     Case: 16-20228      Document: 00513816670         Page: 1    Date Filed: 12/29/2016




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

                                                                                 FILED
                                                                           December 29, 2016
                                      No. 16-20228
                                                                              Lyle W. Cayce
                                                                                   Clerk
JACQUELINE RIOS, Individually and as Personal Representative of the
Estate of Russell Rios,

               Plaintiff - Appellant

v.

CITY OF CONROE, TEXAS,

               Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CV-3457


Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Jacqueline Rios (“Rios”) appeals the district court’s
denial of her motion for leave to file a Third Amended Complaint, arguing that
the district court abused its discretion under Fed. R. Civ. P. 16(b). We conclude
the district court did not abuse its discretion and therefore 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20228
      Background 1
      On July 31, 2013, Rios’s 19-year-old son, Russell Rios, was allegedly
spotted shoplifting by Wal-Mart employees, who then followed him out of the
store. Defendant Jason Blackwelder, an off-duty police officer with the City of
Conroe Police Department, was in the parking lot with his wife. Rios alleges
that despite being told by a Wal-Mart employee that his help was not required,
Blackwelder chased down her son and shot him dead. Blackwelder was initially
placed on administrative leave, but he was eventually convicted of
manslaughter on June 11, 2014, at which point the City of Conroe terminated
his employment and his law enforcement license was revoked.
      Rios filed this lawsuit against Blackwelder on November 21, 2013,
represented by attorneys David Bernsen and Christine Stetson. Attorney
Clement Aldridge, Jr. was added as an additional attorney on December 5,
2013. Rios filed her First Amended Complaint on February 10, 2014.
      On February 24, 2014, the district court entered a Docket Control Order,
establishing a deadline for amendment to pleadings of July 1, 2014, which it
soon extended sua sponte to July 31, 2014. On July 23, 2014, before the
deadline had passed, Rios filed an unopposed motion to extend the pleading
amendment deadline to September 30, 2014, which the court granted. The
court granted a second extension of the pleading amendment deadline, on joint
motion filed before the September 30 deadline passed, to December 1, 2014. It
also extended the deadline for joinder of parties to October 31, 2014.
      Rios filed her Second Amended Complaint on October 30, one day before
the deadline for joinder of new parties. For the first time she added the City of
Conroe (the “City,” also the appellee here) as a defendant, alleging that the


      1 The facts in this section come from the district court’s memorandum and order on
Rios’s motion for leave to file a Third Amended Complaint, Rios v. Blackwelder, No. H-13-
3457 (S.D. Tex. Dec. 1, 2015) (“First District Court Order”).
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City had a policy of requiring its officers to apprehend misdemeanor theft
suspects through any means necessary, including deadly force, and that the
City ratified Blackwelder’s conduct by failing to properly discipline him.
      On February 19, 2015, in connection with a discovery hearing, the
district court issued an Amended Docket Control Order, setting April 13, 2015
as the new pleading amendment deadline. Rios filed no further amendment
before that deadline. In fact, no further filings were made in the case from
February until late June of 2015, more than two months past the pleading
amendment deadline. On June 30, 2015, Rios’s three attorneys, Bernsen,
Stetson, and Aldridge, all moved to withdraw as her counsel. They told the
court that a “Mr. McCotter” would soon make an appearance as counsel. The
court granted the motion on July 17, 2015, but “Mr. McCotter” never appeared.
      Instead, on July 31, 2015, attorney Patrick D. Hagerty filed a motion to
appear pro hac vice, which the court conditionally granted on August 3, 2015,
requiring him to apply for admission to the Southern District of Texas. Hagerty
orally moved to withdraw that same day, but the district court denied the order
and instead entered an amended scheduling order to accommodate his recent
appearance. The court extended several deadlines but did not extend the
pleading amendment deadline, which had expired on April 13, 2015. Because
Hagerty failed to apply for admission to the Southern District of Texas, the
district court ordered him removed from the case on August 31, 2015, leaving
Rios in pro se status. In that order, the court expressly noted that the deadlines
in the amended scheduling order “remain in effect and will not be extended.”
      That same day, attorney Paul Gertz, Rios’s current attorney, entered his
first appearance as her counsel of record—her fifth to date, and the second to
be added after the expiration of the April 13, 2015 pleading amendment
deadline, a deadline which had previously been extended multiple times. On
September 2, 2015, Rios filed a motion for an amended scheduling order,
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seeking a six-month extension of the deadlines in the August 3, 2015
scheduling order. The August 3 scheduling order had not extended the
pleading amendment deadline, and Rios did not seek an extension of the
pleading amendment deadline at that time. The district court, noting that it
had already stated that the August 3, 2015 amended scheduling order
deadlines would not be extended, refused to give the six-month extension
requested by Rios. Instead, it extended the applicable deadlines (excluding the
pleading amendment deadline) by approximately three months, reiterating in
heavily emphasized text that it would not permit any further extensions.

      Motion for Leave to Amend and District Court Order 2
      On October 30, 2015, Rios filed a motion for leave to file a Third Amended
Complaint. In that motion, which was filed more than six months after the
April 13, 2015 pleading amendment deadline, she requested leave to amend
her complaint because her new counsel, Gertz, did not believe the claim
asserted against the City in the Second Amended Complaint was supported by
the facts, but there might be a viable claim against the City for failure to train
its officers concerning proper off-duty conduct.
      The district court denied leave to amend. It noted that Fed. R. Civ. P.
16(b)(4) provides the standard for requests to amend pleadings after a
scheduling order’s deadline has expired. Specifically, Rule 16(b)(4) provides
that “[a] schedule may be modified only for good cause and with the judge's
consent.” The district court looked to Fifth Circuit law, under which “[t]he four
factors relevant to good cause are: (1) the explanation for the failure to timely
move for leave to amend; (2) the importance of the amendment; (3) potential
prejudice in allowing the amendment; and (4) the availability of a continuance




      2   The facts in this section also come from the First District Court Order.
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                                       No. 16-20228
to cure such prejudice.” 3 The district court found that Rios failed to satisfy any
of the four factors.
       First, the district court found that Rios’s explanation for the delay in
seeking to amend her pleading was inadequate because she failed to explain
why none of her four previous attorneys had noticed this new theory of liability
or attempted to assert it prior to the April 13, 2015 deadline. (We note that one
of those four, Hagerty, only entered an appearance in this case after the
deadline had already passed, but the general point stands.) Rios argued that
her previous attorneys did not even take depositions, but she failed to explain
why they waited so long to do so, and she had access to other discovery that
would have allowed her to assert the failure-to-train theory earlier.
       In fact, Rios argued that her four previous attorneys had simply failed to
recognize the failure-to-train theory. The district court reasoned that “[m]ere
inadvertence is insufficient to constitute good cause under Rule 16,” even if
that inadvertence is “coupled with [] lack of prejudice to the non-movant.” 4 Put
simply, the district court was not convinced that Rios’s previous attorneys had
any excuse for failing to move to amend prior to the April 13, 2015 deadline.
       Next, the district court rejected Rios’s argument that the proposed
amendment was important because otherwise the claim asserted against the
City in the Second Amended Complaint would be dismissed for failure of proof.
The district court noted that the new failure-to-train claim faced its own
challenges because a “pattern of similar constitutional violations by untrained
employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for



       3  E.E.O.C. v. Serv. Temps Inc., 679 F.3d 323, 334 (5th Cir. 2012) (internal quotation
marks removed) (quoting Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir.
2008)).
        4 First District Court Order at 8-9 (citing Klein v. Fed. Ins. Co., No. 7:03-CV-102-D,

2014 WL 239652 (N.D. Tex. Jan. 22, 2014), and Manley v. Invesco, No. CIV.A. H-11-2408,
2012 WL 2994402 (S.D. Tex. July 20, 2012)).
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                                        No. 16-20228
purposes of failure to train.” 5 The district court also noted that whether or not
Rios has a viable claim against the City cannot affect her right to pursue the
individual directly responsible for her son’s death, Blackwelder, who would
remain in the suit no matter what. In other words, the court reasoned that
because Rios would be able to pursue Blackwelder, the amendment changing
her theory of municipal liability against the City, a lesser defendant, was not
very important, particularly because the district court found it to lack merit.
      Third, the court found that allowing the amendment would prejudice the
City, in that allowing the totally new claim would require additional discovery
on that claim, adding substantial time and expense. Fourth and finally, the
district court found that any prejudice could not be cured with a continuance
because the case had already been pending for more than two years, and, as
just explained, allowing Rios to assert the new failure-to-train claim would
only add time and expense.
      Because the district court concluded that Rios had failed to satisfy any
of the four elements of good faith, it declined to allow leave to file the Third
Amended Complaint:
      [T]his case has been pending for more than two years, and the
      Court is not inclined to extend the remaining deadlines in this case
      yet again. Instead, the Court exercises its discretion to preserve
      the integrity and purpose of an established Docket Control Order,
      particularly deadlines that have already been extended
      repeatedly. The Court has twice advised counsel clearly and
      unequivocally that no further extensions would be permitted. The
      Court exercises its discretion to enforce that admonition. 6




      5   Id. at 10 (quoting Kitchen v. Dallas Cnty., 759 F.3d 468, 485 (5th Cir. 2014)).
      6   Id. at 11-12.
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                                     No. 16-20228
      Motion for Reconsideration and District Court Order 7
      Thereafter, Rios filed a motion to reconsider. She argued more fully that
she had presented good cause to amend. The City filed a motion for summary
judgment seeking dismissal of the claim against it under the Second Amended
Complaint. The district court began by denying Rios’s motion to reconsider.
      First, the district court explained that Rios was relying primarily on
three Fifth Circuit cases from 1981 or earlier, as well as a 2010 Fifth Circuit
case affirming the district court’s exercise of its discretion to allow a late
amendment. 8 (Because the abuse of discretion standard is highly deferential,
a decision affirming a district court’s decision to allow an amendment does not
necessarily mean that a court would not have affirmed a decision to deny an
amendment on the same facts.) The district court correctly observed that this
case is governed by Rule 16 and relevant case law, and the court is afforded
broad discretion.
      In her motion for reconsideration, Rios presented a more complete story
concerning her previous attorneys’ failure to file an amendment to help show
good cause in her delay. She claimed the City delayed in responding to her
discovery until well after Blackwelder was convicted, which in turn delayed
her previous attorneys from reviewing the documents in time. In particular,
she claimed that her attorneys received approximately 2,600 pages of discovery
documents on March 30, 2015, approximately two weeks prior to the April 13,
2015 pleading amendment deadline. She claimed it would have taken her
attorneys at least one month to review the documents and schedule
appropriate depositions, and that at any rate her relationship with her first



      7  See generally the district court’s memorandum and order on Rios’s motion for
reconsideration and the City’s motion for summary judgment, Rios v. Blackwelder, No. H-13-
3457 (S.D. Tex. Feb. 1, 2016) (“Second District Court Order”).
       8 Second District Court Order at 9-10.

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                                     No. 16-20228
three attorneys deteriorated during May and June of 2015, culminating in
their withdrawal from the case.
      Eventually her fifth and current attorney, Gertz, joined the case, and he
filed the motion to amend “within days of realizing that the evidence did not
support the claims in the Second Amended Complaint.” 9 Although the district
court recognized that Rios’s current attorney, Gertz, “has acted promptly and
in good faith,” 10 the district court rested firm on its finding that Rios had failed
to show good reason for her previous attorneys’ failure to file a more timely
motion for leave to amend. By the time Gertz joined the case, the pleading
amendment deadline had long passed, and the district court had indicated
multiple times that it would not extend deadlines any further.
      Rios also argued that the amendment was important because her
proposed failure-to-train claim did have merit, based on a footnote in City of
Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 1205, 103 L. Ed. 2d 412 (1989).
There, the Supreme Court hypothesized that even in the absence of a pattern
of constitutional violations, a single instance might trigger municipal liability
under a failure-to-train theory if the municipality knew “to a moral certainty”
that a constitutionally risky situation would occur but still failed to train
officers regarding “the constitutional limitations on the use of deadly force.” 11
The district court rejected that argument because it found that “[n]o such
situation is presented in Plaintiff’s proposed Third Amended Complaint, and
it seems quite unlikely that she would be able to prevail on the ‘single-incident’
theory to support her failure-to-train claim against the City of Conroe.” 12




      9 Id. at 9.
      10 Id. at 9 n.2.
      11 489 U.S. at 390 n.10.
      12 Second District Court Order at 11.

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                                   No. 16-20228
      Rios also argued that the district court “overstated” the prejudice to the
City in the event it allowed her to file the Third Amended Complaint. The court
rejected that argument on the ground that the City had already spent more
than $13,000 in fees defending the case and would have to spend still more
defending the new failure-to-train claim. Finally, the court noted that Rios is
not entitled to reconsideration of its order denying leave to amend merely
because she thought Blackwelder could not satisfy a judgment against him,
particularly when Rios failed to present evidence supporting that assertion.
      Because the district court found Rios did not have good cause for seeking
leave to amend so long past the April 13, 2015 pleading amendment deadline,
it denied her motion for reconsideration. It also granted the City’s motion for
summary judgment, dismissing Rios’s claim against the City under the Second
Amended Complaint with prejudice.

      Analysis
      Rios timely filed a notice of appeal, arguing that the district court abused
its discretion under Rule 16(b)(4) in denying leave to amend. She presents
essentially the same facts and arguments she presented to the district court in
her motion for leave and motion for reconsideration, particularly emphasizing
her previous attorneys’ failure to state a viable claim prior to the pleading
amendment deadline on April 13, 2015. As noted above, the district court’s
denial of a pleading amendment past the deadline under Rule 16(b)(4) is
subject to a very deferential standard of review, and we must remain mindful
of the district court’s “broad discretion to preserve the integrity and purpose of
the pretrial order.” 13 We cannot say the district court abused its discretion on
these facts.



      13 S & W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 535 (5th
Cir.2003) (internal quotation marks and citation omitted).
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                                 No. 16-20228
      We have reviewed the record in this case, and we find the district court’s
summary of the procedural history and facts to be accurate. Rios filed her
motion for leave to amend months after the pleading amendment deadline had
passed, and after the district court had repeatedly emphasized that it would
not extend deadlines further. The district court explained in detail in both of
its orders why it found that Rios had failed to show good cause for the late
motion for leave to amend, and we will not disturb those findings on appeal.
      The crux of Rios’s explanation for her previous attorneys’ failure to
amend her complaint prior to the deadline is that they did not have time to do
so. Rios claims her counsel received the City’s delayed discovery responses on
March 30, 2015, shortly before the April 13, 2015, pleading deadline, and it
would have taken at least one month to review them. At that time, Rios had
three attorneys of record. Those attorneys, exercising reasonable diligence,
certainly should have been able to review approximately 2,600 pages of
discovery materials in approximately two weeks and determine whether they
offered a new theory of liability against the City, which would have allowed
time to amend the complaint as of right. Moreover, if her attorneys truly did
not have the time to review the new discovery documents, for whatever reason,
prior to the pleading amendment deadline, they could have requested an
extension of the deadline before it passed. They failed to do that.
      Finally, her attorneys at the time did not even seek leave to amend the
complaint after the deadline passed. Even allowing for the fact that her
relationship with her attorneys deteriorated in May and June of 2015 (after
the pleading amendment deadline had already passed), they should have
already known whether the evidence supported a new theory of the case,
having had more than one month to review the new documents.
      Simply put, Rios’s attorneys had plenty of time to review the documents,
either before or soon after the pleading amendment deadline passed, but they
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                                        No. 16-20228
failed to do anything, and the district court did not abuse its discretion by
failing to find that explanation adequate. Similarly, the district court did not
abuse its discretion in rejecting Rios’s argument that her attorneys
inadvertently overlooked the possible basis for a failure-to-train claim. We
reach the same conclusion on the other good faith factors. Rios has not
presented any evidence that the district court abused its discretion when it
found: (a) the amendment would prejudice the City in the form of additional
discovery expenses, attorney’s fees, and time, and (b) that prejudice could not
be cured by a continuance.
      Finally, Rios argues that the amendment is important because she could,
in fact, prevail on her failure-to-train theory. Although we note that the district
court’s reasoning here appears sound, we decline to reach this question because
it is clear it was not the district court’s primary basis for denying leave to
amend. Instead, the district court emphasized that the case had gone on for
approximately two years, the parties had already received multiple extensions,
and the court had repeatedly stated that no further extensions would be
granted. Indeed, the court seemingly suggested that the denial was warranted
even if there might be some merit to the proposed failure-to-train claim:
      Notwithstanding whether the proposed amendment has potential
      merit, the Court notes that the case is pending against Defendant
      Blackwelder also, and the claims against him are not dependent
      on any municipal liability claim against the City of Conroe.
      Plaintiff will, if appropriate, have her “day in court” on her claims
      against Blackwelder—the individual who shot and killed her son—
      regardless of whether the City of Conroe is a defendant at the time
      of trial. 14
      In sum, the district court found that Rios failed to meet a single factor
demonstrating good cause in failing to file a motion to amend, and it seemed



      14   First District Court Order at 10.
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to place special emphasis on her inadequate explanation for the failure and the
potential prejudice to the City. Rios has not pointed to anything that would
permit us to conclude the district court abused its discretion under Rule
16(b)(4) in denying the amendment of its own scheduling order, particularly
where the court had long emphasized it would not grant further extensions.
Although we certainly sympathize with Rios and see some equities on her side,
we conclude that we must, on these facts, afford the district court the “broad
discretion to preserve the integrity and purpose of the pretrial order.” 15
      AFFIRMED.




      15   S & W Enters., 315 F.3d at 535.
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