     Case: 12-40273     Document: 00512036449         Page: 1     Date Filed: 10/29/2012




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

                                                                            FILED
                                                                         October 29, 2012
                                     No. 12-40273
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ROBERT LEZA,

                                                  Plaintiff - Appellant

v.

CITY OF LAREDO; CARLOS VILLARREAL, INDIVIDUALLY,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC No. 5:09-cv-65


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Leza filed suit against the City of Laredo seeking reinstatement to his
former position with the City. After the City had moved for summary judgment
and Leza had filed his response in opposition, he was informed by the magistrate
judge that his attorney was ineligible to practice before the court because of his
suspension in state court. In response, Leza retained new counsel. New counsel
filed a motion to amend the scheduling order, seeking to re-open discovery for a
period of 90 days so additional discovery could be taken and Leza’s response to

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40273

the City’s motion for summary judgment could be supplemented. The district
court denied Leza any additional discovery, finding that Leza had not shown
good cause pursuant to Rule 16(b)(4) to modify the court’s scheduling order and
that his motion to re-open discovery was procedurally defective under Rule 56(d).
Subsequently, the district court granted the City’s motion for summary
judgment. Leza appeals the district court’s order denying his motion to re-open
discovery. We affirm.


                                               I.
       This Court reviews a district court’s decision regarding amendment of
pretrial orders for an abuse of discretion.1 Under Rule 16(b)(4), “[a] schedule
may be modified only for good cause and with the judge’s consent.”2 “The good
cause standard requires the ‘party seeking relief to show that the deadlines
cannot reasonably be met despite the diligence of the party needing the
extension.’”3 Specifically, courts consider four factors in determining whether
to allow a scheduling modification for good cause under Rule 16(b): (1) the
explanation for the failure to complete discovery on time, (2) the importance of
the amendment, (3) the potential prejudice in allowing the amendment, and (4)
the availability of a continuance to cure such prejudice.4
       Similarly, this Court reviews the denial of a Rule 56(d) motion for abuse
of discretion.5 In reviewing the district court’s ruling, we must bear in mind that


       1
           Meaux Surface Protection, Inc. v. Fogleman, 607 F.3d 161, 167 (5th Cir. 2010).
       2
           Fed. R. Civ. P. 16(b)(4).
       3
         S&W Enters., L.L.C. v. South Trust Bank of Alabama, NA, 315 F.3d 533, 535 (5th Cir.
2003) (quoting 6A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 1552.1
(2d ed. 1990)).
       4
        See Reliance Ins. Co. v. Louisiana Land & Exploration Co., 110 F.3d 253, 257 (5th
Cir. 1997).
       5
           Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 534 (1999).

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the district court has “broad discretion to preserve the integrity and purpose of
the pretrial order”6 and that district court judges have “power to control their
dockets by refusing to give ineffective litigants a second chance to develop their
case.”7


                                             II.
      We cannot conclude the district court abused its discretion in finding Leza
had not shown good cause for amending the scheduling order pursuant to Rule
16(b). In his motion, Leza argued:
      [P]laintiff requests an opportunity to take the deposition of Carlos
      Villarreal to determine his reasons for overruling the decision of the
      grievance panel that found Mr. Leza’s termination unjustified and
      that he should be reinstated. Plaintiff also needs to determine what
      evidence was relied upon by the City to terminate Mr. Leza . . . .
      The entry of an amended scheduling order would go a long way
      toward making sure that the case is decided on the merits and
      plaintiff Robert Leza is not unfairly penalized for the actions or
      inactions of prior counsel.
In denying his motion, the district court reasoned that Leza failed to establish
good cause because he “[made] no effort to explain how the deposition testimony
sought will have any bearing on the issues raised in the Defendant’s summary
judgment motion.” We agree.
      Moreover, where, as here, the party seeking to re-open discovery fails to
make any specific allegations to support his claim that the action or inaction of
his previous attorney negatively impacted his case, such that good cause for an
amendment would exist, we cannot conclude the district court abused its
discretion in denying the motion. Although it is true that the court below
sanctioned Leza’s former counsel for failing to appear at a pre-trial scheduling
conference, it is not at all clear how that sanction correlates with a failure to


      6
          Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir. 1979).
      7
          Reliance Ins., 110 F.3d at 258.

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adequately conduct discovery, especially given the fact that Leza’s former
attorney conducted some discovery, including the taking of depositions.
Moreover, former counsel’s ineligibility to practice before the court below does
not in and of itself constitute a showing of poor performance, given the fact that
his bar suspension and ineligibility to practice were unrelated to his
performance in Leza’s case. In other words, Leza made no showing that his
former attorney provided poor representation that negatively impacted his
discovery.
      In addition, Leza made no showing of diligence on his part. The interviews
that Leza alleges show diligence occurred after the district court entered its
order, making it illogical for us to conclude that the district court abused its
discretion by failing to consider such interviews in its analysis of good cause. In
short, Leza has made no showing that he was denied discovery or that his former
counsel “fumbled representation” or “negatively impacted” his case, such that
good cause existed for the requested amendment, and thus we cannot conclude
that the district court abused its discretion in denying Leza’s motion to re-open
discovery.


                                       III.
      Turning to the second basis for the district court’s decision, the district
court did not abuse its discretion by finding Leza’s motion to re-open discovery
was procedurally defective under Rule 56(d). In his motion, Leza requested
additional discovery to supplement his response to the City’s motion for
summary judgment. Rule 56(d) requires a party requesting additional discovery
as to facts essential to its opposition of a motion for summary judgment to
present an affidavit or declaration. Leza does not dispute that requirement but
instead argues that “to require [him] to have verified this by affidavit or
otherwise was redundant, inappropriate, and bureaucratic.” Regardless of
whether Leza personally believes the affidavit requirement contained in Rule

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                                No. 12-40273

56(d) is “redundant,” “inappropriate,” or “bureaucratic,” it is what Rule 56
requires.


                                     IV.
      For the reasons set forth above, we cannot find the district court abused
its discretion in denying Leza’s motion to re-open discovery and thus we
AFFIRM.




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