     Case: 12-10897       Document: 00512293178         Page: 1     Date Filed: 07/01/2013




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

                                                                            FILED
                                                                            July 1, 2013

                                     No. 12-10897                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



SUSIE M. WARD,

                                                  Plaintiff-Appellant
v.

CNH AMERICA, L.L.C., IND. & CASE NEW HOLLAND AMERICA, L.L.C.,
also known as Ford New Holland; SUN LIFE ASSURANCE COMPANY OF
CANADA,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 3:11-CV-00762-L


Before KING, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Susie M. Ward filed state law claims in Texas state court stemming from
the denial of death benefits under a life insurance policy. The district court
denied Ward leave to amend her pleading and dismissed Ward’s state law causes
of action on summary judgment. Ward appeals only the denial of leave to
amend. We AFFIRM.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                 No. 12-10897

      Ward’s late ex-husband was an employee of CNH America, L.L.C., and
through CNH enrolled in a life insurance plan with Sun Life Assurance
Company of Canada. Although Ward and her husband were married at the time
of enrollment, they were divorced at the time of the husband’s death in 2009.
      CNH and Sun Life removed the action to federal court on the basis of both
diversity and federal question jurisdiction. The federal question jurisdiction was
based on the argument that Ward’s state law claims were completely preempted
by the Employee Retirement Income Security Act, or ERISA. Approximately
eight months later, after the deadline to amend pleadings had passed and one
day prior to the deadline for summary judgment briefing, Ward moved for leave
to amend her complaint to restate her claims under ERISA.
      The magistrate judge recommended that summary judgment on Ward’s
state law claims be granted in favor of CNH and Sun Life and that leave to
amend the pleading be denied. The district court granted summary judgment
in favor of CNH and Sun Life and denied leave to amend. Ward appeals only
from the denial of leave to amend.
                                 DISCUSSION
      Ward first argues that a district court order vacating pretrial deadlines
rendered her motion for leave to amend timely, such that the district court
should have considered the motion under the more liberal standards of Fed. R.
Civ. P. 15(a), rather than Rule 16(b). Absent “extraordinary circumstances,”
arguments not raised to such a degree that the district court has an opportunity
to rule on them are waived on appeal. Vogel v. Veneman, 276 F.3d 729, 733 (5th
Cir. 2002). Ward did not raise this argument before the district court and has
pointed to no extraordinary circumstances justifying that failure. Therefore,
Ward has waived this argument.
      In the alternative, Ward contends the district court erred in denying leave
to amend after the expiration of the scheduling order deadline. “We review for

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                                    No. 12-10897

abuse of discretion the district court’s denial of leave to amend.” S&W Enters.,
L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir. 2003). To
excuse a failure to meet a scheduling order deadline, a movant must show “good
cause.” Id. We review a district court’s refusal to modify a scheduling order for
an abuse of discretion by focusing on these factors: (1) the explanation for lack
of a timely motion, (2) the amendment’s importance, (3) potential prejudicial
impact if allowed, and (4) availability of a continuance to mitigate any prejudice.
Id.
       First, the good cause inquiry “requires the ‘party seeking relief to show
that the deadlines cannot reasonably be met despite the diligence of the party
needing the extension.’” Id. at 535. Ward conceded before the district court and
concedes here that she has “not provided a reasonable explanation for the failure
to timely move for leave to amend” and asserts that this failure was simply “an
innocent mistake.”
       Second, the district court accepted the magistrate judge’s determination
that allowing leave to amend was important.1 Weighing in favor of this finding
is the fact that, as leave to amend was denied in the same order dismissing all
of Ward’s other claims, denial of leave left Ward with “no remaining theory of
recovery.” Meaux Surface Protection, Inc. v. Fogleman, 607 F.3d 161, 167 (5th
Cir. 2010).
       Third, the district court adopted the magistrate judge’s finding of prejudice
to defendants, prejudice by way of imposing “additional and avoidable costs” in
the form of additional discovery and motion practice. See Parish v. Frazier, 195


       1
        Even if Ward were ultimately allowed to amend, it appears – although we do not
decide – that her primary claim for benefits under the plan would not succeed. We have
recognized “ERISA-estoppel as a cognizable theory.” Mello v. Sara Lee Corp., 431 F.3d 440,
444 (5th Cir. 2005). ERISA-estoppel is not permitted, however, on the basis of oral
modifications, apparently the only misrepresentation at issue here. See id. at 446.


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                                 No. 12-10897

F.3d 761, 764 (5th Cir. 1999). In opposition to this finding, Ward argues the
need for additional discovery would be unnecessary or “minimal.” Yet, discovery,
to date, has been minimal and Ward’s proposed amended complaint likely invites
additional discovery and certainly additional motion practice.
      Fourth, the nature of this prejudice does not render it curable by a
continuance.
      District judges control their dockets by setting and enforcing adherence to
reasonable deadlines.    See S&W Enters., L.L.C., 315 F.3d at 537.           Here,
particularly the first factor, but also the third and fourth weigh against Ward.
We have previously affirmed the exercise of a district court’s discretion to deny
leave to amend, when the first and third factors weighed against the movant –
emphasizing the first factor. See Fahim v. Marriott Hotel Servs., Inc., 551 F.3d
344, 348 (5th Cir. 2008). In light of the four-factor inquiry into “good cause” on
the present set of facts, we cannot say that the district court abused its
discretion in refusing to grant leave to amend.
      AFFIRMED.




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