HATCHETT, Circuit Judge:
This appeal challenges the district court's granting of summary judgment in favor of Reynolds Securities, Inc., which dismissed Murray Stein's federal claims and pendent state action. We affirm the dismissal of Stein's federal counts and remand Stein's pendent state action for further consideration by the district court.
In 1976, Murray Stein filed a complaint against Reynolds Securities, Inc., alleging five federal claims and one pendent state claim. In 1979, the district court dismissed Stein's suit for failure to prosecute, and Stein filed a new complaint. The district court subsequently granted summary judgment in favor of Reynolds. The district court found that the federal claims were barred by the statute of limitations. Because all federal claims were dismissed, the district court dismissed the pendent state claim without prejudice to the plaintiff's right to pursue his claim in state court. The state period of limitations, however, had run during pendency of this action.
We must determine whether Stein's first filing, which was subsequently dismissed for failure to prosecute, tolled the federal period of limitations. We must also determine whether a federal court may retain jurisdiction over a pendent state action which has been barred by the state period of limitations even though all federal claims have been dismissed.
Stein contends that the period of limitations was tolled by the filing of his
Stein next contends that the dismissal of all federal claims does not destroy pendent jurisdiction of state claims where the state claim would be barred in state court because of the running of the period of limitations. The Fifth Circuit has addressed this question and held, "`That a plaintiff's state law claims will be timed-barred if dismissed is certainly a factor, if not a determinative factor, a district court should consider in deciding whether to maintain jurisdiction over pendent state claims ....'" Henson v. Columbus Bank and Trust Co., 651 F.2d 320, 325 (5th Cir. 1981) (quoting Pharo v. Smith, 625 F.2d 1226, 1227 (5th Cir. 1980)). The record before this court is silent as to whether the district court was aware that Stein's state claim was barred by the state period of limitations. We therefore remand as to the state claim, Count II of the complaint, for further consideration by the district court.
Because we find that a suit which is subsequently dismissed without prejudice for failure to prosecute is not considered to have tolled the period of limitations, we affirm the district court's granting of summary judgment as to Stein's federal claims. Because we find that a federal court may retain pendent jurisdiction over a state claim which is barred by the state period of limitations, even though all federal claims have been dismissed, we remand as to Count II of the complaint.
AFFIRMED IN PART REMANDED IN PART.