                                                    [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                    FILED
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                          DECEMBER 21, 2009
                                                           THOMAS K. KAHN
                               No. 09-12233                     CLERK



                D. C. Docket No. 08-00003-CV-3-MCR/EMT

LESLIE SMITH,

                                               Plaintiff-Appellant,

                                  versus

PSYCHIATRIC SOLUTIONS, INC.,
PREMIER BEHAVIORAL SOLUTIONS, INC.,
GULF COAST TREATMENT CENTER, INC.,

                                               Defendants-Appellees.




                Appeal from the United States District Court
                    for the Northern District of Florida


                           (December 21, 2009)


Before DUBINA, Chief Judge, BIRCH and BLACK, Circuit Judges.

PER CURIAM:
      In this appeal, Plaintiff/Appellant Leslie Smith (“Smith”) alleges that she

was terminated from her employment with Defendant/Appellees Psychiatric

Solutions, Inc. (“PSI”), Premier Behavioral Solutions, Inc. (“PBS”), and Gulf

Coast Treatment Center, Inc. (“GCTC”), in retaliation for complaining about the

physical abuse and Medicaid fraud that she witnessed or otherwise became aware

of at Appellees’ juvenile detention facility, in violation of Florida’s whistle-blower

statute and the Sarbanes-Oxley Act of 2002.

      After a period of extensive and contentious discovery, the district court

granted summary judgment in favor of the defendants. The district court also

entered an order denying Smith’s motion for leave to amend her complaint and

upheld a magistrate judge’s imposition of sanctions on Smith’s lawyer, Richard E.

Johnson. Finally, the court entered orders denying Smith’s motions to compel

discovery.

      The issues presented on appeal are:

      (1) Whether the district court erred in granting summary judgment in favor

of Appellees on Smith’s state law claim.

      (2) Whether the district court erred in granting summary judgment in favor

of Appellees on Smith’s Sarbanes-Oxley claim.




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      (3) Whether the district court erred in denying Smith’s motion to amend her

complaint.

      (4) Whether the district court erred in upholding the Magistrate Judge’s

imposition of sanctions on Smith’s attorney, Mr. Johnson.

      (5) Whether the Magistrate Judge and/or the district court erred in denying

Smith’s motions to compel discovery.

      This court reviews a district court’s grant of summary judgment de novo,

applying the same legal standards used by the district court. Kingsland v. City of

Miami, 382 F.3d 1220, 1225 (11th Cir. 2004). Summary judgment is appropriate

where “there is no genuine issue as to any material fact and . . . the moving party is

entitled to a judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(c)).

This court views the evidence and all factual inferences therefrom in the light most

favorable to the non-moving party, and resolves all reasonable doubts about the

facts in favor of the non-movant. Id.

      This court reviews a district court’s decision to disallow amendment of a

complaint after the deadline established in its pretrial order for abuse of discretion.

Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1418 (11th Cir. 1998) (quoting

Santiago v. Lykes Bros. Steamship Co., 986 F.2d 423, 427 (11th Cir. 1993)).

“[W]hen a motion to amend is filed after a scheduling order deadline, Rule 16 is

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the proper guide for determining whether a party’s delay may be excused.” Id. at

1418 n.2. That rule requires a showing of “good cause” for modification of the

deadlines in the scheduling order. Fed. R. Civ. P. 16(b)(4).

      This court’s review of the imposition of sanctions under Rule 37 “is sharply

limited to a search for an abuse of discretion . . .” BankAtlantic v. Blythe Eastman

Paine Webber, Inc., 12 F.3d 1045, 1048 (11th Cir. 1994), except for Mr.

Johnson’s due process claim, which is reviewed de novo. Id. at 1050.

      This court reviews the denial of a motion to compel discovery for an abuse

of discretion. Holloman v. Mail-Well Corp., 443 F.3d 832, 837 (11th Cir. 2006).

      As to the district court’s grant of summary judgment in favor of the

Appellees on Smith’s state law retaliation claim, we conclude from the record that

the district court correctly applied the actual violation standard as opposed to the

good faith belief standard.1 However, even if the good faith belief standard is, in

fact, the correct standard to apply, and even if Smith can establish a prima facie

case of retaliation, she has not presented “significantly probative” evidence of

pretext and, therefore, summary judgment was properly granted in favor of the

Appellees.




      1
          Accordingly, we deny Appellant’s Motion to Certify Question to the Florida Supreme Court.

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       As to the district court’s grant of summary judgment in favor of Appellees

on Smith’s Sarbanes-Oxley whistle-blower claim, we conclude that Smith has

failed to produce evidence demonstrating that she engaged in conduct protected

under Sarbanes-Oxley.2 Accordingly, we conclude summary judgment was

appropriate on this claim.

       Concerning Smith’s contention that the district court erred in denying her

motion to amend her complaint, we first conclude that Smith did not include this

issue in her notice of appeal and, therefore, has waived it on appeal. However,

even if we reached the merits of Smith’s arguments, we would affirm the district

court’s order. Specifically, as to the district court’s denial of Smith’s proposed

new state law claim, we conclude the district court did not abuse its discretion

because Smith did not show “good cause” to amend her complaint outside of the

scheduling order’s time frame. As to her proposed new Sarbanes-Oxley claim,

because Smith did not allege an adverse employment action, we conclude that the

district court did not abuse its discretion. Accordingly, we affirm the district

court’s order denying Smith’s motion to amend her complaint.




       2
         Even if Smith had engaged in protected conduct, the district court was correct in dismissing
her claim on the basis that Smith failed to exhaust her administrative remedies with respect to PBS
and GCTC and was not an employee of PSI.

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      As to the imposition of sanctions against Mr. Johnson, we conclude that the

district court correctly imposed sanctions because they were authorized by the

Federal Rules of Civil Procedure and because, by putting Mr. Johnson on notice of

the sanctions and giving him the opportunity to object, due process was satisfied.

After reading Mr. Johnson’s memorandum in opposition to sanctions, we find that

he was given a full and fair opportunity to respond.

      Finally, we uphold the district court’s orders denying Smith’s motions to

compel discovery. Again, Smith did not include these orders in her notice of

appeal and, therefore, she has waived this issue on appeal. However, even if we

were to reach the merits of this issue, we would conclude that there was no error.

As to the denial of Smith’s Rule 37 motion to compel discovery, the magistrate

judge did not abuse her discretion where she specifically listed each of Smith’s

discovery requests and gave legitimate reasons for denying them. As to the denial

of Smith’s Rule 56(f) motion to reopen discovery, we conclude that the district

court did not abuse its discretion where the appellees submitted evidence that they

had produced all non-privileged documents sought by Smith, and where the

district court concluded, after an in-camera inspection, that the documents not

produced were, in fact, privileged.




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      For the above-stated reasons, we affirm the district court’s grant of summary

judgment and its orders referenced in this opinion.

      AFFIRMED.




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