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

                                                                            FILED
                                                                         December 5, 2008

                                     No. 08-50227                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


CHRISTOPHER LANDAVAZO

                                                  Plaintiff - Appellant
v.

THE TORO COMPANY

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:06-CV-356


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Christopher Landavazo (“Landavazo”) appeals from the
district court’s final judgment dismissing Landavazo’s claims against his former
employer, The Toro Company (“Toro”), under 42 U.S.C. § 1981 and the Texas
Labor Code. Landavazo argues that the district court erred in dismissing
Landavazo’s suit sua sponte for failure to state a claim and in denying




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 08-50227

Landavazo’s motion for leave to amend his complaint. For the following reasons,
we AFFIRM.

I.    Factual and Procedural Background
      Landavazo, represented by counsel, filed this action seeking damages from
Toro for alleged violations of the Fair Labor Standards Act (“FLSA”). The
factual basis of the original complaint states in toto the following:
             Mr. Landavazo was a Production Manager with Defendant.
             Mr. Landavazo was terminated on or about December 9, 2004.
      Defendant purportedly terminated his employment because Plaintiff
      supposedly claimed unworked overtime. This purported reason is
      false, pretextual and a mere excuse for unlawful motivations. The
      real reasons Mr. Landavazo was discriminated and retaliated
      against in the terms, conditions and privileges of his employment is
      because of his race, color, national origin and or ethnicity and or in
      violation of the Fair Labor Standards Act, Title 29, United States
      Code, Section 201, et seq., 29 U.S.C. § 201 et seq.

Landavazo’s prayer for relief also sought damages under Title VII, 42 U.S.C. §
1981, and the Texas Labor Code, although he did not specifically allege
violations of those statutes in the complaint.
      Almost one year after the original complaint was filed, Toro filed a motion
for summary judgment. In its motion, Toro argued that Landavazo failed to
state a claim under the FLSA because he was a salaried supervisor exempt from
the overtime payment requirements of the FLSA and there was no evidence that
he engaged in any protected activity. As to any claims under Title VII, § 1981,
and the Texas Labor Code, Toro stated that “[o]ut of an abundance of caution but
maintaining its position that no cause of action is pled under any of these
statutes, [Toro] submits that, in any event, there is no evidence to support any
claim of national origin or race discrimination.”
      In response to Toro’s motion for summary judgment, Landavazo conceded
that Toro was entitled to summary judgment on his FLSA and Title VII claims,


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and the district court granted Toro’s motion for summary judgment on those
claims. Landavazo argued, however, that the evidence precluded summary
judgment on the discrimination claims under § 1981 and the Texas Labor Code.
The district court did not review the § 1981 and Texas Labor Code claims under
a summary judgment standard, but rather, the court dismissed those claims for
failure to comport with the pleading standards set forth in Federal Rule of Civil
Procedure 8(a)(2).
      Landavazo filed a motion for reconsideration, contending that he
sufficiently pled his claims and the court erred in dismissing the case sua sponte
without allowing him an opportunity to amend. Landavazo sought leave to
amend the complaint and attached the proposed amended complaint to the
motion for reconsideration.      The district court denied the motion for
reconsideration, stating that
      Plaintiff’s Petition does not properly plead Plaintiff’s putative
      Section 1981 and Texas Labor Code claims. . . . Plaintiff’s Amended
      Complaint still does not contain any factual allegations that
      properly state his putative Section 1981 and Texas Labor Code
      [c]laims. . . . The Court finds Plaintiff’s Amended Complaint does
      not cure his original Petition’s defects and therefore concludes it is
      not unjust to deny Plaintiff’s Motion for Reconsideration and his
      request for leave to amend his Petition.
Landavazo appeals, challenging the dismissal of the § 1981 and Texas Labor
Code claims and the denial of leave to file an amended complaint.

II.   Discussion
      A. Sua Sponte Dismissal
      Landavazo emphasizes that the district court dismissed his suit sua
sponte. While Toro did not file a separate motion to dismiss, its motion for
summary judgment clearly “maintain[ed] that no cause of action [was] pled




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under” § 1981 and the Texas Labor Code.1                Notably, Toro made no legal
arguments regarding the pleading deficiency, but Landavazo simply ignored the
argument that was raised about the pleading deficiency. The district court
considered Toro’s pleading deficiency argument, stating that “Defendant asserts
that Plaintiff fails to properly plead any cause of action under Title VII, Section
1981, or the Texas Labor Code.” The record demonstrates that the district court
did not raise the pleading deficiency issue sua sponte, although it did not have
the benefit of any legal arguments on the issue.
       Even assuming arguendo that the district court raised the issue sua
sponte, it has authority to consider the sufficiency of a complaint on its own
initiative. See Carroll v. Fort James Corp., 470 F.3d 1171, 1177 (5th Cir. 2006)
(“As a general rule, a district court may dismiss a complaint on its own for
failure to state a claim.”) (citation omitted).
       B. Failure to State a Claim

       Federal Rule of Civil Procedure 8(a) provides that “[a] pleading that states
a claim for relief must contain . . . a short and plain statement of the claim
showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). We review
dismissal of a complaint for failure to state a claim de novo. Lindquist v. City of
Pasadena, Tex., 525 F.3d 383, 386 (5th Cir. 2008) (citation omitted). We accept
all well-pleaded facts as true, “viewing them in the light most favorable to the
plaintiff. Id. (citation omitted). The plaintiff must allege “enough facts to state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 127 S.
Ct. 1955, 1974 (2007). “Factual allegations must be enough to raise a right to
relief above the speculative level, on the assumption that all the allegations in




       1
         Toro also argued that no cause of action was pled under Title VII. Landavazo’s Title
VII claim is not an issue on appeal.

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the complaint are true (even if doubtful in fact).” Id. at 1965 (internal citation
and footnote omitted).

      We set out the entire factual allegations of Landavazo’s original pleading
above. The only factual allegations in the entire pleading are Landavazo’s job
title, the date of termination, and the purported reason for termination. The
remaining allegations either deny the purported reason for the termination
without any affirmative allegations or state legal conclusions. Specifically,
Landavazo’s allegation that the “purported reason is false, pretextual and a
mere excuse for unlawful motivations” is, at most, a conclusory allegation and
provides no notice of Toro’s acts that gives rise to this action.         Further,
Landavazo’s statement that “[t]he real reasons Mr. Landavazo was
discriminated and retaliated against in the terms, conditions and privileges of
his employment is because of his race, color, national origin and or ethnicity and
or in violation of the Fair Labor Standards Act” is merely a legal conclusion.
Landavazo’s factual allegations are not enough to raise his right to relief above
the speculative level. See Twombly, 127 S. Ct. at 1965; Rios v. City of Del Rio,
Tex., 444 F.3d 417, 421 (5th Cir. 2006) (“[C]onclusory allegations or legal
conclusions masquerading as factual conclusions will not suffice to prevent a
motion to dismiss.”) (quotation and citation omitted).

      Conspicuously missing from the pleading are minimal facts pertaining to
Landavazo’s race, ethnicity, and/or national origin; any acts of alleged retaliation
or discriminatory conduct; or any other facts related to a discrimination or
retaliation claim. Even though the district court liberally construed the pleading
as asserting claims under      § 1981 and the Texas Labor Code, it properly
dismissed those claims for failure to state a claim upon which relief could be
granted.




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       C. Motion for Reconsideration and Leave to Amend Complaint

       The denial of a motion to alter or amend judgment under Federal Rule of
Civil Procedure 59(e) is reviewed for abuse of discretion. Dearmore v. City of
Garland, 519 F.3d 517, 520 (5th Cir. 2008) (citation omitted). We also review
a district court’s denial of leave to amend a complaint for abuse of discretion.
Carroll, 470 F.3d at 1174.          “Because of the liberal pleading presumption
underlying Rule 15(a),2 we have acknowledged that the term ‘discretion’ in this
context ‘may be misleading, because Fed. R. Civ. P. 15(a) evinces a bias in favor
of granting leave to amend.’” Mayeaux v. Louisiana Health Serv. & Indem. Co.,
376 F.3d 420, 425 (5th Cir. 2004) (citation omitted). “[A]bsent a ‘substantial
reason’ such as undue delay, bad faith, dilatory motive, repeated failures to cure
deficiencies, or undue prejudice to the opposing party, ‘the discretion of the
district court is not broad enough to permit denial.’” Id. (citation omitted).

       The district court does not abuse its discretion in denying leave to amend
if allowing amendment of the complaint would be futile. Briggs v. Mississippi,
331 F.3d 499, 508 (5th Cir. 2003) (“[T]he proposed amended complaint could not
survive a Fed. R. Civ. P. 12(b)(6) motion and allowing [plaintiff] to amend the
complaint would be futile.”); see Stripling v. Jordan Prod. Co., LLC, 234 F.3d
863, 873 (5th Cir. 2000). Therefore, we review the proposed amended complaint
under “the same standard of legal sufficiency as applies under Rule 12(b)(6).”
Id. (citations omitted).

       While Landavazo’s amended complaint makes more allegations, the
amended complaint still would not survive a Rule 12(b)(6) motion to dismiss. A
review of the amended complaint leaves the reader speculating as to what
conduct, even if taken as true, occurred that would give rise to a right to relief.


       2
         Federal Rule of Civil Procedure 15(a) provides in part that “[t]he court should freely
give leave when justice so requires.” FED. R. CIV. P. 15(a)(2).

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To survive a motion to dismiss, a complaint alleging claims of discrimination
must make factual allegations sufficient to put the defendant on notice of the
alleged unlawful conduct. Conclusory allegations are insufficient. Rule 8
requires the plaintiff to make a “showing” that he is “entitled to relief.”
Twombly 127 S.Ct. at 1965 n.3 (“Rule 8(a)(2) still requires a ‘showing,’ rather
than a blanket assertion, of entitlement to relief. Without some factual
allegation in the complaint, it is hard to see how a claimant could satisfy the
requirement of providing not only ‘fair notice’ of the nature of the claim, but also
‘grounds’ on which the claim rests.”). The amended complaint fails to allege
sufficient facts to show that Landavazo is entitled to relief and to provide fair
notice to Toro of the basis of the claims. Therefore, granting leave to file the
amended complaint would have been futile, and the district court did not abuse
its discretion in denying leave to amend.

III.   Conclusion

       For the foregoing reasons, we AFFIRM.




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