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

                                                                            FILED
                                                                            April 1, 2008

                                       No. 06-31122                   Charles R. Fulbruge III
                                                                              Clerk

JAMES L. REYNOLDS, JR.; HOWARD M. SCHMALZ; LYDIA SCHMALZ,
Individually and on behalf of all others similarly situated; JOHN F. LANGE,

                                                  Plaintiffs-Appellants,
v.

NEW ORLEANS CITY, through its Office of Emergency Preparedness;
TERRY EBBERT, Director of the Orleans Parish Office of Emergency
Preparedness, Individually and in his Official Capacity,

                                                  Defendants-Appellees,



                 Appeal from the United States District Court for
                         the Eastern District of Louisiana


Before REAVLEY, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       This suit arises from the aftermath of the Hurricane Katrina disaster.
Plaintiffs-Appellants James Reynolds, Howard Schmalz, Lydia Schmalz, and
John Lange (collectively “Plaintiffs”) claim that the City of New Orleans (“City”)
and Terry Ebbert, Director of the Orleans Parish Office of Emergency
Preparedness (collectively “Defendants”), violated several of their constitutional



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-31122

rights in promulgating and enforcing a mandatory evacuation order in the wake
of the hurricane. Finding no reversible error in the district court’s grant of
summary judgment to the Defendants, denial of the Plaintiffs’ request for a
continuance, and denial of the Plaintiffs’ motion for class certification, we affirm.
I.    Factual and Procedural Background
      Hurricane Katrina struck New Orleans and the surrounding areas on
August 29, 2005. The destruction was monumental, with much of the city left
under water. Following the hurricane, with police officers and National Guard
troops focusing on saving lives, looting and crime were rampant. See Robert D.
McFadden and Ralph Blumenthal, Higher Death Toll Seen; Police Ordered to
Stop Looters, N.Y. Times, Sept. 1, 2005, at A1. On September 6, the Mayor of
New Orleans issued the following evacuation order (hereinafter “Order”):
                    Whereas, Hurricane Katrina has caused
             catastrophic damage to the City of New Orleans,
             including, without limitation, several breaches in the
             levee system, loss of power and water service, and the
             collapse and/or loss of structural integrity of roadways,
             buildings, and other structures,
                    Whereas, the above-referenced damage
             necessitates an immediate and unimpeded recovery
             effort by the City, the State of Louisiana, and the
             United States Government,
                    Whereas, the presence of individuals not
             specifically engaged by the City, State, or U.S.
             Government to assist in the remediation and recovery
             effort would distract, impede, or divert essential
             resources from the recovery effort,
                    Now, therefore, I as the Mayor of the City of New
             Orleans, pursuant to the authority granted by
             Louisiana Revised Statutes 29:727 and 730.2, do hereby
             promulgate and issue the following mandatory
             evacuation order, which shall supercede the Order
             issued by me on August 28, 2005, which shall remain in
             effect for thirty days from this date, unless extended by
             my order or earlier terminated by my order:


                                         2
                                No. 06-31122

                   Effective immediately, any public safety officer
            within the boundaries of the Parish of Orleans,
            including, without limitation, members of the New
            Orleans, including, without limitation, members of the
            New Orleans Police Department, the New Orleans Fire
            Department, the National Guard and any branch of the
            U.S. Military, is hereby instructed and authorized to
            compel the evacuation of all persons from the City of
            New Orleans, regardless of whether such persons are
            on private property or do not desire to leave, unless
            such persons are determined by such public safety
            officers to be specifically engaged by the City, the State
            or the U. S. Government in providing assistance in the
            remediation and recovery effort.
                   Those persons who are currently located in
            Algiers on the West Bank side of Orleans Parish are
            hereby excepted from this Order.
      Plaintiffs were all residents of New Orleans at the time of Hurricane
Katrina who were either prevented from returning to their property or forcibly
evacuated under the Order. Plaintiff James L. Reynolds, Jr. owns a home in
New Orleans that was unaffected by Hurricane Katrina and the subsequent
flooding. On September 1, 2005 he left his home, and was prevented from
returning to his home and his property. Plaintiffs Howard and Linda Schmalz
also own a home in New Orleans that was unaffected by flooding.          They
evacuated prior to the hurricane, and were not able to return to their home due
to the Order. Plaintiff John F. Lange remained in his New Orleans home after
the hurricane struck. He had no trouble with looters, and he had transportation
and adequate food and water. On September 8, 2005, a Louisiana state trooper
and seven California Highway Patrol Officers entered Lange’s property and told
Lange that he had to come with them. Lange was not arrested, but was taken
in an Army truck to the New Orleans Convention Center. There, the military
searched his person and subsequently released him back into the city. Lange




                                      3
                                      No. 06-31122

returned to his home and was not bothered again. By September 27, 2005, all
Plaintiffs had been allowed reasonable access to their properties.1
       James Reynolds, Howard Schmalz, and Lydia Schmalz filed the present
lawsuit against the City of New Orleans and Terry Ebbert, Director of the
Orleans Parish Office of Emergency Preparedness, in federal district court on
September 12, 2005. They amended their complaint on January 24, 2006 to add
Lange as a plaintiff. As amended, the complaint alleged that Defendants’
actions in evacuating Reynolds and the Schmalzes and preventing them from
returning to their property denied the Plaintiffs equal protection, procedural due
process, and substantive due process under the Constitution. The complaint also
alleged that Lange was subject to unconstitutional searches and seizures. On
February 8, 2006, the Plaintiffs moved to certify two classes of plaintiffs. The
first class would be composed of individuals who, like Reynolds and the
Schmalzes, suffered property loss as a result of being denied entry to New
Orleans after the storm. The second class would contain members who, like
Lange, reside in areas that were not flooded by the hurricane. These members
allegedly suffered illegal searches and seizures stemming from the enforcement
of the Order. The district court denied to motion to certify on March 29, 2006,
finding the class definition illogical and unworkable and also finding that the
class representatives’ claims were not necessarily typical and did not adequately
represent the proposed class. The Plaintiffs did not seek interlocutory review of
this ruling.
       At this point, the only claims remaining before the district court were the
Plaintiffs’ individual claims. On September 19, 2006, the Defendants filed a
“Motion for Judgment on the Pleadings Pursuant to Rule 12(c) or, Alternatively,

       1
         For a more comprehensive discussion of the perilous conditions and immense
challenges facing property owners in the aftermath of the hurricane, see Michael Cook, Note:
“Get Out Now or Risk Being Taken Out by Force”: Judicial Review of State Government
Emergency Power Following a Natural Disaster, 57 Case W. Res. 265, 265-68 (2006).

                                             4
                                       No. 06-31122

for Summary Judgment Pursuant to Rule 56” with respect to these claims. On
September 26, 2006, the Plaintiffs filed a motion to defer hearing of Defendants’
motion; Plaintiffs argued that additional discovery was needed. Plaintiffs also
filed an opposition to the motion for summary judgment. On October 10, 2006,
the district court granted Defendants’ motion, finding that “no material fact
issues are in dispute that preclude summary judgment or, alternatively, the
granting of the motion for judgment on the pleadings.” The district court also
denied as moot the Plaintiffs’ motion for a continuance. Plaintiffs filed a timely
notice of appeal, appealing the denial of class certification, the district court’s
grant of Defendants’ motion for judgment on the pleadings or summary
judgment, as well as the denial of their motion for a continuance.
II.    District Court’s Dismissal of Plaintiff’s Claims
       Initially, we note that we are construing the district court’s October 10,
2006 Order as a grant of summary judgment to the Defendants, rather than a
judgment on the pleadings, because it appears that the district court considered
matters outside of the pleadings in dismissing the Plaintiffs’ claims. See, e.g.,
Bolen v. Dengel, 340 F.3d 300, 312 (5th Cir. 2003) (construing district court’s
order as grant of summary judgment because the district court did not exclude
an affidavit which was outside of the submitted pleadings).2
       This Court reviews the district court’s grant of summary judgment de
novo, applying the same standards as the district court. Keenan v. Tejeda, 290
F.3d 252, 262 (5th Cir. 2002). Under Federal Rule of Civil Procedure 56,
summary judgment is appropriate when the record discloses that there is no


       2
         Thus, in evaluating Plaintiffs’ appeal, we may only consider the evidence present in
the summary judgment record. Here, the record contains two affidavits submitted by
Plaintiffs: (1) Lange’s affidavit, which was submitted in support of Plaintiffs’ own motion for
summary judgment; and (2) the affidavit of James Delery, not a named party in this lawsuit,
which was submitted in support of Plaintiff’s motion for class certification. There had been no
depositions yet taken in the case, and the district judge did not receive testimony at the
summary judgment hearing.

                                              5
                                  No. 06-31122

genuine issue of material fact and that the movant is entitled to judgment as a
matter of law. FED R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). Defendants, the moving parties, bore the initial burden of “informing the
District Court of the basis for [their] motion, and identifying those portions of
the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, which [they] believe[] demonstrate the
absence of a genuine issue of material fact.” Celotex, 417 U.S. at 323. Once
Defendants’ burden was met, the burden shifted to Plaintiffs, the nonmovants,
to “go beyond the pleadings and designate specific facts showing that there is a
genuine issue for trial.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (en banc). “Conclusional allegations and denials, speculation, improbable
inferences, unsubstantiated assertions, and legalistic argumentation do not
adequately substitute for specific facts showing a genuine issue for trial.” Oliver
v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
      Plaintiffs’ constitutional claims arise under 42 U.S.C. § 1983. To state a
claim pursuant to § 1983, a plaintiff must claim a violation of a right secured by
the Constitution or laws of the United States and demonstrate the alleged
deprivation was committed by a person acting under color of state law.
Randolph v. Cervantes, 130 F.3d 727, 730 (5th Cir. 1997). Plaintiffs brought suit
against the City, as well as against Ebbert. A municipality may be held liable
under § 1983 when its official policies or customs violate the Constitution.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978). The plaintiff must
identify the specific policy or custom, and show that the final policy maker,
through its “deliberate conduct,” was the “moving force” behind the violation.
Bd. of County Comm’rs v. Brown, 520 U.S. 397, 405, 117 S. Ct. 1382, 137 L. Ed.
2d 626 (1997). Plaintiffs also sued Ebbert, in both his individual and official
capacity. This Court has explained that official-capacity suits should be treated
as suits against the government entity, see, e.g., Turner v. Houma Mun. Fire and

                                        6
                                       No. 06-31122

Police Civil Serv. Bd., 229 F.3d 478, 483 (5th Cir. 2000); therefore, Plaintiffs’
claims against Ebbert in his official capacity merge with their claims against the
City.
        A.    Claims for Injunctive and Declaratory Relief
        As the Order is no longer in effect, the Plaintiffs’ claims for injunctive and
declaratory relief are moot. See Houston Chronicle Pub. Co. v. League City, 488
F.3d 613, 619 (5th Cir. 2007) (holding that disputes concerning repealed
legislation are “generally moot”).3 The district court’s dismissal of these claims
was not in error.
        B.    State Law Claims
        On appeal, Plaintiffs cite to numerous provisions of the Louisiana
Constitution in support of their claims. Because Plaintiffs failed to adequately
raise these arguments before the district court, these arguments cannot provide
a basis for reversing the district court’s grant of summary judgment. See Pluet
v. Frasier, 355 F.3d 381, 385 (5th Cir. 2004) (“We will not disturb the district
court’s judgment based upon an argument presented for the first time on
appeal.”). To the extent that Plaintiffs are arguing that their complaint contains
claims arising from the Louisiana Constitution, Plaintiffs failed to adequately
plead these claims in their complaint, as the complaint fails to cite to any
Louisiana law as a basis for relief. See FED. R. CIV. P. 8(a)(2).
        C.    Equal Protection Claim
        In their complaint, Plaintiffs allege that Reynolds and the Schmalzes were
denied equal protection of the law in violation of the United States Constitution




        3
        An important exception to this general rule applies if there is a substantial likelihood
that the challenged statute will be reenacted or replaced by another constitutionally suspect
law. See, e.g., City of Mesquite v. Aladdin’s Castle, 455 U.S. 283 (1982). Plaintiffs have not
alleged that this exception applies, and in any event, given the unique circumstances that
necessitated the Order, such exception would not apply.

                                               7
                                       No. 06-31122

because the Order was applied unequally – some people were refused access to
their homes while others were allowed to return.
           On appeal, other than mentioning that the Orders were “not enforced
equally,” Plaintiffs’ briefs do not discuss an equal protection claim.4 “We will not
raise and discuss legal issues that [an appellant] has failed to assert.”
Brinkmann v. Abner, 813 F.2d 744, 748 (5th Cir. 1987); see also FED. R. APP. P.
28(a). The mere mention of a claim that has been appealed does not constitute
a supported argument or adequate briefing, nor does it preserve the issue for
review, so this issue is waived. See, e.g., Castro v. McCord, No. 05-21034, 2007
U.S. App. LEXIS 29277, at *4 (5th Cir. Dec. 17, 2007) (holding that a party
“waives an issue if he fails to adequately brief it”); In re Texas Mortg. Services
Corp., 761 F.2d 1068, 1073 (5th Cir. 1985)(“[I]ssues not raised or argued in the
brief of the appellant may be considered waived and thus will not be noticed or
entertained by the court of appeals.”).
       D.      Procedural Due Process Claim
       Plaintiffs raise two separate procedural due process claims. First, they
contend that Plaintiffs were entitled to a hearing prior to the City’s depriving
them of the use of their property through the Order and that they should have
been given an opportunity to appeal the denial of their requests for re-entry to
the City. Second, they argue that Lange’s arrest constituted an unconstitutional
deprivation of his liberty interests. We will address each of these claims in turn.
       With respect to the first of Plaintiffs’ procedural due process claims, the
claims based on the denial of access to their properties, the Plaintiffs have failed
to point to any competent evidence in the record supporting this claim. In
support of their opposition to summary judgment, Plaintiffs merely restated the


       4
        In fact, the only discussion of unequal enforcement of the Orders is located in the
“Substantive Due Process” section of Plaintiffs’ brief. There is no argument section pertaining
to an equal protection claim, nor is equal protection even mentioned in Plaintiffs’ briefs.

                                              8
                                   No. 06-31122

allegations set forth in the complaint – that Plaintiffs’ were unconstitutionally
denied access to their property in the immediate aftermath of the hurricane.
Plaintiffs did not submit any affidavits detailing the alleged denials of due
process, nor did Plaintiffs point to any evidence in the record supporting the
allegations stated in their complaint and set forth in their opposition to
summary judgment.        This Court has made clear that “unsubstantiated
assertions are not competent summary judgment evidence . . . In response to
motions for summary judgment, it is incumbent upon the non-moving party to
present evidence – not just conjecture and speculation – to support each element
of the claim.” Lewallen v. ConMed Corp., No. 07-50768, 2008 U.S. App. LEXIS
394, 5-6 (5th Cir. 2008) (citing Grimes v. Tex. Dep’t of Mental Health & Mental
Retardation, 102 F.3d 137, 139-40 (5th Cir. 1996)). As such, the district court’s
grant of summary judgment to the Defendants was proper.
      Plaintiffs’ second procedural due process claim arises from Lange’s arrest
and detention. The record contains Lange’s affidavit, which indicates that on
September 8, 2005, Lange was ordered by a Louisiana state trooper to vacate his
residence and to accompany the trooper to the New Orleans Convention Center.
Lange was not arrested, and after a brief detention was released and returned
to his home. On appeal, Plaintiffs argue that Lange was entitled to some sort
of process prior to the actions which deprived him of his liberty; Plaintiffs do not,
however, specify what level of judicial process Lange was entitled to.
Essentially, Lange appears to be claiming that his constitutional rights were
violated when he was detained without either a pre-detention probable cause
determination or a prompt post-detention probable cause hearing. See Gerstein
v. Pugh, 420 U.S. 103, 114 (1975)(holding that Fourth Amendment requires that
determination of probable cause “be made by a judicial officer either before or
promptly after arrest”). This allegation properly invokes the protections of the
Fourth Amendment; not the due process clause of the Fourteenth Amendment.

                                         9
                                  No. 06-31122

See Albright v. Oliver, 510 U.S. 266, 273, 114 S. Ct. 807, 127 L. Ed. 2d 114 (1994)
(holding that “[w]hen a particular amendment provides an explicit textual source
of constitutional protection against a particular sort of government behavior,
that amendment, not the more generalized notion of substantive due process,
must be the guide for analyzing these claims”); Conyers v. Abitz, 416 F.3d 580,
586 (7th Cir. 2005) (“[C]onstitutional claims must be addressed under the most
applicable provision.”); Becker v. Kroll, 494 F.3d 904, 920 (10th Cir. 2007)
(holding that “the Fourth Amendment adequately protected [plaintiff’s]
constitutional liberty interests, and she therefore has no procedural due process
claim based on pre-trial deprivations of physical liberty”); Larson v. Neimi, 9
F.3d 1397, 1402 (9th Cir. 1993) (“[I]n actions for the unconstitutional seizure of
persons by officials, liability will be determined under the specific standards of
the Fourth Amendment rather than under the general due process standards of
the Fourteenth Amendment.”). As such, the district court properly dismissed
any procedural due process claims relating to Lange’s detention.
      E.    Substantive Due Process Claim
      Plaintiffs raise two arguments as to why the Order violated their
substantive due process.      First, they argue that the order was enforced
unequally, arbitrarily, and discriminatorily. Second, they argue that the order
was void for vagueness.
      To the extent that Plaintiffs allege a substantive due process violation
based on unequal enforcement of the Order, this claim is not supported by any
evidence in the summary judgment record. As noted above, Plaintiffs did not
provide any affidavits or other competent summary judgment evidence
indicating that they did, in fact, experience unequal enforcement of the Order.
Their opposition brief merely restated the unsupported allegations set forth in
their complaint; this is not sufficient to defeat summary judgment. Further,
even had Plaintiffs provided adequate summary judgment evidence of unequal

                                        10
                                  No. 06-31122

enforcement and injuries stemming from such enforcement, their claim would
fail. Substantive due process “bars certain arbitrary, wrongful government
actions regardless of the fairness of the procedures used to implement them.”
Zinermon v. Burch, 494 U.S. 113, 125 (1990) (internal citations omitted). As this
Court previously observed, “[t]he Supreme Court’s discussions of abusive
executive action have repeatedly emphasized that ‘only the most egregious
official conduct can be said to be arbitrary in the constitutional sense.’”
McClendon v. City of Columbia, 305 F.3d 314, 325 (5th Cir. 2002) (quoting
County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). The plaintiff must
therefore demonstrate that the abuse of power by the state official “shocks the
conscience.” Id. at 326 (quoting County of Sacramento, 523 U.S. at 846). Here,
even if the City granted access unequally, this decision was not so arbitrary as
to “shock the conscience,” especially given the circumstances surrounding
enforcement of the Order. As such, Plaintiffs do not state a viable substantive
due process claim and the district court did not err in dismissing this claim.
      Plaintiffs also argue that the Order was unconstitutionally vague. The
Fourteenth Amendment’s guarantee of Due Process proscribes laws so vague
that persons “of common intelligence must necessarily guess at [their] meaning
and differ as to [their] application.” Women’s Med. Ctr. v. Bell, 248 F.3d 411, 421
(5th Cir. 2001) (citing Smith v. Goguen, 415 U.S. 566, 572 (1974)). However, as
the Order has been repealed, this facial challenge to the statute is moot. See,
e.g., Nat’l Mining Ass’n v. United States DOI, 346 U.S. App. D.C. 192 (D.C. Cir.
2001) (holding that because regulations had been amended the plaintiff’s
vagueness challenge was moot and any opinion regarding the former regulations
would be merely advisory); McCorvey v. Hill, 385 F.3d 846, 849 (5th Cir. 2004)
(“Suits regarding the constitutionality of statutes become moot once the statute
is repealed.”).
      F.     Fourth Amendment Claim

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                                  No. 06-31122

      The summary judgment record contains evidence relating to only one
possible Fourth Amendment claim – the arrest and detention of Lange. The
summary judgment record contains no evidence that any of the other Plaintiffs
were subjected to illegal searches and seizures; in fact, by their own admissions,
the other Plaintiffs were not even present in the City during the period that the
Order was allegedly enforced through the illegal searches and seizures.
      With respect to Lange’s Fourth Amendment claim, the record contains
Lange’s affidavit, which sets forth the following facts and circumstances of his
detention. The affidavit indicates that on September 8, 2005, a Louisiana state
trooper spotted Lange on his fire escape. The trooper, accompanied by seven
California Highway Patrol officers, then climbed the fire escape and drew his
weapon. The trooper ordered Lange to vacate his residence and accompany the
officers to the New Orleans Convention Center. Lange was taken by Army truck
to the Convention Center and searched. He was not arrested, and after a brief
detention was released and was able to return to his home.
      As noted above, a municipality may be held liable under § 1983 when its
official policies or customs violate the Constitution. Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690-91 (1978); see also Pineda v. City of Houston, 291 F.3d
325, 328 (5th Cir. 2002) (noting that a plaintiff may establish municipal liability
under § 1983 by establishing “[a] persistent, widespread practice of city officials
or employees which, although not authorized by officially adopted and
promulgated policy, is so common and well settled as to constitute a custom that
fairly represents municipal policy.”). However, a municipality will not face
liability under a respondeat superior liability theory. Monell, 436 U.S. at 691.
Thus, even if Lange’s search and seizure was unconstitutional, the City is not
liable unless its customs or policies caused the unconstitutional search and
seizure. Id. at 690.    Although Plaintiffs produced evidence that the City
instructed law enforcement officials to evacuate people from the City, Lange was

                                        12
                                  No. 06-31122

not evacuated and the record contains no evidence that the City had a policy
authorizing law enforcement to unlawfully search and detain people within the
City. Plaintiffs have failed to demonstrate the “requisite degree of culpability”
and that there exists “a direct causal link” between the municipal action and the
alleged rights violation. See Bryan County v. Brown, 520 U.S. 397, 404 (1997).
To hold the City liable for the unconstitutional actions of the arresting officer –
not even a party to the present lawsuit – would be holding the City liable under
a respondeat superior theory, which the Supreme Court has explicitly rejected.
Monell, 436 U.S. at 690-91; see also Bryan County, 520 U.S. at 410 (“To prevent
municipal liability for a hiring decision from collapsing into respondeat superior
liability, a court must carefully test the link between the policymaker’s
inadequate decision and the particular injury alleged.”). The district court’s
grant of summary judgment to the City was proper.
      The record contains no evidence directly linking Ebbert to the alleged
violation of Lange’s Fourth Amendment rights, so the district court was correct
to dismiss this claim as well.
                                      ****
      Therefore, because Plaintiffs failed to demonstrate a constitutional
violation, we affirm the district court’s grant of summary judgment to all
Defendants with respect to Plaintiffs’ claims for declaratory and injunctive relief,
equal protection, procedural due process, and substantive due process. With
respect to Plaintiffs’ Fourth Amendment claims, the record contains no evidence
that either Reynolds or the Schmalzes were subject to any searches or seizures;
they therefore fail to state a constitutional claim and the grant of summary
judgment with respect to their Fourth Amendment claim was proper. With
respect to Lange’s Fourth Amendment claims against the City, summary
judgment was proper because Plaintiffs failed to demonstrate that Lange’s
injury occurred pursuant to a municipal policy or custom. The record contains

                                        13
                                    No. 06-31122

no evidence linking Ebbert to Lange’s Fourth Amendment claim; thus, Lange
failed to demonstrate that Ebbert violated his constitutional rights and
summary judgment was proper.5
III.    District Court’s Denial of Plaintiffs’ Motion for a Continuance
       Federal Rule of Civil Procedure 56(f) authorizes the district court to grant
additional time for discovery when a summary judgment motion has been filed
prematurely. “To obtain a continuance of a motion for summary judgment, a
party must specifically explain both why it is currently unable to present
evidence creating a genuine issue of fact and how a continuance would enable
the party to present such evidence.” Access Telecom, Inc. v. MCI Telecomms.
Corp., 197 F.3d 694, 719 (5th Cir. 1999). This Court reviews the district court’s
denial of a continuance for additional discovery under the abuse of discretion
standard and “will affirm that denial unless it is arbitrary or clearly
unreasonable.” Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 721 (5th Cir.
1995).
        We find no abuse of discretion in this case. Plaintiffs argue that additional
time for discovery was needed and that the additional discovery would have
defeated the summary judgment motion, and cite fourteen areas where such
additional discovery is needed. However, in opposing summary judgment, the
Plaintiffs failed to even produce that evidence which was within their control,
such as the affidavits or testimony of Reynolds and the Schmalzes. Further,
much of the additional evidence requested by Plaintiffs is irrelevant to their
claims. Finally, Plaintiffs fail to point to specific instances of material fact that
the additional evidence would establish and that would preclude the grant of
summary judgment to the Defendants. For these reasons, the district court’s



        5
        Because Plaintiffs have stated no cognizable claim against Ebbert, we need not
examine whether he is entitled to qualified immunity.

                                          14
                                      No. 06-31122

decision to deny Plaintiffs’ request for additional discovery was not “arbitrary or
clearly unreasonable.” Id.6
IV.    District Court’s Denial of Plaintiffs’ Motion for Class Certification
       Plaintiffs moved to certify two classes of plaintiffs: (1) Plaintiffs Reynolds
and Mr. & Mrs. Schmalz sought to be certified as representatives of a class
consisting of all persons who resided in unflooded areas of the City and who
suffered property loss as a result of being denied entry to the City after the
storm and (2) Plaintiff Lange sought to be certified as a representative of a class
consisting of persons who resided in unflooded areas of the City and were
illegally arrested or suffered illegal searches and seizures due to the Order. The
district court denied this motion. “[T]he district court maintains substantial
discretion in determining whether to certify a class action,” and this court
reviews such a determination only for abuse of discretion. Allison v. Citgo
Petroleum Corp., 151 F.3d 402, 408 (5th Cir. 1998).
       Plaintiffs sought class certification pursuant to Federal Rule of Civil
Procedure 23, under which plaintiff must satisfy four requirements: numerosity,
commonality, typicality, and adequate representation. FED. R. CIV. P. 23(a). The
district court, after conducting a rigorous analysis of the requirements of Rule
23, found that class certification was inappropriate because the proposed class
definitions were nebulous and because there were not common issues of liability
and damages. The district court did not err in this conclusion. It is clear that
the individual issues of class members, such as damages, causation, and
liability, would predominate over the common ones. As such, it was not an abuse
of discretion for the district court to deny Plaintiffs’ motion for class certification.
V.     Conclusion

       6
       Plaintiffs also argue that they needed additional time because the Defendants’ motion
was untimely filed. This argument is meritless, as the docket indicates that Defendants’
motion was timely filed on September 12, 2006, fifteen days before the hearing date of
September 27, 2006. See E.D. La. Local R. 7.2E.

                                            15
                                   No. 06-31122

      For the reasons set forth above, we AFFIRM the district court’s grant of
summary judgment to Defendants, AFFIRM the district court’s denial of
Plaintiffs’ motion for a continuance, and AFFIRM the district court’s denial of
Plaintiffs’ motion for class certification.




                                         16
