     Case: 14-20291      Document: 00512865240         Page: 1    Date Filed: 12/10/2014




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

                                                                                   FILED
                                      No. 14-20291                           December 10, 2014
                                                                                Lyle W. Cayce
                                                                                     Clerk
DEREK CARDER, An Individual, on Behalf of Himself and all Others
Similarly Situated; DREW DAUGHERTY, An Individual, on Behalf of
Himself and all Others Similarly Situated; ANDREW KISSINGER, An
Individual, on Behalf of Himself and all Others Similarly Situated,

               Plaintiffs – Appellants

v.

CONTINENTAL AIRLINES, INCORPORATED, a Delaware Corporation,

               Defendant – Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-3173


Before STEWART, Chief Judge, and BARKSDALE and GRAVES, Circuit
Judges.
PER CURIAM:*
       Plaintiff-Appellants, each current or former members of the armed
services, appeal from the grant of summary judgment in favor of Defendant-
Appellee Continental Airlines, Incorporated (Continental) on Plaintiff-


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-20291
Appellants’      claims     under     the    Uniformed       Services     Employment      and
Reemployment Rights Act of 1994 (USERRA). Plaintiff-Appellants also appeal
the denial of their Rule 56(d) motion and the grant of Continental’s motion to
stay discovery pending resolution of the summary judgment motions. For the
reasons listed herein, we AFFIRM the district court on each ruling.
                   I. FACTUAL AND PROCEDURAL HISTORY
      Plaintiffs-Appellants          Derek      Carder      (Carder),     Drew      Daugherty
(Daugherty), and Andrew Kissinger (Kissinger) (collectively, Appellants), 1
filed a class action suit in California federal court in 2009, alleging four causes
of action against Continental under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA). The case was transferred to the
Southern District of Texas that same year. Kissinger brought a failure-to-hire
claim, and Carder and Daugherty brought claims for the denial of leave accrual
and retirement benefits and alleged a hostile work environment.
      The district court dismissed the hostile work environment claim, and on
March 22, 2011, this court affirmed. Carder v. Cont’l Airlines, Inc., 636 F.3d
172, 182 (5th Cir. 2011) (Carder I). Appellants filed a petition for writ of
certiorari, which was denied on October 3, 2011. Carder v. Cont’l Airlines, Inc.,
132 S.Ct. 369 (2011). The Appellants then amended their complaint, alleging
under USERRA: (1) the same retirement benefits claim, (2) a claim for vacation
and sick leave, (3) a claim for medical, dental, and vision insurance coverage,
and (4) Kissinger’s same failure-to-hire claim. Continental answered, filed a
motion to dismiss, and moved for a stay pending a ruling on the motion to
dismiss. Appellants filed a notice of non-opposition to Continental’s motion to
stay, and the district court granted the motion to stay on March 27, 2012. On
March 28, 2012, the district court dismissed the retirement benefits claim,


      1   Mark Bolleter, a party in the original suit, is not a party to this appeal.
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finding it precluded by the Railway Labor Act (RLA), but did not dismiss the
other claims.
      Appellants filed a motion to compel discovery responses from
Continental on October 11, 2013. On October 18, 2013, Continental moved for
summary judgment on the remainder of Appellants’ claims, 2 and Appellants
filed a motion to deny or continue the motions for summary judgment pending
the completion of discovery pursuant to Federal Rule of Civil Procedure 56(d)
on November 1, 2013. On November 12, 2013, the court denied Appellants’
motion to compel but ordered “the parties to truly meet and confer regarding
the nature and scope of discovery on a going-forward basis.” Continental filed
another motion for stay pending resolution of its summary judgment motions
on March 26, 2014. On March 28, 2014, the court requested an expedited
response to the motion for stay from Appellants, setting a deadline for response
by April 7, 2014. The court entered an order granting the motion for stay on
April 2, 2014, prior to the expedited deadline it set and before Appellants
responded. On April 3, 2014, Appellants filed a motion for reconsideration of
the order granting the motion to stay. The court never ruled on the motion for
reconsideration. On April 7, 2014, the court issued a memorandum opinion
and a take-nothing-judgment denying Appellants’ Rule 56(d) motion and
granting summary judgment in favor of Continental with respect to all of
Appellants’ claims. This timely appeal followed.
      Appellants argue the district court abused its discretion by: (1) denying
Appellants’ Rule 56(d) motion, (2) granting Continental’s motions for summary
judgment without allowing Appellants to respond, and (3) granting
Continental’s motion to stay without allowing Appellants to respond. We



      2 Continental filed two separation motions: one motion for summary judgment on
Kissinger’s claim and one motion for summary judgment on Carder and Daugherty’s claims.
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AFFIRM the district court in all respects. 3
                                   II. DISCUSSION
   A. USERRA
       USERRA provides:
       A person who is a member of, applies to be a member of, performs,
       has performed, applies to perform, or has an obligation to perform
       service in a uniformed service shall not be denied initial
       employment, reemployment, retention in employment, promotion,
       or any benefit of employment by an employer on the basis of that
       membership, application for membership, performance of service,
       application for service, or obligation.
38 U.S.C. § 4311(a). If the military affiliation is a “motivating factor in the
employer’s action,” the employer may still take that action if “the employer can
prove that the action would have been taken in the absence of” the military
affiliation. 38 U.S.C. § 4311(c)(1). Benefits of employment include “rights and
benefits under a pension plan, a health plan, . . . severance pay, supplemental
unemployment benefits, [and] vacations.” 38 U.S.C. § 4303(2).
   B. The Rule 56(d) Motion
       “Discovery matters are entrusted to the sound discretion of the district
court, and therefore are reviewed for abuse of discretion.”                  McAlister v.
Livingston, 348 F. App’x 923, 940 (5th Cir. 2009) (per curiam) (internal
quotation marks and citation omitted); see also Munoz v. Orr, 200 F.3d 291,
300 (5th Cir. 2000). Further, we will only reverse a district court’s discovery
ruling when it is “arbitrary or clearly unreasonable.” McAlister, 348 F. App’x
at 940 (internal quotation marks and citation omitted). To be granted relief on
a Rule 56(d) motion, “the nonmoving party [at summary judgment] must show
how the additional discovery will defeat the summary judgment motion,” and
this showing “may not simply rely on vague assertions that additional


       3Appellants also requested that, on remand, this court assign the case to a different
judge. Since we affirm the district court, we need not reach this issue.
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discovery will produce needed, but unspecified[,] facts.” Id. (internal quotation
marks and citations omitted) (alteration in original).
      In the motion to stay, Continental argued that the discovery Appellants
sought—and requested more time to complete via the Rule 56(d) motion—was
class-related, even though a class had not yet been certified. Continental
argued, accordingly, that the discovery requested was not relevant to the
individual claims on which summary judgment was sought.
      Appellants’ Rule 56(d) motion alleges that the production of various
documents by Continental will help Appellants defeat the motions for
summary judgment. First, to oppose the motion for summary judgment on
Carder and Daugherty’s claims, Appellants requested a list of all Continental
pilots who have taken military leave and all pilots who have taken Association
Leaves of Absence (ALA) for more than 90 days, both dating back to 1994.
Second, to oppose the motion for summary judgment on Kissinger’s claim,
Appellants requested any and all documents related to Continental’s hiring
criteria, guidelines, practices, procedures, guidance and/or directives from
1994 through the present. In the same vein, Appellants also requested: (1) a
list of all persons involved in the pilot hiring and/or interview process from
1994 through the present, (2) all pilot applications from 1994 to the present,
(3) a list of all pilot applicants with any military background or affiliations
since 1994, (4) a list of all pilot applicants without any military background or
affiliations since 1994, (5) a list of all pilot applicants with military service since
1994, and (6) a list of pilots hired from 1994 who were previously employed by
a Continental express/feeder carrier and were later hired by Continental per
the terms of a “flow-through” or “preferred hiring” agreement.
      In denying the Rule 56(d) motion, the district court stated “[i]n the
Court’s view, the ‘additional’ discovery that the plaintiffs contend is necessary
is insufficiently linked to the claims that Continental relies upon in its
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[summary judgment] motion.” The court further stated that “the need for
‘class-wide’ information to meet Continental’s summary judgment arguments
. . . overlooks the fact that Continental’s motions are focused on the merits of
[Appellants’] personal claims.”    The court found the claims had no merit,
concluded that there was no basis for class certification, and denied the Rule
56(d) motion. We agree.
      Continental, on summary judgment, argues Carder and Daugherty’s
vacation and sick leave claims: (1) are precluded by the RLA’s mandatory
arbitration provision, or alternatively, (2) must fail because pilots on military
leave receive the most favorable treatment when compared to comparable
types of leave. Regarding the medical, dental, and vision coverage claims,
Continental argues: (1) Continental offers 24 months of continued coverage in
compliance with USERRA, and (2) Appellants voluntarily dropped all coverage
with Continental before going on military leave. Appellants have not shown
how the requested documentation for ALA and military leave by Continental
employees since 1994 would disprove that the RLA precludes the vacation and
sick claims or how it would defeat Continental’s assertions regarding the
medical, dental, and vision coverage claims.
      Appellants’ requested documentation may have been relevant to refuting
Continental’s argument that the vacation and sick leave claims fail because
ALA are not comparable to military leaves of absence.          See 20 C.F.R. §
1002.150(c) (requiring employers to provide vacation leave “to an employee on
a military leave of absence only if the employer provides that benefit to
similarly situated employees on comparable leaves of absence”). We need not
reach this issue, however, as the Rule 56(d) motion, with respect to Carder and
Daugherty’s vacation claim, was not decided on Continental’s assertion that
military leave receives more favorable treatment when compared to other
comparable types of leave. It was instead decided on the fact that the RLA’s
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mandatory arbitration provision controls these claims. Thus, Appellants have
not shown how the production of documents relating to Continental pilots that
have taken military or ALA leave would defeat the summary judgment motion,
as it was decided on jurisdictional grounds. See McAlister, 348 F. App’x at 940.
       Continental, on summary judgment, argues Kissinger’s failure-to-hire
claim is not meritorious because Continental did not hire him for a legitimate,
nondiscriminatory reason: that Kissinger performed at a “minimally
satisfactory” level on his flight simulator evaluation, a prerequisite for
employment with Continental as a pilot. 4 Appellants’ declaration that the
requested discovery related to Kissinger’s claim would prove that Continental
has a bias against applicants with military affiliations is insufficient to support
the Rule 56(d) motion. Proof of this bias would not defeat summary judgment
of Kissinger’s claims because Continental has offered a legitimate,
nondiscriminatory reason for its failure to hire Kissinger. Appellants have not
shown “how the additional discovery will defeat the summary judgment
motion” with respect to Kissinger’s failure-to-hire claim, and thus, this portion
of the Rule 56(d) motion must also be denied. See id.
       Accordingly, we AFFIRM the district court’s denial of Appellants’ Rule
56(d) motion.
   C. The Motions for Summary Judgment
       Appellants appeal both rulings on the motions for summary judgment
but make no arguments about the merits of summary judgment. Rather,
Appellants argue that the district court erred by ruling on the summary
judgment motions without first ruling on the Rule 56(d) motion. Appellants
contend that the district court’s joint ruling deprived Appellants of the
opportunity to respond to Continental’s summary judgment motion on the

       4 An applicant would not be recommended for hire if he or she received four “minimally
satisfactory” scores or one “unsatisfactory” score on the simulator.
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                                       No. 14-20291
merits. Appellants argue that we must review the summary judgment motions
de novo, while Continental urges an abuse of discretion standard. However,
Continental cites no authority indicating that summary judgment should be
reviewed for an abuse of discretion in any context.
       Instead, a review of our caselaw indicates that when challenges to a Rule
56(d) motion and a motion for summary judgment are both lodged on appeal,
we review the grant of summary judgment de novo and the denial of the Rule
56(d) motion for an abuse of discretion. See Am. Family Life Assurance Co. of
Columbus v. Biles, 714 F.3d 887, 894−95 (5th Cir. 2013); see also Kean v. Jack
Henry & Assocs., Inc., 577 F. App’x 342, 348−49 (5th Cir. 2014) (per curiam);
Sapp v. Mem’l Hermann Healthcare Sys., 406 F. App’x 866, 869−70 (5th Cir.
2010) (per curiam).
       Appellants cite Manzer v. Diamond Shamrock Chems. Co., for the
proposition that the district court errs when it simultaneously enters orders on
summary judgment and a Rule 56(d) motion by preventing the nonmovant
from presenting an argument against summary judgment. 907 F.2d 151, 1990
WL 92630, at *4 (6th Cir. 1990) (per curiam) (unpublished). However, the
relevant language in Manzer is actually alluding to the Sixth Circuit’s ruling
in Yashon v. Gregory, 737 F.2d 547, 552 (6th Cir. 1984), cert. denied, 486 U.S.
1032 (1988). But in Yashon, the defendants never filed a summary judgment
motion on an issue that was remanded, and the court sua sponte granted
summary judgment in the defendants’ favor. 5 Id. This is not the case here, as

       5 The majority of cases cited by Appellants stand for the proposition that the district
court may not sua sponte enter summary judgment without written motion or ten days’
notice, pursuant to the requirements of former Fed. R. Civ. P. 56(c). See Powell v. United
States, 849 F.2d 1576, 1581−82 (5th Cir. 1988) (finding error not harmless where the district
court did not provide the requisite ten days’ notice before sua sponte granting summary
judgment); W. Fire Ins. Co. v. Copeland, 786 F.2d 649, 652−53 (5th Cir. 1986) (holding that
the district court erred in granting an oral motion for summary judgment without affording
the nonmovant ten-day notice or an opportunity to present evidence); see also U.S. Dev. Corp.
v. Peoples Fed. Sav. & Loan Ass’n, 873 F.2d 731, 735−36 (4th Cir. 1989) (finding error when
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                                   No. 14-20291
Continental filed its motions for summary judgment on October 18, 2013, and
Appellants responded with a Rule 56(d) motion. The district court granted the
motions for summary judgment on April 7, 2014.               Appellants make no
arguments about the merits of the grant of summary judgment. They only
argue that they did not have the opportunity or the requisite discovery to
properly respond to summary judgment.             However, as previously noted,
nothing sought in the Rule 56(d) motion would have defeated either grant of
summary judgment.         Appellants make no substantive arguments that
summary judgment was improperly granted, and we cannot see how the
requested discovery or any additional opportunity to respond would help defeat
summary judgment.
       “Discovery is not a prerequisite to the disposition of a motion for
summary judgment.” Skiba v. Jacobs Entm’t Inc., No. 14-30355, 2014 WL
5072670, at *1 (5th Cir. Oct. 10, 2014) (per curiam) (citing Washington v.
Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990)). If a party cannot
adequately defend a motion for summary judgment, a Rule 56(d) motion is the
appropriate remedy. Id. However, “[i]f it appears that further discovery will
not provide evidence creating a genuine [dispute] of material fact,” summary
judgment may be granted. Raby v. Livingston, 600 F.3d 552, 561 (5th Cir.
2010) (internal quotation marks and citations omitted).
      Appellants concede that Rule 56(d) motions are reviewed for abuse of
discretion, yet attempt to rehash the Rule 56(d) arguments in their appeal of
summary judgment subject to de novo review.             We cannot review those
arguments for abuse of discretion as they relate to the Rule 56(d) motion, and
then also review the same arguments under a de novo standard as they relate
to summary judgment. Therefore, any arguments that the entry of summary


the district court granted summary judgment sua sponte and did not give the nonmovant
notice).
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                                   No. 14-20291
judgment was improper for discovery-related reasons are unavailing.
      Even though Appellants offer no substantive response to summary
judgment, it does not appear, viewing the facts in the light most favorable to
Appellants, that there is a genuine dispute of material fact. See Biles, 714 F.3d
at 895−96. The district court found that Carder and Daugherty’s vacation and
sick leave claims were governed by the Collective Bargaining Agreement (CBA)
between Continental and the Air Line Pilots Association (ALPA). The vacation
and sick leave accrual terms originated in the CBA, were negotiated between
Continental and ALPA, and were approved by ALPA. The disputes between
Carder and Daugherty regarding vacation and sick leave are “minor disputes”
under the RLA because they arise from the interpretation of the CBA. See
Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252−53 (1994). Continental
has carried its “relatively light burden” of establishing that the RLA covers
this dispute, and Appellants have presented nothing to rebut this. See Schiltz
v. Burlington N. R.R., 115 F.3d 1407, 1414 (8th Cir. 1997) (citation omitted).
Thus, the district court lacked jurisdiction over the vacation and sick leave
claims.
      Regarding Carder and Daugherty’s medical, dental, and vision coverage
claims, the district court found that both voluntarily dropped Continental’s
provided coverage. 6    Appellants do not dispute this.        Thus, we find that
Continental has never deprived or disallowed Carder or Daugherty this
coverage in violation of USERRA.
      Regarding Kissinger’s failure-to-hire claim, the district court found that
he was not hired because of a legitimate, nondiscriminatory reason: he
registered “minimally satisfactory” scores on his flight simulator test. Once


      6  The district court’s holding only refers to Carder voluntarily dropping his
Continental-provided coverage, but the record indicates that both Carder and Daugherty
voluntarily opted out of coverage.
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again, Appellants present nothing to rebut this contention. Thus, even if
Kissinger’s military association was a motivating factor in Continental’s
decision not to hire him, Continental’s action was not a violation of USERRA.
      Therefore, we AFFIRM the grant of both summary judgment motions in
favor of Continental.
   D. The Motion to Stay
      “Action on a request for stay . . . is a matter of judgment, and we review
the district court’s decision only to determine whether there has been an abuse
of discretion.” Itel Corp. v. M/S Victoria U (Ex Pishtaz Iran), 710 F.2d 199,
202 (5th Cir. 1983) (citation omitted). “We respect the trial court’s inherent
power to control the disposition of the causes on its docket . . . but we cannot
abdicate our role to prevent the ossification of rights which attends inordinate
delay.”   Id. at 202−03 (internal quotation marks, citation, and alteration
omitted). The crux of Appellants’ argument on the motion to stay is that they
were denied the opportunity to be heard because the stay order was entered on
April 2, even though the court requested an expedited response from
Appellants by April 7, and Appellants had not yet responded. See Mullane v.
Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (“The fundamental
requisite of due process of law is the opportunity to be heard.” (internal
quotation marks and citation omitted)).
      “[W]e have held that a trial court may properly exercise its discretion to
stay discovery pending a decision on a dispositive motion.” Corwin v. Marney,
Orton Invs., 843 F.2d 194, 200 (5th Cir. 1988) (citation omitted). To sustain a
contention that the district court abused its discretion by not allowing
discovery purportedly related to a motion for summary judgment, the
Appellants here would have to show how the already-obtained discovery left
them unable to respond to summary judgment and how the other evidence
sought to be obtained would help defeat summary judgment. See Brazos Valley
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Coal. for Life, Inc. v. City of Bryan, Tex., 421 F.3d 314, 327 (5th Cir. 2005)
(“Appellants did not, however, explain in their brief or at oral argument . . .
what relevant evidence they thought further discovery likely would have
revealed.”). Appellants made lengthy but unconvincing arguments in the Rule
56(d) motion as to how the additional discovery sought would help defeat the
motion for summary judgment.
      At first blush, the fact that the district court requested an expedited
response by April 7 and resolved the motion on April 2, may seem like error.
Even if this were error, it does not rise to abuse of discretion because
Appellants have not been deprived of their right to be heard on this issue, as
the substance of the Rule 56(d) motion attempted to explain how the additional
discovery requested would defeat summary judgment.          The district court
found, and we agree, that these additional documents would not have defeated
summary judgment. While the more prudent course of action for the district
court may have been to wait until a response on the motion to stay was filed
because it requested an expedited response, we cannot say that Appellants
were denied their right to be heard regarding additional discovery. Thus, the
district court’s grant of the motion to stay pending the resolution of the
summary judgment motions was not an abuse of discretion. See Brazos Valley,
421 F.3d at 327. For this reason, we AFFIRM the district court’s grant of the
motion to stay.
                             III. CONCLUSION
      For the above-mentioned reasons, we AFFIRM the district court in all
respects.




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