Amandine Garcia v. Unit Petroleum Company

Filing

UNPUBLISHED OPINION FILED. [10-20222 Affirmed ] Judge: EHJ , Judge: EGJ , Judge: LHS Mandate pull date is 10/19/2010 [10-20222]

Amandine Garcia v. Unit Petroleum Company

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Case: 10-20222

Document: 00511246541

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Date Filed: 09/28/2010

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
September 28, 2010 N o . 10-20222 S u m m a r y Calendar Lyle W. Cayce Clerk

A M A N D I N E GARCIA, Individually and on the Estate of Jorge Vargas and as N e x t Friend of MJV and MJV both minors, P la in t if f -A p p e lla n t v. U N IT DRILLING COMPANY, D e fe n d a n t -A p p e lle e

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CV-01380

B e fo r e JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges. P E R CURIAM:* P la in t iff Amandine Garcia appeals the district court's order (1) denying h e r motion for leave to amend her complaint, and (2) granting defendant Unit D r illin g Company's ("UDC's") motion for judgment on the pleadings. We

c o n c lu d e that the district court properly granted UDC judgment on the

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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Dockets.Justia.com

Case: 10-20222

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Date Filed: 09/28/2010

No. 10-20222 p l e a d in g s , and that the district court did not abuse its discretion in denying G a r c ia 's motion for leave to amend. I. BACKGROUND G a r c ia 's common-law husband, Jorge Vargas, was killed in a single-car c r a s h on July 15, 2008. Garcia's sparse complaint ­ just eight sentences of fa c t u a l allegations ­ indicates that UDC employed Vargas and "sent him to v a r io u s job sites in different states." A medical examiner determined that his b lo o d -a lc o h o l content at the time of death was 0.12%, well above the legal limit. Garcia's complaint states: [Vargas] should not have been driving. Worse, it is apparent from t h e early time of the accident as well as its temporal proximity to h is leaving the drilling site, that Jorge Vargas has been given a lc o h o l to drink while working, yet sent to drive home alone despite h is severe intoxication. The complaint makes no further factual allegations. Garcia filed her complaint in state court on March 16, 2009. Several w e e k s later, UDC filed an answer and removed the case to federal court.1 The d is t r ic t court issued a pretrial order on August 26, 2009, mandating that all a m e n d m e n t s to pleadings be filed no later than December 1, 2009. The pretrial o r d e r also called for discovery to be completed no later than April 30, 2010. O n February 12, 2010, UDC filed its motion to dismiss and motion for ju d g m e n t on the pleadings. On March 5, 2010, Garcia filed her opposition m e m o r a n d u m . She also filed a motion for leave to amend her complaint, three m o n th s after the deadline to amend pleadings. Garcia sought to amend to: (1 ) correct the names of the parties to this lawsuit; (2) set forth [her] a lle g a t io n s under the Federal Rules of Civil Procedure; (3) add a lleg a tion s concerning Oklahoma law; (4) add allegations concerning

The original complaint listed two additional defendants that were later terminated from the lawsuit pursuant to a joint stipulation.

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No. 10-20222 d e fe n d a n t 's knowledge of decedent's intoxication; and (5) add a lle g a t io n s concerning the degree of control exercised by defendant o v e r decedent. T h e district court denied Garcia's motion for leave to amend and granted UDC's m o t io n for judgment on the pleadings. II. DISCUSSION " W e review de novo motions to dismiss and motions for judgment on the p le a d in g s . The standard is the same for both. Viewing the facts as pled in the lig h t most favorable to the nonmovant, a motion to dismiss or for a judgment on t h e pleadings should not be granted if a complaint provides enough facts to state a claim to relief that is plausible on its face. Moreover, the complaint must a lle g e more than labels and conclusions, a formulaic recitation of the elements o f a cause of action will not do, and factual allegations must be enough to raise a right to relief about the speculative level." Jebaco, Inc. v. Harrah's Operating C o ., Inc., 587 F.3d 314, 318 (5th Cir. 2009) (internal citations and quotations o m itte d ). " W e review for abuse of discretion the district court's denial of leave to a m e n d ." S&W Enters. v. Southtrust Bank of Ala., 315 F. 3d 533, 535 (5th Cir. 2 0 0 3 ). A. M o t i o n for Judgment on the Pleadings

W e review first the district court's order granting UDC judgment on the p le a d in g s . The district court concluded that Garcia's sparse complaint failed to la y out the elements of her claims, much less facts that would make her claims p la u s ib le . We agree. U n d e r Texas law, Garcia's claims of negligence and gross negligence r e q u ir e proof that Vargas's employer exercised control over Vargas and that the e m p lo y e r failed to act in a reasonably prudent manner "to prevent the employee fr o m causing an unreasonable risk of harm to others." Otis Eng'g Corp. v. Clark,

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No. 10-20222 6 6 8 S.W.2d 307, 310 (Tex. 1983). Garcia's complaint plainly fails to allege that V a r g a s 's employer exercised control over Vargas while Vargas was drinking. Moreover, if Vargas's employer carried any duty, it would be to prevent Vargas fr o m causing an unreasonable risk of harm to others. See id. As the district c o u r t noted, Texas courts have refused to extend the Otis duty to preventing in c a p a c it a t e d persons from harming themselves. See Verdeur v. King

H o s p ita lity Corp., 872 S.W.2d 300, 302 (Tex. Ct. App. 1994) ("[Otis] does not c r e a t e a duty which requires an employer to protect an intoxicated employee fr o m injuring herself."). Likewise, Garcia's claims under the Texas Dram Shop Act, TEX. ALCO. B EV. CODE ANN. § 2.02 (West 2007), similarly fail to allege that Vargas's e m p lo y e r was a provider of alcoholic beverages within the meaning of § 2.02. B. M o t i o n for Leave to Amend

W e next review the district court's denial of Garcia's motion for leave to a m e n d . As a general matter, courts should grant leave to amend pleadings " fr e e ly . . . when justice so requires." FED. R. CIV. P. 15(a). Normally,"leave to a m e n d is to be granted liberally unless the movant has acted in bad faith or with a dilatory motive, granting the motion would cause prejudice, or amendment w o u ld be futile." Jebaco Inc. v. Harrah's Operating Co. Inc., 587 F.3d 314, 322 (5 t h Cir. 2009). H o w e v e r , when a pretrial scheduling order's deadline to amend has e x p ir e d , as was the case here, amendments are governed by the more strict Rule 1 6 standard rather than the liberal Rule 15 standard. S&W Enters. v.

S o u th tr u s t Bank of Ala., 315 F. 3d 533, 536 (5th Cir. 2003). Under Rule 16, late a m e n d m e n t s may be accepted "only for good cause and with the judge's consent." FED. R. CIV. P. 16(b). In the Fifth Circuit, "the good cause standard requires the p a r ty seeking relief to show that the deadlines cannot reasonably be met despite

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No. 10-20222 t h e diligence of the party needing the extension." q u o t a t io n marks omitted). W e have articulated four factors relevant to determining good cause: (1) the explanation for the failure to timely move for leave to amend; (2 ) the importance of the amendment; (3) potential prejudice in a llo w in g the amendment; and (4) the availability of a continuance t o cure such prejudice. S w . Bell Tel. Co. v. City of El Paso, 346 F. 3d 541, 546-47 (5th Cir. 2003). A t no time has Garcia offered an explanation for her nearly year-long d e la y in amending her pleadings, nor has she proffered an excuse for missing the D e c e m b e r 1, 2009 amendment deadline. Further, the district court found that e v e n if Garcia were allowed to amend her complaint in the five ways she d e s c r ib e d , the outcome would be no different: "None of these proposed Id. at 535 (citation and

a m e n d m e n t s change the Court's determination that Garcia's claims against Unit D r illin g fail as a matter of law." Allowing Garcia to add Oklahoma law claims would require UDC to r e s p o n d to additional discovery. As the district court noted, "[i]n the face of an im p e n d in g discovery-close date and dispositive-motion cut-off date, requiring U n it Drilling to defend against new factual allegations would be unfair and p r e ju d ic ia l." F in a lly , UDC's motion for judgment on the pleadings hardly came as a s u r p r is e to Garcia. UDC raised these deficiencies as an affirmative defense on M a y 6, 2009: "Plaintiffs' Original Petition fails to state a cause of action upon w h ic h relief may be granted for negligence and gross negligence against D e fe n d a n ts for violation of the Texas Dram Shop Act." Thus, Garcia was on n o tic e seven months before the amendment deadline that UDC believed her c o m p la in t to be deficient. Garcia had ample time to amend, and such

a m e n d m e n t s would have been allowed almost as a matter of course if done b e fo r e December 1, 2009. 5

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No. 10-20222 W h ile some district courts might have reached a different conclusion on t h e belated motion for leave to amend, we review only for abuse of discretion, a n d we find none. Garcia has failed to show that she could not meet the court's d e a d lin e "despite [her] diligence," S&W Enters., 315 F. 3d at 535. We see no c o m p e llin g reason to overturn the "sound discretion of the district court" in this in s t a n c e . Nance, 817 F.2d at 1180. The judgment of the district court is

A F F IR M E D .

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