                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                           September 14, 2006
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk
                      ----------------------
                           No. 06-10150
                         Summary Calendar
                      ----------------------

JOSEPH TARANTINO

                     Plaintiff - Appellant

     v.

DAIMLERCHRYSLER FINANCIAL SERVICES AMERICAS LLC

                     Defendant - Appellee

                      -----------------------

           Appeal from the United States District Court
          for the Northern District of Texas, Fort Worth
                          No. 4:05-CV-569

                     ------------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     This suit grew out of the efforts of plaintiff-appellant

Joseph Tarantino to seek employment with defendant-appellee

DaimlerChrysler Financial Services Americas LLC (“DCS”) in 2003.

The efforts were unsuccessful and Tarantino sued DCS in state

court in Texas, alleging that DCS owed Tarantino, as a

“prospective employee,” a “duty to notify” him in a timely manner


     *
        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that this opinion should not be published and is not precedent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.
that he was declined for employment.   The case was removed to

federal court.   The district court dismissed Tarantino’s

complaint under FED. R. CIV. P. 12(b)(6) for failure to state a

claim, holding that, under the facts alleged, DCS had no legal

duty to Tarantino, as a prospective employee, under Texas law.

The district court’s Memorandum Opinion and Order addressed not

only the facts alleged in Tarantino’s complaint but also the

facts set out in Tarantino’s response to DCS’s motion to dismiss,

“[g]iving the plaintiff the benefit of every doubt.”

     On appeal, Tarantino’s brief continues to claim that he

could allege additional facts that would support an alternative

theory of recovery, but (assuming arguendo that setting such

facts out in his appellate brief would be timely) he fails to set

out what those facts are.   The main focus of his brief, however,

is on his argument that the district court abused its discretion

in denying Tarantino’s motion for leave to amend his pleading.

DCS points out that Tarantino’s only requested amendment was

included in the “Request for Relief” section of his district

court brief where he asked for permission to amend his complaint

if the district court were to determine that he failed to state a

claim.   Tarantino is correct that FED. R. CIV. P. 15(a) does allow

a plaintiff to amend its pleading once as a matter of course at

any time before a responsive pleading is filed.    His problem -

and it is a fatal problem - is that he never furnished the

district court with the substance of a proposed amendment other

                                 2
than to allege more facts and legal theories in his brief, facts

and theories which would not have prevented the dismissal of his

case.   Under the circumstances, the district court did not err in

failing to give Tarantino an opportunity to amend his pleading.

The theories he alludes to in his appellate brief would fare no

better.

     The judgment of the district court is AFFIRMED.




                                 3
