equitable timeliness. And in Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 430, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996), the Court determined that Erie required that a federal court hearing a claim based in New York law apply New York’s “deviates materially” standard when determining whether a jury verdict is excessive as opposed to the traditional federal “shocks the conscious” standard, which is wholly judge-made and not rooted in any federal rule or statute.

*7 The Erie doctrine is not implicated when a valid federal rule or statute directly governs the matter at issue. See Hanna, 380 U.S. at 470, 85 S.Ct. 1136 (“The Erie rule has never been invoked to void a Federal Rule.”); Budinich v. Becton Dickinson & Co., 486 U.S. 196, 198, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) (“Although state law generally supplies the rules of decision in federal diversity cases, it does not control the resolution of issues governed by federal statute.” (internal citation omitted)); see also John Hart Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693, 698 (1974). When a valid federal rule or statute is directly controlling, it must be applied, for it preempts any contrary state law, rule, or practice under the normal operation of the Supremacy Clause.6 Budinich, 486 U.S. at 198, 108 S.Ct. 1717.

Instead of the Erie analysis, the only questions regarding § 1631’s applicability are the same questions present in any case involving a federal statute: (1) whether § 1631 falls within the grant of “federal authority contained in Article I” or another portion of the Constitution, Hanna, 380 U.S. at 471, 85 S.Ct. 1136, and (2) whether “the scope of the [statute] in fact is sufficiently broad to control the issue before the Court.”7 Walker, 446 U.S. at 749–50, 100 S.Ct. 1978. As to the first question, Mabe does not argue that § 1631 is unconstitutional, and for good reason. There is little doubt that § 1631 falls within Congress’s authority to prescribe rules for the operation of federal courts. See Hanna, 380 U.S. at 472, 85 S.Ct. 1136 (“[T]he constitutional provision for a federal court system (augmented by the Necessary and Proper Clause) carries with it congressional power to make rules governing the practice and pleading in those courts, which in turn includes a power to regulate matters which, though falling within the uncertain area between substance and procedure, are rationally capable of classification as either.”); Budinich, 486 U.S. at 199, 108 S.Ct. 1717 (holding “enactments ‘rationally capable of classification’ as procedural rules are necessary and proper for carrying into execution the power to establish federal courts vested in Congress by Article III, § 1” (quoting Hanna, 380 U.S. at 472, 85 S.Ct. 1136)).

*8 As to the second question, the plain language of the statute governs when and where Franco’s claim must be considered to have been filed. To regard Franco’s action as filed on any date other than the day it was filed in the Texas district court would be to ignore § 1631’s directive that the date of filing shall be fixed as “the date upon which it was actually filed in … the court from which it is transferred.” And to treat Franco’s claim as if it were filed in an incompetent court would be to write out § 1631’s mandate that “the action or appeal shall proceed as if it had been filed in … the court to which it is transferred.” To omit either § 1631’s date-of-filing, place-of-filing, or manner of proceeding clauses from our reading of the statute would be contrary to the fundamental rules that “ ‘we must construe statutes so as to give meaning to all terms,’ and ‘we cannot accept’ a construction that renders statutory text ‘mere surplusage.’ ” Halliburton, Inc. v. Admin. Review Bd., 771 F.3d 254, 264 (5th Cir. 2014) (quoting In re McBryde, 120 F.3d 519, 525 (5th Cir.1997)).

We accordingly conclude that § 1631, which was specifically designed to protect federal litigants from the forfeiture that could result from a statute of limitations running after a plaintiff’s mistakenly filing an action in a court that lacks jurisdiction when the interests of justice so demand,8 see Hempstead Cty. & Nevada Cty. Project v. E.P.A., 700 F.2d 459, 462-63 & n.4 (8th Cir. 1983) (citing S. Rep. No. 97-275 (1982)), neither runs afoul of the Erie doctrine and the Rules of Decision Act it effectuates nor transgresses constitutional bounds. Section 1631 is therefore the standard against which the District Court for the Western District of Louisiana should have measured whether the action had been timely filed in that court, and its application must necessarily precede that of the Louisiana Civil Code articles.

With this conclusion established, it is clear that Mabe is incorrect to contend that a “direct conflict” exists between § 1631 and Louisiana Civil Code Articles 3462 and 3492. Section 1631 determines when and where a transferred suit is deemed to have been filed, and neither Article 3462 nor Article 3492 says anything about when and where a case should be considered filed. Instead, the Louisiana Civil Code Articles only instruct a court to look to when and where a case was filed—the matters set by § 1631—to determine if the case is timely. In this case, for instance, § 1631 dictates that the case must be treated as if it were commenced in the United States District Court for the Western District of Louisiana on November 22, 2016. Louisiana Civil Code Article 3642 then governs whether, based upon the action being commenced in the Western District of Louisiana on November 22, 2016, prescription was interrupted. Because the Western District of Louisiana is “a court of competent jurisdiction and venue” for this case, Louisiana Civil Code Article 3462 provides that prescription was interrupted on that date. Lastly, Louisiana Civil Code Article 3492 controls whether this interruption of prescription—on November 22, 2016—fell within the prescriptive period for the type of action Franco asserts. Because November 22, 2016, the date Franco is deemed to have filed under § 1631 and the date prescription was interrupted under Article 3462, is less than a year after November 24, 2015, the date Franco allegedly suffered the injury that is the basis of the action, Article 3492 provides that Franco’s claim is timely. By force of the Supremacy Clause, federal courts are bound to see that an action transferred under § 1631 shall proceed as if it had been filed according to the terms of that section, and nothing prevents a court from then giving full force to the Louisiana Civil Code Articles to determine whether the case is timely.9

*9 In sum, § 1631 is an on-point federal statute that does not conflict with the Louisiana Civil Code Articles and that would preempt any contrary Louisiana law, rule, or practice under the Supremacy Clause, and the Erie doctrine provides no reason to avoid the statute’s application.10 That statute therefore can and must govern our determination of when and where Franco is considered to have filed this action. See Budinich, 486 U.S. at 198, 108 S.Ct. 1717 (stating “state law … does not control the resolution of issues governed by federal statute.” (internal citation omitted)). Applying § 1631 to the case at bar, we accept that, as far as we are concerned, Franco is deemed to have filed his suit in the Western District of Louisiana on November 22, 2016, the date he actually filed suit in the Eastern District of Texas. See 28 U.S.C. § 1631. Thus, for our purposes, Franco must be deemed to have filed his claim “in a court of competent jurisdiction and venue” on that date and thereby interrupted the one-year prescriptive period under Louisiana law, see LA. Civ. Code arts. 3492, 3462, rendering his claim timely. The Louisiana district court therefore erred by granting Mabe summary judgment on the basis that Franco’s claim had prescribed.

***

For the foregoing reasons, the judgment of the district court is REVERSED and this case is REMANDED for further proceedings.

EDITH H. JONES, Circuit Judge, dissenting:

Although I concur in Parts I and IIA of the panel opinion, I must respectfully dissent from Part IIB. The majority concludes there that 28 U.S.C. § 1631 respects one half of La. Civ. Code Art. 3462 but ignores the other half, thus depriving state prescription law of its complete meaning. I do not believe that Congress, in enacting Section 1631 to provide a remedy for cases accidentally filed in federal courts lacking jurisdiction, also intended to supersede state statutes of limitations. I would affirm the district court’s dismissal of this case as prescribed.

Plaintiff Franco filed suit against the trucking company in Texas within one year following his accident. However, Texas courts had no jurisdiction over the defendant, and the federal court was faced with dismissing or transferring the suit to Louisiana, a court of proper personal jurisdiction. The court opted to transfer, with what I agree was de facto an order pursuant to Section 1631. Section 1631 provides that a federal court in this circumstance may, in the interest of justice,
“transfer such action… to any other such court…in which the action…could have been brought,…and the action… shall proceed as if it had been filed in…the court to which it is transferred on the date upon which it was actually filed in…the court from which it was transferred”
*10 (emphasis added). In plain terms, this provision construes the date of filing in the transferee court as the date on which the case commenced in the transferor court. See, e.g., Phillips v. Ill. Cent. Gulf R.R., 874 F.2d 984, 987-88 (5th Cir. 1989) (holding that diversity case transferred from Texas to Louisiana was prescribed despite Section 1631’s adoption of the transferor court’s filing date); Ross v. Colo. Outward Bound Sch., Inc., 822 F.2d 1524 (10th Cir. 1987) (case not barred by limitations after Section 1631 transfer). But the federal provision does no more.

The majority opinion holds that Section 1631, which has rarely been construed in the context of a statute like Art. 3462,1 by its terms controls not only the date and place of filing but also the “manner of proceeding” with the case. The “manner of proceeding,” evidently, then superseded state limitations law in this diversity case. I disagree. The statute’s language that the action “shall proceed” as if it had been filed in the transferee court on the date of filing in the transferor court incorporates only that date, not consequences that might follow from that date under state law.

Accordingly, whether the original filing date is within the statute of limitations becomes a matter for the transferee court to decide, and that issue depends in a diversity case on the law of the forum state. The Supreme Court has held that where service of summons was integrally bound with a state court’s statute of limitations, the principles underlying Erie require federal courts to apply local law. As the Court explained, “[w]e can draw no distinction in this case because local law brought the case to an end after, rather than before, suit was started in the federal court….We cannot give it longer life in the federal court than it would have had in the state court without adding something to the cause of action.” Ragan v. Merchants Transf. & Warehouse Co., 337 U.S. 530, 533-34, 69 S. Ct. 1233, 1235, 93 L.Ed. 1520 (1949).

Ragan is on point with this case. As I noted above, the majority relies on half of the applicable statute, La. Civ. Code Art. 3462, which states that the one-year prescription period is “interrupted…when the obligee commences action against the obligor in a court of competent jurisdiction and venue.” But the rest of the provision states, “[i]f action is commenced in an incompetent court or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.” The majority treats Section 1631 “as if” its language, which states that the action shall proceed “as if” it had been filed in the transferee court on the filing date in the transferor court, also settled the question of a valid interruption of prescription under Louisiana law. But applying a retroactive filing date for the suit does not speak to whether the suit is timely under state law. Because Franco did not serve the defendant within the one year prescriptive period in the “incompetent” Texas court, Louisiana Art. 3462 held it barred. In Phillips, supra, a transfer under Section 1631 did not compel continuation of a suit commenced outside the Louisiana one-year prescription period, but in Ross, supra, the opposite result obtained. Section 1631 is neutral as to state law consequences. Governing law under Erie therefore continues to require fealty to the whole of Article 3462.

*11 In Walker v. Armco Steel Corp., the Supreme Court held that Ragan is still good law. 446 U.S. 740, 100 S. Ct. 1978, 64 L.Ed.2d 659 (1980). The Court pointed out that in Hanna [v. Plumer, 380 U.S. 460, 85 S. Ct. 1136, 14 L.Ed.2d 8 (1965)] there was a “direct collision” between federal and state procedural rules, whereas in Ragan and Walker such a clash was avoidable, and the states’ service of process requirements—intimately bound up in the states’ substantive statutes of limitations—had to apply. Id. at 748-49, 100 S. Ct. at 1984-85 (“There is no indication that [Fed. R. Civ. P. 3] was intended to toll a state statute of limitations, much less that it purported to displace state tolling rules for purpose of state statutes of limitations.”).

Applying the reasoning of Walker to this case, I contend, contrary to the majority, that the scope of Section 1631 is not so broad as to countermand Louisiana law’s integrated prescription and service of process limits. La. Civ. Code Arts. 3492, 3462. See id. at 751, 100 S. Ct. at 1985. In fact, the arguments made by the majority here are analogous to those rejected by Walker in considering whether Fed. R. Civ. P. 3 (“An action is commenced by filing a complaint with the court”) superseded Ragan or the integrated Oklahoma statute of limitations/service of process law in a diversity case. It would be odd if Congress, aware of Erie and Ragan, had enacted Section 1631 with an eye to obliterating certain state limitations statutes only in cases where the plaintiff had first filed in a federal court lacking jurisdiction. Yet the result of the majority’s holding is not only to create a split between substantive outcomes in state and federal court in Section 1631 cases, but also a split between results in federal courts based solely on jurisdictional errors in the initial location of filing.2

For these reasons, Franco’s suit had prescribed upon transfer to Louisiana because he served summons on the defendant outside the one-year bar. I respectfully dissent.

All Citations
— F.4th —-, 2021 WL 2849971

Footnotes

1
Federal Rule of Civil Procedure 4(k)(1)(a) provides that “[s]erving a summons or filing a waiver of service establishes personal jurisdiction over a defendant … who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” The Louisiana long-arm statute establishes the jurisdiction of Louisiana courts over nonresidents, and it provides, as relevant here:
A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
….
(3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
La. Stat. Ann. § 13:3201. Ultimately, however, we need not further examine whether a Louisiana court of general jurisdiction—and thus, pursuant to Rule 4(k)(1)(a), the Louisiana federal district court—would have had personal jurisdiction over Mabe had Mabe not consented because Mabe does not challenge it and, unlike with subject-matter jurisdiction, objections to personal jurisdiction may be waived. Shirley v. Maxicare Texas, Inc., 921 F.2d 565, 568 (5th Cir. 1991).

2
Neither party disputes the Texas federal district court’s determination that, under federal law, the Eastern District of Texas was an improper venue without personal jurisdiction over Mabe.

3
Federal courts apply Louisiana prescription law to diversity actions which Louisiana law governs, as “state statutes of limitations are considered substantive for purposes of Erie analysis.” Vincent v. A.C. & S., Inc., 833 F.2d 553, 555 (5th Cir. 1987).

4
Under Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941), a district court must generally apply the choice-of-law approach of the state in which it sits. However, if this rule were applied to require a transferee court to apply the law of the state in which it sits following a transfer under § 1404(a), a defendant could alter the outcome of a properly filed case by strategically transferring it to a venue in a state where the plaintiff’s claim would fail. Accordingly, the Supreme Court has held that courts must apply the transferor court’s choice-of-law rule following a § 1404(a) transfer. Van Dusen v. Barrack, 376 U.S. 612 (1964); Ferens v. John Deere Co., 494 U.S. 516 (1990). Conversely, if the same standard were applied to § 1406(a) transfers that occur after suits are filed in improper venues, a plaintiff could forum-shop to find the most favorable law for a claim without regard to venue, secure in the knowledge that the law would follow the case when it is transferred to the venue where the claim should have been brought in the first place. Courts have thus held that the choice-of-law rule of the transferee court applies following a § 1406(a) transfer. See Ellis, 646 F.2d at 1109-10; Butler, supra, at 803 n.73 (collecting cases).

5
The Fourth and Seventh Circuits have noted but declined to decide the issue, In re Carefirst of Md., Inc., 305 F.3d 253, 257 n.2 (4th Cir. 2002); Carpenter-Lenski v. Ramsey, 2000 WL 287651, at *2 (7th Cir. Mar. 14, 2000); and the Second Circuit has stated in dictum that “the legislative history of section 1631 provides some reason to believe that this section authorizes transfers only to cure lack of subject matter jurisdiction.” SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172, 179 n.9 (2d Cir. 2000).

6
Although the Erie doctrine is intended to reduce the “ ‘inequitable administration’ of the law” by limiting the scenarios in which the outcome of a case will vary based on whether the suit is heard in state or federal court, Walker, 446 U.S. at 753, 100 S.Ct. 1978 (quoting Hanna, 380 U.S. at 468, 85 S.Ct. 1136), this does not obviate federal courts’ obligation to apply valid, on-point federal law. “Erie and its offspring cast no doubt on the long-recognized power of Congress to prescribe housekeeping rules for federal courts even though some of those rules will inevitably differ from comparable state rules.” Hanna, 380 U.S. at 473, 85 S.Ct. 1136. “When, because the plaintiff happens to be a non-resident, [a state] right is enforceable in a federal as well as in a State court, the forms and mode of enforcing the right may at times, naturally enough, vary because the two judicial systems are not identic.” Id. (quoting York, 326 U.S. at 108, 65 S.Ct. 1464). Thus, that Franco’s claim would have been handled differently had it been brought in an incorrect Louisiana state court rather than an incorrect federal court is not a reason to decline to apply § 1631.

7
Because § 1631 is a statute enacted by Congress and not a procedural rule promulgated by the Supreme Court pursuant to the Rules Enabling Act, 28 U.S.C. § 2072, we need not address whether it complies with the statutory limits set by Congress in the Rules Enabling Act. See Hanna, 380 U.S. at 463-64, 85 S.Ct. 1136 (considering whether a Federal Rule of Civil Procedure exceeded the authority delegated to the Supreme Court under the Rules Enabling Act by “abridg[ing], enlarg[ing,] or modify[ing] any substantive right” (quoting 28 U.S.C. § 2072)).

8
This is not a case in which the plaintiff’s initial filing in an incompetent court was after the prescriptive period had already run. That was the scenario presented in Phillips v. Illinois Cent. Gulf R.R., 874 F.2d 984, 988 (5th Cir. 1989), in which we observed “that Congress [did not] intend[ ] that the defendant in every transferred case be deprived of all statute of limitations defenses.” As we noted there, “the curative effects of § … 1631 were intended to apply only in those circumstances where the action would have been timely filed in the transferee court at the time of filing in the transferor court.” Id. Franco satisfies this requirement because, had Franco initially filed his suit in the correct court, prescription on his claim would have unquestionably been interrupted under Louisiana Civil Code articles 3462 and his claim would have been indisputably timely under article 3492. Nor is there any suggestion that Franco’s misfiling was in bad faith. The benefits of § 1631 are available only when the transferor court determines that it is “in the interest of justice” to transfer the case rather than dismiss it, and the transferor court’s discretion serves as a guard against the provision being abused to unfairly prejudice a defendant.

9
Indeed, the Western District of Louisiana concluded that § 1631 and Louisiana Civil Code Articles 3462 and 3492 do not conflict in its second ruling when it determined that Franco’s claim is time-barred. Citing Walker v. Armco Steel Corp., 446 U.S. 740, 753, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980), the court stated that no conflict exists between § 1631 and the Louisiana Civil Code articles. However, the district court then proceeded to completely disregard part of § 1631, failing to treat the case as if it were originally filed in the Western District of Louisiana when applying the Louisiana Civil Code articles. By doing so, the district court misapprehended the central lesson of Walker: when no conflict exists between the identified state law and a federal rule or statute, there is no reason not to apply both the federal and state laws in diversity cases. Id. at 747, 100 S.Ct. 1978 (“[I]n the absence of a[n identified] conflicting state procedure, the Federal Rule would plainly control ….” (citing Hanna, 380 U.S. at 465, 85 S.Ct. 1136)); Id. at 753, 100 S.Ct. 1978 (stating “[t]here is simply no reason why, in the absence of a controlling federal rule,” the state rule should not be applied); see also id. at 752, 100 S.Ct. 1978 (stating that the federal and state laws “can exist side by side, therefore, each controlling its own intended sphere of coverage without conflict.”).

10
Our conclusion that § 1631 must set the applicable date and place of filing is confirmed by the decisions of other courts faced with the same question. The Tenth Circuit addressed this issue in examining the interaction between § 1631 and Colorado’s statute of limitations, explaining that under § 1631, the transferee court “must accept the date on which th[e] action was [brought in a court that lacked personal jurisdiction] … as the filing date in the [transferee] court.” See Ross, 822 F.2d at 1526-28 (emphasis added). And the Eastern District of Louisiana came to the same conclusion when recently considering precisely the laws at issue here. In a very similar case to the one at bar, the defendants argued just as Mabe does now, that the “Plaintiffs’ claim [wa]s prescribed under Louisiana law because Plaintiffs neither filed suit in a court of proper venue nor served a defendant before Louisiana’s one-year prescriptive period ran.” Harutyunyan, 2019 WL 5551901, at *1, *3. The court disagreed, reasoning that “§ 1631 is a controlling and constitutionally enacted federal statute that governs the Court’s determination of when and where Plaintiffs are considered to have filed suit in this case.” Id. at *7. The court explained that “[u]nder § 1631, a transferred case proceeds as if it had been filed in the transferee court from the outset,” and therefore the plaintiffs’ claims were not prescribed. Id.

1
The majority cites one opinion from a district court in Louisiana. One other such case is Manieri v. Layirrison, 1998 WL 458186 (E.D. La. 1998) (holding suit prescribed under Art. 3462 after transfer from court of improper venue under 28 U.S.C. §§ 1404(a) or 1406(a)).

2
If Franco had filed his suit in a Louisiana federal court that possessed personal jurisdiction but proceeded to serve the defendant outside the one-year prescriptive period, Art. 3462 would bar the suit pursuant to Erie principles. Federal Rule 3 would not bail him out. According to the majority’s opinion here, however, if the plaintiff first filed in a court lacking personal jurisdiction and served process after the one-year prescriptive limit, Art. 3462 plays no role, he may have a Section 1631 transfer, and his case will proceed.