Linda Sapp v. Memorial Hermann Healthcare


UNPUBLISHED OPINION FILED. [10-20340 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 01/19/2011 [10-20340]

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Linda Sapp v. Memorialse: 10-20340 Document: 00511335390 Ca Hermann Healthcare Page: 1 Date Filed: 12/29/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED December 29, 2010 N o . 10-20340 Summary Calendar Lyle W. Cayce Clerk LINDA D. SAPP, P la in t if f A p p e lla n t , v. M E M O R I A L HERMANN HEALTHCARE SYSTEM, 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 for the Southern District of Texas U S D C No. 4:08-CV-3511 B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* L in d a Sapp is a former nurse within the Memorial Hermann Healthcare S y s t e m (Memorial System). Contemporaneously with that employment, Sapp a ls o pursued an advanced nursing degree through Texas Woman's University (T W U ). TWU placed her in a practicum at a hospital in the Memorial System. Sapp has filed two suits stemming from this employment and education. Sapp fir s t filed suit against the Memorial System alleging, inter alia, sexual, racial, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 10-20340 Document: 00511335390 Page: 2 Date Filed: 12/29/2010 No. 10-20340 a g e -b a s e d , and religious discrimination (Sapp I). One manifestation of this d is c r im in a t io n , she claimed, was the Memorial System's not properly crediting h e r for a proposal written during the time of her employment and practicum. Sapp lost that suit, and did not appeal. In the instant case, Sapp again filed suit a g a in s t the Memorial System (Sapp II), alleging that its use of the a fo r e m e n t io n e d proposal constitutes copyright infringement, unfair trade p r a c t ic e s , and unfair competition. The United States District Court for the S o u th e r n District of Texas stayed discovery and granted summary judgment on t h e basis of res judicata. We affirm. I T h e Memorial System is a network of healthcare facilities. Linda Sapp w o r k e d as a nurse within the Memorial System, specifically at its Woodlands F a c ilit y . During that time, she also sought a masters in nursing from TWU. As p a r t of her education, Sapp completed a practicum at a different facility within t h e Memorial System. During that practicum, Sapp worked on a proposal for a n e w system of career advancement at the facility, a so-called "career ladder" s y s t e m . The parties disagree regarding the percentage of the work on this p r o p o s a l done by Sapp and by her preceptor, Julie Segovia. That said, Sapp c o n t e n d s that she has not been properly credited for this proposal. A s a result, Sapp filed suit against the Memorial System in Sapp I. There S a p p claimed, inter alia, sexual, racial, age-based, and religious discrimination, a r g u in g that she had been insufficiently credited for the career ladder proposal. The federal district court granted summary judgment in favor of the Memorial S y s te m . Sapp did not appeal. I n s t e a d , Sapp filed Sapp II--the instant suit. In this suit, Sapp alleges t h a t the Memorial System's use of the career ladder proposal violates a copyright s h e holds on the career ladder proposal and constitutes unfair trade practices a n d unfair competition. The court's scheduling order, dated March 10, 2009, 2 Case: 10-20340 Document: 00511335390 Page: 3 Date Filed: 12/29/2010 No. 10-20340 r e q u ir e d motions to amend the pleadings and add new parties be filed by May 1 , 2009. Both parties moved for summary judgment. Then, on October 12, 2009, S a p p filed for leave to amend her petition to add TWU and Heather Kopecky, a n u r s in g supervisor. The court denied the motion and Sapp's motion for a c o n t in u a n c e pursuant to Rule 56(f). It then stayed discovery pending resolution o f the summary judgment motion. Finally, it granted the Memorial System's m o t io n for summary judgment on the basis of res judicata. It determined, as a r e s u lt , that Sapp's motion for summary judgment was rendered moot. Sapp now a p p e a ls the denial of the motion to amend the complaint, the denial of a c o n t in u a n c e , the suspension of discovery, the grant of summary judgment, and t h e denial of her motion for summary judgment. II We first address the denial of Sapp's motion to amend the complaint. The d is t r ic t court reaffirmed the denial in its final order, and we have jurisdiction to r e v ie w a final order pursuant to 28 U.S.C. 1291. We review decisions of the d is t r ic t courts with respect to amending scheduling orders for abuse of d is c r e t io n .1 S ap p sought to amend her pleading after the period for amendments under t h e scheduling order. She relies upon Foman v. Davis, a case addressing Federal R u le of Civil Procedure 15(a).2 Yet the rule that is actually applicable here is R u le 16(b). We have stated that Rule 16(b) governs amendment of pleadings a ft e r a scheduling order deadline passes.3 After that deadline, the "more liberal s t a n d a r d of Rule 15(a) appl[ies]" only if the movant demonstrates good cause for 1 Meaux Surface Prot., Inc. v. Fogleman, 607 F.3d 161, 167 (5th Cir. 2010). 371 U.S. 178, 182 (1962). S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir. 2 3 2003). 3 Case: 10-20340 Document: 00511335390 Page: 4 Date Filed: 12/29/2010 No. 10-20340 t h e modification of the schedule.4 Here a scheduling order had previously been e n te r e d . The motion to amend came after the expiration of the time provided in t h e scheduling order. Thus, the relevant rule is Rule 16(b), which permits m o d ific a t io n "only for good cause and with the judge's consent."5 I n considering whether the district court abused its discretion, this court h a s noted a four-factor test designed to guide the district court's analysis: "(1) t h e explanation for the failure to timely move for leave to amend; (2) the im p o r t a n c e of the amendment; (3) potential prejudice in allowing the a m e n d m e n t ; and (4) the availability of a continuance to cure such prejudice." 6 W e have recently reaffirmed that owing to "`the importance of the pre-trial order in achieving efficacy and expeditiousness upon trial in the district court, a p p e lla te courts are hesitant to interfere with the court's discretion in creating, e n fo r c in g , and modifying such orders.'"7 No single factor is dispositive, nor must a ll the factors be present.8 H e r e the lower court denied the motion for leave to file an amended p le a d in g , but did so "without prejudice to being reurged, if appropriate, following a ruling on the pending motions for summary judgment." The court also o b s e r v e d that Sapp had filed her own motion for summary judgment, p r e s u m a b ly indicating the lack of importance to her of amending her claims. Moreover, in denying the motion the lower court explicitly noted the Memorial S y s te m 's pending res judicata summary judgment motion--indicating a concern 4 Id. FED. R. CIV. P. 16(b). Meaux Surface Prot., Inc., 607 F.3d at 167. Id. (quoting Quick Techs., Inc. v. Sage Group P.L.C., 313 F.3d 338, 345 (5th Cir. 5 6 7 2002)). 8 S&W Enters., L.L.C., 315 F.3d at 536-37. 4 Case: 10-20340 Document: 00511335390 Page: 5 Date Filed: 12/29/2010 No. 10-20340 w it h the prejudice and delay that allowing amendment could bring to a party p o t e n t ia lly on the verge of concluding its involvement in the litigation. In light o f the foregoing, denying this motion was not an abuse of discretion. III W e review the court's denial of Sapp's Rule 56(f) motion--to suspend s u m m a r y judgment pending discovery--for abuse of discretion.9 Rule 56(f) has b e e n recodified "without substantial change" as Rule 56(d).10 T h e rule allows for a delay in summary judgment to facilitate discovery w h e n the non-movant cannot adequately oppose summary judgment at that t im e .1 1 A motion under the rule "must set forth a plausible basis for believing t h a t specified facts, susceptible of collection within a reasonable time frame, p r o b a b ly exist and indicate how the emergent facts, if adduced, will influence the o u tc o m e of the pending summary judgment motion."1 2 Here Sapp argued that s h e required more time for discovery, specifically seeking depositions of Rebecca K r e p p e r , a TWU dean, and Heather Kopecky, a faculty member at TWU who w r o t e Sapp a commendation letter for her role in authoring the career ladder p r o p o s a l. While it is true that these motions are "broadly favored and should be lib e r a lly granted,"1 3 here summary judgment was to be based solely on res ju d ic a t a . As we have said, "[i]f it appears that further discovery will not provide e v id e n c e creating a genuine issue of material fact, the district court may grant 9 Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010). FED. R. CIV. P. 56(d) 2010 amend. cmt. (2010). Raby, 600 F.3d at 561. 10 11 Id. (citing C.B. Trucking, Inc. v. Waste Mgmt. Inc., 137 F.3d 41, 44 (1st Cir. 1998)) (internal quotation marks omitted). Id. (citing Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006)) (internal quotation marks omitted). 13 12 5 Case: 10-20340 Document: 00511335390 Page: 6 Date Filed: 12/29/2010 No. 10-20340 s u m m a r y judgment."1 4 The discovery Sapp purported to need was designed to p r o v e or disprove the merits of her claim by elucidating the manner in which the p r o p o s a l came into use. That, however, was not responsive to the pending s u m m a r y judgment motion--which turned on whether the issue had been p r e v io u s ly litigated in Sapp I. Thus, it was not an abuse of discretion to deny t h e motion. IV W e review a decision to stay discovery pending a dispositive motion for a b u s e of discretion.1 5 The Memorial System requested that the court stay d is c o v e r y pending the outcome of the summary judgment motion and quash the u p c o m in g deposition of Kopecky. The court granted the motion. We have p r e v io u s ly held that where discovery would not be useful to the resolution of a p e n d in g summary judgment motion presenting a question of law, it is not an a b u s e of discretion to grant such a motion.1 6 The res judicata effect of a previous ju d g m e n t is, in fact, a question of law.1 7 As we have previously said, it would be " w a s t e fu l to allow discovery on all issues raised in a broad complaint when, for e x a m p le , the case will not reach" a determination on those merits.1 8 As d is c u s s e d above, the discovery here went to the underlying merits and not to the p e n d in g summary judgment question of res judicata. Therefore, it was not an a b u s e of discretion to stay discovery. Id. (citing Access Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d 694, 720 (5th Cir. 1999)) (internal quotation marks omitted). 15 14 Brazos Valley Coal. for Life, Inc. v. City of Bryan, Tex., 421 F.3d 314, 327 (5th Cir. 2005). 16 Id. Oreck Direct, L.L.C. v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009). Corwin v. Marney, Orton Invs., 843 F.2d 194, 200 (5th Cir. 1988). 17 18 6 Case: 10-20340 Document: 00511335390 Page: 7 Date Filed: 12/29/2010 No. 10-20340 V We review the grant of summary judgment de novo.1 9 Though the federal r u le pertaining to summary judgment has been amended in the period of p e n d e n c y for this appeal, the change does not affect the substance of the rule.20 T h e rule permits the grant of summary judgment "if the movant shows that t h e r e is no genuine dispute as to any material fact and the movant is entitled to ju d g m e n t as a matter of law."2 1 Here the district court granted summary ju d g m e n t on the basis of res judicata. "Under res judicata, a final judgment on t h e merits of an action precludes the parties or their privies from relitigating is s u e s that were or could have been raised in that action."2 2 The res judicata e ffe c t of a previous judgment is also reviewed de novo.2 3 W e have developed a four-part test, each prong of which must be met for r e s judicata to bar an action: (1) the parties must be identical in the two actions; (2) the prior ju d g m e n t must have been rendered by a court of competent ju r is d ic t io n ; (3) there must be a final judgment on the merits; and (4 ) the same claim or cause of action must be involved in both cases.2 4 T h e r e is no dispute with respect to factors two and three. The district court in S a p p I had jurisdiction to issue a final summary judgment, and it did. With r e s p e c t to the first factor, despite arguments designed to cloud the issue, the 19 Oreck Direct, L.L.C., 560 F.3d at 401. FED. R. CIV. P. 56 2010 amend. cmt. (2010). FED. R. CIV. P. 56(a) (2010). Allen v. McCurry, 449 U.S. 90, 95 (1980). Oreck Direct, L.L.C., 560 F.3d at 401. 20 21 22 23 Id. (citing In re Ark-La-Tex Timber Co., 482 F.3d 319, 330 (5th Cir. 2007)) (internal quotation marks omitted). 24 7 Case: 10-20340 Document: 00511335390 Page: 8 Date Filed: 12/29/2010 No. 10-20340 M e m o r ia l System is the named defendant in both suits. Thus the parties are id e n tica l. I n evaluating the fourth factor, the district court employed the so-called " t r a n s a c t io n a l test." We have recently reaffirmed that the transactional test is a p p r o p r ia t e in considering whether suits involve the same claim or cause of a c t i o n .2 5 It considers whether the two suits involve "the same nucleus of o p e r a t iv e facts."2 6 This inquiry focuses upon "whether the facts are related in t im e , space, origin, or motivation; whether they form a convenient trial unit; a n d whether their treatment as a unit conforms to the parties' expectations or b u s in e s s understanding or usage." 27 H e r e Sapp's two suits arise from a single nucleus of operative fact: Sapp w o r k e d on a proposal, and believes that she was not properly rewarded for it. In Sapp I, Sapp sought to gain her purportedly deserved rewards through one le g a l avenue. Upon her loss in Sapp I, Sapp brought a second suit alleging an a lt e r n a t iv e theory of recovery, but seeking the same rewards she could not s e c u r e in Sapp I. As we have said, "a single cause of action or claim cannot be `s p lit ' by advancing one part in an initial suit and attempting to reserve another p a r t for a later suit."2 8 Therefore, res judicata bars Sapp II, and summary ju d g m e n t was properly granted. N o t a b ly , because it was not an abuse of discretion to deny leave to amend, S a p p 's argument that "[j]udicial [e]stoppel defeats [r]es [j]udicata if [the] [m ]o tio n to [a]mend is allowed" is unavailing. Similarly, Sapp argues to this 25 Id. at 402-03. Id. at 402 (citations omitted). 26 Id. (citing Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 313 (5th Cir. 2004)) (internal quotation marks and brackets omitted). 28 27 Tex. Emp'rs' Ins. Assoc. v. Jackson, 862 F.2d 491, 501 (5th Cir. 1988) (en banc). 8 Case: 10-20340 Document: 00511335390 Page: 9 Date Filed: 12/29/2010 No. 10-20340 c o u r t that there is a continuing harm that cannot be settled by res judicata. She does so without citation and without having raised the issue in the district c o u r t. Both independently constitute waiver of an issue.2 9 Similarly, the single s e n te n c e , lacking citation and sandwiched between otherwise unrelated a r g u m e n t s , averring that Sapp could not bring her copyright claim in c o n ju n c t io n with her Sapp I claims constitutes waiver.30 A s the district court properly granted summary judgment, Sapp's motion fo r summary judgment remains moot. * * * F o r the foregoing reasons, we AFFIRM the order of the district court. L & A Contracting Co. v. S. Concrete Servs., Inc., 17 F.3d 106, 113 (5th Cir. 1994); Little v. Liquid Air Corp., 37 F.3d 1069, 1071 n.1 (5th Cir. 1994) (en banc) (per curiam). 30 29 L & A Contracting Co., 17 F.3d at 113. 9

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