Peters vs. Lowery, (5th Cir. 2003)
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* Pursuant to 5 T H C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit FILED January 20, 1999 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 97-30876 Summary Calendar LISA ALACK PETERS; MICHELLE WINTERSTEIN, Through her next friend, Lisa Alack Peters; JOSEPH WINTERSTEIN, Plaintiffs-Appellants, versus CONNIE LOWRY, also known as Connie Lowe ry Pea, Juvenile Officer, Tangipahoa Parish Sheriff's Office, Individually and in her official capacity; J. EDWARD LAYRISSON, Sheriff, Tangipahoa Parish Sheriff's Office, Individually and in his official capacity; CRAIG ANDREWS, Office of Community Services Worker, Individually and in his official capacity; DALE FRAZIER, Office of Community Services Supervisor, Individually and in his official capacity; THOMAS HALL, Offic e of Community Services Supervisor, Individually and in his official capacity, UNIDENTIFIED PARTY, Defendants-Appellees. Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 94-CV-2738 January 20, 1999 Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges PER CURIAM: * On August 19, 1994, the plaintiffs brought a suit under § 1983 and various state laws against the defendants arising from allegations of violations of the plaintiffsÂ’ civil rights during an investigation of child abuse. The defendants filed a 12(b)(6) motion which was granted in part and denied in part. In that order, dated September 7, 1995, the plaintiffs were instructed to amend their complaint to provide further facts addressing the officersÂ’ liability; no deadline was provided. On February 8, 1996, a minute entry provided that all amended pleadings were to be filed by March 22, 1996.
On June 11, 1996, the defendant s filed motions for summary judgment based on qualified immunity. On July 31, 1996, the plaintiffs filed a motion to amend their complaint. On June 24, 1997, the district court granted the defendants’ moti ons for summary judgment, dismissing all federal claims with prejudice and all state cla ims without prejudice. * * At the same time, the district court denied plaintiffs’ motion to file the first amended complaint because it was untimely and futile. The district court explained that the plaintiffs’ motion to fi le the first amended complaint “came eleven months after the court had ordered amendment, four months after the deadline for amendments and a month after the interlocutory appeal was filed (thus the inability of the Court of Appeals to co nsider it).” P eters v. Lowery , No. CA-94-2738, (E.D.La. July 21, 1997).
The plaintiffs argue that the district court abus ed it discretion by denying their motion to amend their complaint. The plaintiffs do not challenge the district courtÂ’s entry of summary judgment for the defendants, but instead allege that if they had been allowed to amend their complaint they could have advanced specific facts against the defendantsÂ’ claim of qualified immunity through additional discovery. Once a motion for summary judgment has been filed, a nonmoving party may seek a continuance if he believes that additional discovery is necessary to respond to the motion. Fed.R.Civ.P. 56(f); King v. Dogan , 31 F.3d 344, 346 (5th Cir. 1994). Yet, the plaintiffs never sought a continuance for additional disc overy and failed to show that discovery was necessary to establish any issue of material fact that would preclude summary judgment. As part of its discretion in determining whether to allow a leave to amend, the trial court may consider such factors as undue delay, bad faith or dilatory motive on the part of the mova nt, repeated failure to cure deficienci es by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, and futility of the amendment. W imm v. Jack Eckerd Corp. , 3 F.3d 137, 139 (5th Cir. 1993). In light of the late date at which the plaintiffs moved to amend their complaint and the fact that plaintiffs did not seek a continuance for additional discovery after the defe ndants filed motions for summary judgment, the district courtÂ’ s denial of the plaintiffsÂ’ motion to amend was not an abuse of discretion. AFFIRMED.
* * The hearing on the summary judgment motions was delayed over one year by an interlocutory appeal relating to discovery disputes
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This document cites
- U.S. Court of Appeals for the Fifth Circuit - Hattie Ray King, Plaintiff-Appellant, v. Ellett Dogan, Etc., Et Al., Defendants, Jimmy Dees, Etc., Defendants-Appellees., 31 F.3d 344 (5th Cir. 1994)
- U.S. Court of Appeals for the Fifth Circuit - Sabrina K. Wimm, Individually and as Representative of the Estate of Arron Paul Speer, Deceased, and Paul Speer, Plaintiffs-Appellants, v. Jack Eckerd Corp., Et Al., Defendants, Jack Eckerd Corp. and Eckerd Drugs of Texas, Defendants-Appellees., 3 F.3d 137 (5th Cir. 1993)
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