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            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT

                                          ___________

                                         No. 14-30423
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                         ___________                             FILED
                                                                           March 31, 2015
                                                                            Lyle W. Cayce
JAMES JOHNSON,                                                                   Clerk

                        Plaintiff – Appellant

v.

PPI TECHNOLOGY SERVICES, L.P.,

                        Defendant – Appellee

                                __________________________

                     Appeals from the United States District Court
                         for the Eastern District of Louisiana
                                USDC No. 2:11-CV-2773
                              __________________________

Before JOLLY and DENNIS, Circuit Judges, and RAMOS *, District Judge.
PER CURIAM:**†
       On November 8, 2010, Appellant James Johnson (Johnson) was
working as a drilling superintendent off the coast of Nigeria on an oil rig
affixed to the HIGH ISLAND VII. According to Johnson, Nigerian gunmen
boarded the rig using stairs that rig employees had left extended in violation


       *   District Judge of the Southern District of Texas, sitting by designation.

       ** 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not be published and is not precedent except under the limited circumstances set forth in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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of security precautions. The gunmen shot Johnson in the leg, causing severe
damage to his leg and requiring months of hospitalization, numerous
surgeries, and a knee replacement, leaving him with limited mobility. On
November 8, 2011, Johnson filed a complaint seeking remedies under the
Jones Act, 46 U.S.C. § 30104, and general maritime law against various
corporate entities, including PPI Technology Services, L.P. (PPI Tech).
      At issue in this appeal is Johnson’s claim that PPI Tech was his
employer and owed duties in negligence to Johnson. The District Court Chief
Judge, Sarah S. Vance, denied PPI Tech’s motion to dismiss on the employer
issue after converting it to a summary judgment motion and finding that
there were disputed issues of material fact. After two years and extensive
discovery, PPI Tech filed a second motion for summary judgment with
additional evidence, reurging its argument that it was not Johnson’s
employer.   Judge Carl Barbier, to whom the case had been reassigned,
granted PPI Tech’s motion.
      Johnson appeals, raising three issues. He claims that the trial court
erred in (1) reconsidering the employment relationship on a second summary
judgment after the first such motion was denied; (2) finding as a matter of
law that PPI Tech was not his employer; and (3) refusing to allow him to
amend his complaint to join a new defendant as his employer. Because we
find no error or abuse of discretion, we affirm.
                                       I.
            SUCCESSIVE SUMMARY JUDGMENT MOTIONS
      Johnson contends that Judge Barbier should have treated Chief Judge
Vance’s prior holding—that material fact issues precluded summary
judgment on PPI Tech’s status as Johnson’s employer—as a final one,
permitting him to take the issue to the jury. PPI Tech responds that it was


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appropriate to consider a second motion because the parties had, in the
meantime, conducted extensive discovery with every opportunity to develop
evidence that had not been submitted with the first motion.
      We treat such matters as falling within a trial court’s discretion to
control its docket. Enlow v. Tishomingo Cnty., Miss., 962 F.2d 501, 507 (5th
Cir. 1992) (the timing and sequence of motions, including successive
summary judgment motions, best lies at the district court’s discretion). That
discretion may be exercised whether or not new evidence is submitted with
the subsequent motion. Id. at 506 (permitting successive motion on expanded
record); Hudson v. Cleco Corp., 539 F. App’x 616, 617-18 (5th Cir. 2013)
(subsequent motion allowed, despite lack of new evidence).
      The trial court’s discretion to make these decisions regarding the
manner in which the case proceeds is not limited by a prior judge’s
participation in the case. Thus, despite another judge’s earlier decision, the
matter may be reconsidered and decided differently. Cannon v. Principal
Health Care of La., Inc., 87 F.3d 1311, *1 (5th Cir. 1996) (per curiam)
(unpublished) (refusing to apply the “law of the case” to bar reconsideration of
a motion accompanied by new evidence when the first motion was denied by a
different judge).    We therefore hold that Judge Barbier acted within his
discretion to consider PPI Tech’s second motion for summary judgment
despite the fact that Chief Judge Vance had already denied a summary
judgment motion on the same issue.
                                      II.
                         PPI TECH AS EMPLOYER
   A. Standard of Review
      We review the granting of summary judgment de novo. Cal-Dive Int’l,
Inc. v. Seabright Ins. Co., 627 F.3d 110, 113 (5th Cir. 2010).        Summary


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judgment should be affirmed when the evidence, viewed in the light most
favorable to the non-movant, shows that there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law.
Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 809 (5th Cir. 1991);
Fed. R. Civ. P. 56(c). Here, the operative facts are not in dispute, although
their legal significance is contested.
   B. Facts
      Afren 1 was responsible for operating the drilling rig on the HIGH
ISLAND VII. Afren contracted with PPI Technology Services Nigeria (PPIN)
to provide drilling services on the rig, including furnishing skilled and
professional workers. PPIN met its contractual obligations to Afren through
a Consulting Services Agreement (CSA) with Petroleum Services Limited
(PSL) and PPI Tech.         According to the CSA, PPI Tech would provide a
number of support services to PSL for use in PPIN’s business and operations,
including furnishing employees skilled in engineering support, project
management support, quality assurance, materials and logistical support,
and training.
      In return, PPIN agreed to pay a monthly fee to PPI Tech, along with a
fee equal to “actual employee cost” plus fifteen percent and reimbursement of
expenses for personnel supplied to PSL for PPIN’s operations. From those
payments, PPI Tech transferred to PSL the amount to be paid to the
employees. Further illustrating the relationship between PPIN, PSL, and
PPI Tech, the CSA provided that PPIN and PSL would indemnify PPI Tech
for all claims brought by PPIN’s or PSL’s employees for bodily injury or

      1   The record reflects that more than one corporate entity bearing the “Afren” name
may have been involved in the drilling operations at issue in this case. The exact
relationship of the various Afren companies is unclear. However, for purposes of this
opinion, we need not distinguish them and thus use the name generically, as was done in
the Johnson Agreement, described within.
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property damage.     They would also indemnify PPI Tech for all claims of
patent infringement for the use of equipment, tools, and methods of
operations. Contractually, PPI Tech acted in relevant part as an employment
agency for PPIN and PSL, staffing PPIN’s jobsite.
      To fulfill its staffing obligations to PPIN and PSL, PPI Tech
representative, John Arriaga, recruited Johnson to work on the drilling rig in
Nigeria.   Explaining that they run their “international guys” through a
separate corporation, PPI Tech administrative assistant, Sandra Berkline,
had Johnson sign a Consulting Agreement (Johnson Agreement) with PSL.
Later, with PSL’s consent, Johnson substituted his wholly-owned company,
Global Oil Consulting, LLC (Global Oil), as the party contracting with PSL on
his behalf. The Johnson Agreement describes the arrangement as follows:
                  WHEREAS, [Johnson/Global Oil] is engaged in
            an independent business related to services to be
            performed on behalf of [PSL]; and
                   WHEREAS, [PSL] is engaged in a third-party
            international onshore and offshore development
            project in West Africa (“Project”) performing services
            for its customer (“Client”); and
                  WHEREAS, the parties desire to enter into a
            service relationship to be governed by the terms and
            conditions set forth herein;
                  NOW THEREFORE, in consideration of the
            mutual promises set forth herein, the sufficiency of
            which is hereby acknowledged, the parties agree as
            follows:
               1. Services.
                    Commencing on the Effective Date, [Johnson/
            Global Oil] agrees to perform the usual and general
            services customary in the oil and gas industry of Well
            Site Supervisor on an international project team, on
            behalf of [PSL], and to perform work as directed from
            time to time by [PSL] and its Client. Your services
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              have been contracted to Afren. You will get your
              instructions, duty charges, job responsibilities, etc.
              from Afren. You will be expected to adhere to Afren
              rules and regulations at all times during periods of
              compensation, i.e. from the time you board the plane
              to come to Nigeria until you disembark from the
              plane in your home country.

PSL agreed to pay Johnson a daily rate, reimburse out of pocket expenses,
and provide medical coverage.          According to the Johnson Agreement, the
parties agreed that Johnson was an independent contractor and not a PSL
employee and that he had sole control over the manner and means of
performance under the Agreement.
       A number of the facts to which Johnson testified are entirely consistent
with viewing PPI Tech as an employment recruiter and administrator
according to the respective terms of the CSA and Johnson Agreement. After
Arriaga 2 recruited him for the PSL/Afren position, Birkline coordinated all
administrative matters, such as his travel to and from Nigeria, and his
insurance claims following the injury.           PPI Tech handled the logistics of
documenting Johnson’s time and getting him paid through PSL. PPI Tech
also supplied Johnson with a PPI Tech email account for his use while on the
job in Nigeria. After Johnson’s injury, Scott Kirklin, general counsel for PPI
Tech, assured Johnson that the medical insurance procured by PSL would be
required to pay for his treatment.
       However, Johnson also testified that three apparent PPI Tech
employees, Ron Thomas, Galan Williams, and Jack Rankin, interacted with
and supervised him while on the rig on a daily basis. They used PPI Tech
email accounts and had signature lines indicating that they were officers of


       2  Arriaga’s email signature lists him as Project Coordinator, PPI Technology
Services, with “713” area code phone numbers and a “ppitech.net” email address.
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PPI Tech. In particular, Thomas was represented to be an engineer, a co-
founder of PPI Tech, and its President, working out of the Houston, Texas
PPI Tech office. Williams was represented as Vice-President for Contracts
Administration for PPI Tech, working out of the Houston, Texas office. And
Rankin’s email signature listed him as “Afren Energy Ebok Development
Project PPI Technology Services.”
      PPI Tech does not dispute that Thomas, Williams, and Rankin
supervised Johnson, but it claims that they did not do so in any PPI Tech
capacity.   Instead, Thomas, a member of the PPIN Board of Directors,
testified that he was a drilling advisor supplied by PPIN to Afren, and was
paid by CIMA Management.       He also testified that Williams and Rankin
were project managers supplied by PPIN to Afren, with duties governed by a
contract between PPIN and Afren.         Williams testified that he was a
consultant supplied by PSL to PPIN. He charged PSL for his services, PSL
charged PPIN, and PPIN charged Afren. While these men held offices in PPI
Tech, their supervision of Johnson was not related to the business of PPI
Tech, which functioned as an employment agency with administrative duties,
but was for PPIN and Afren, which functioned as drilling operators.
      Ultimately, Johnson’s duties, along with those of Thomas, Williams and
Rankin, were controlled by a well plan belonging to Afren. In that respect,
PPIN had secured their services for Afren’s project.      According to Kent
Schwarz, the managing director for PPIN, PPI Tech had no presence or
employees in Nigeria or on the HIGH ISLAND VII. PPI Tech did not direct
or control any of the drilling operations.    Johnson’s position, generally
referred to as “company man,” was the highest ranking worker on the rig,
representing Afren.




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   C. Discussion
      The Jones Act confers upon a seaman the right to sue his employer for
negligence resulting in personal injury. 46 U.S.C. § 30104. According to his
contract, Johnson (through Global Oil) was employed by PSL to work for
Afren.   To sustain Johnson’s argument that he was PPI Tech’s employee
despite his nominal, contractual relationships, he must be able to
demonstrate that he was a borrowed servant of PPI Tech.            “An injured
worker may show that he was a borrowed servant at the time of his injury by
establishing that the employer against whom recovery is sought ‘had the
power to control and direct the (servant) in the performance of (his) work.’”
Baker v. Raymond Int’l, Inc., 656 F.2d 173, 178 (5th Cir. 1981) (citing Gaudet
v. Exxon Corp., 562 F.2d 351, 355 (5th Cir. 1977)).
      District courts decide the borrowed employee issue as a matter of law if
sufficient factual issues are undisputed. Capps v. N.L. Baroid-NL Indus.,
Inc., 784 F.2d 615, 617 (5th Cir. 1986). “We will not insist upon expense and
delay of a trial if the overall issue can be resolved through a preponderance of
other factual matters not in dispute.” Gaudet, 562 F.2d at 358. The following
nine factors, commonly referred to as the Ruiz factors, are used to determine
when an employer has borrowed a servant:
            1. Who has control over the employee and the work they are
               performing, beyond mere suggestion of details or cooperation?
            2. Whose work is being performed?
            3. Was there an agreement, understanding, or meeting of the
               minds between the original and the borrowing employer?
            4. Did the employee acquiesce in the new work situation?
            5. Did the original employer terminate his relationship with the
               employee?
            6. Who furnished tools and place for performance?
            7. Was the new employment over a considerable length of time?
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            8. Who had the right to discharge the employee?
            9. Who had the obligation to pay the employee?

Id. at 355 (citing Ruiz v. Shell Oil Co., 413 F.2d 310, 312-13 (5th Cir. 1969)).
No single factor is determinative and we look to the “venture as a whole.” See
Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 795 (1949).
      The district court held that all but one of the Ruiz factors—the right to
terminate the employment relationship (factor 8)—weighed against a finding
that Johnson was PPI Tech’s borrowed servant. Johnson only contests the
district court’s conclusions pertaining to three additional factors (factors 1, 2,
and 3), discussed below.       He argues that those four factors, together,
dominate the determination under Ruiz and defeat PPI’s requested summary
judgment and, at least, entitle him to a jury determination of the issue.
      Factor 1: Control. Thomas, Williams, and Rankin clearly controlled
Johnson and his work. The question is whether they did so in their capacity
as officers of PPI Tech or as consultants procured by PPIN to work for Afren.
The Johnson Agreement provided that Johnson was employed by PSL to
work for Afren. The supervision imposed by Thomas, Williams, and Rankin
was related to Afren drilling operations. Afren had no relationship with PPI
Tech and relied only on PPIN to supply professional manpower such as that
offered by Johnson. All of these facts militate against a finding that PPI Tech
was in control.
      The only evidence to the contrary is Johnson’s subjective belief that his
supervisors were supervising on behalf of PPI Tech because they had some
association with PPI Tech. Johnson’s confusion, resulting from a complex
business structure involving multiple corporate entities in international
operations, is insufficient to create a fact issue for the jury to decide. Baker,



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656 F.2d at 173 (reversing a jury finding in favor of the employee under
substantially similar facts).
      PPI Tech was not in the business of oil and gas drilling. Instead, it was
in the business of recruiting employees and handling administrative tasks
associated with those hires. Johnson was not employed to recruit others or to
act as an administrative assistant. The district court found that the facts
here do not support a finding that PPI Tech had control over Johnson and the
work he was performing. We agree.
      Factor 2: Whose Work. As already discussed, Johnson was performing
Afren’s work on the HIGH ISLAND VII, as Afren owned the rights to the
minerals it sought to extract from the seabed and Johnson was the company
man on the rig. The Johnson Agreement expressly provided that Johnson
was hired to do work for Afren, subject to Afren’s “instructions, duty charges,
job responsibilities . . . rules and regulations.” Johnson does not dispute this,
but suggests that some portion of the overall mission was parceled out to PPI
Tech, which he performed.
      But PPI Tech was not given a portion of the drilling operation to
perform. Instead, PPIN gave it the task of finding the people who could do
Afren’s work on Afren’s terms. PPIN’s Kent Schwarz testified clearly and
definitively that PPI Tech had no business, presence, or employees on the rig.
To find that Johnson was performing PPI Tech’s work would require Johnson
to be an employment agency administrator rather than a company man on a
drilling rig. Consequently, we agree with the district court’s determination
that this factor weighs against a finding that Johnson was PPI Tech’s
employee.
      Factor 3: Meeting of the Minds. The question is whether there was an
agreement, understanding, or meeting of the minds between the original or


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nominal employer and the borrowing employer as to the status of the
employee.   Johnson’s argument focuses on PPIN’s relationship with PPI
Tech. That relationship, defined by the CSA and including PSL, established
a meeting of the minds that PPI Tech would recruit workers for PPIN to
furnish to Afren. Nothing about the arrangements between them indicated
an agreement that Johnson would work for PPI Tech rather than for PPIN,
Afren, or PSL. Johnson’s argument is unsupported by evidence and we agree
with the district court that this factor weighs against a finding that Johnson
was PPI Tech’s employee.
     Factor 8: Right to Discharge. The district court found only one factor,
the right to discharge, slightly favored Johnson’s claim. PPI Tech disputes
this finding as inconsistent with the evidence showing that any decision
regarding Johnson’s supervision would be made pursuant to the powers
retained by PPIN and Afren over the drilling operations. The district court
acknowledged this aspect of control, but viewed the evidence in favor of
Johnson as the non-movant in the summary judgment procedure.
     The district court credited testimony that Randy Sullivan, the Chief
Executive Officer of PPI Tech, as well as a PPI Tech Country Manager, had
the power to discharge Johnson. Additionally, the district court noted that,
as a practical matter, any directive to discharge Johnson coming from PPIN
or Afren would likely have to be administered through PPI Tech employees.
We decline to disturb the district court’s finding on this factor. We further
concur with the district court’s assessment that the factor has only slight
weight when balancing the issues governing the determination of a borrowing
employer.
     Totality of the Circumstances.     Johnson did not contest the district
court’s findings as to the remaining five Ruiz factors. The trial court held


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that those factors supported a conclusion that PPI Tech was not Johnson’s
borrowing employer and we agree: (1) Johnson acquiesced in working for
PSL, PPIN, and Afren, although it likely went unnoticed that he was not
working for PPI Tech due to the complexity of the business structure; (2) PSL
did not terminate its relationship with Johnson during the employment
arrangement; (3) PPI Tech did not furnish tools and a place for performance
and was contractually absolved of responsibility therefor; (4) there was no
“new employment” to consider; and (5) PSL had the continuing obligation to
pay Johnson through Global Oil.
      In reviewing the evidence as a whole, and considering this Court’s
holding in Baker and the nine Ruiz factors, we hold that PPI Tech was not
Johnson’s borrowing employer as a matter of law. Johnson’s subjective belief
and his supervisors’ nominal positions with PPI Tech are insufficient to show
that genuine disputes exist over enough determinative facts to preclude
summary judgment.
                                     III.
                    MOTION FOR LEAVE TO AMEND
      In response to PPI Tech’s summary judgment motion, Johnson sought
leave to amend his complaint in order to name PPIN as a defendant.
Johnson argues that the district court abused its discretion because Rule 15
provides for the “liberal amendment” of pleadings. While the district court
did not squarely address Johnson’s request, the entry of the district court’s
order dismissing Johnson’s claims should be construed as an implicit denial
of any outstanding motion for leave to amend. Stokes v. Dolgencorp, Inc., 367
F. App’x 545, 549 (5th Cir. 2010) (citing Tollett v. City of Kemah, 285 F.3d
357, 369 n.* (5th Cir. 2002)).




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      A district court’s determination of whether to allow a party to amend
his pleadings is ordinarily reviewed under the abuse of discretion standard.
Wilson v. Bruks-Klockner, Inc., 602 F.3d 363, 368 (5th Cir. 2010). Pursuant
to Fed. R. Civ. P. 15(a), leave to amend “shall be freely given when justice so
requires.”   Leave to amend may be denied for undue delay, bad faith, or
dilatory motive and when the amendment would be futile—for instance when
the amended claim would not survive a Fed. R. Civ. P. 12(b)(6) review.
Foman v. Davis, 371 U.S. 178, 182 (1962); Stripling v. Jordan Prod. Co., LLC,
234 F.3d 863, 872-73 (5th Cir. 2000). When leave to amend is refused on the
sole basis that the amendment would be futile, review is de novo. Wilson,
602 F.3d at 368.
      We find that Johnson has not demonstrated that the district court
abused its discretion. The district court’s May 24, 2013 scheduling order was
entered over 18 months into the litigation and over 6 months prior to
Johnson’s motion. It prohibited any additional amendments to pleadings. It
was within the district court’s discretion to control its docket in this way. So
while Johnson complains that the case was not set for trial at the time of his
request, that argument disregards the additional delay attendant to joining a
new party and protecting that new party’s due process rights in the litigation.
See generally, Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 521
(5th Cir. 2010) (district courts have the discretion to refuse joinder in the
interest of avoiding prejudice and delay, ensuring judicial economy, or
safeguarding principles of fundamental fairness).          Johnson’s remaining
arguments regarding delay and prejudice reveal only a failed trial strategy
that does not define the limits of discretionary docket management.
      Additionally, PPI Tech argues that any amendment would have been
futile as a matter of law and it thus would have been an abuse of discretion to


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grant the request. In particular, PPI Tech recites, and Johnson does not
dispute, that a three-year statute of limitations period applies.        Johnson,
however, argues that his claim against PPIN would have related back to the
original filing of this case against PPI Tech. “Although the district court did
not address futility in its order, we may affirm for any reason supported by
the record, even if not relied on by the district court.”       United States v.
Gonzalez, 592 F.3d 675, 681 (5th Cir. 2009) (citing LLEH, Inc. v. Wichita
Cnty., Tex., 289 F.3d 358, 364 (5th Cir. 2002)). This Court reviews the futility
argument de novo.
      Whether an amended complaint relates back to an original complaint
against a new defendant for statute of limitation purposes is governed by
Fed. R. Civ. P. 15(c), which has been described as requiring the moving party
to satisfy the following elements:
            (1) [The claim] must arise from the same transaction
            or occurrence as the original pleading . . . and (2) . . .
            the party named in the amended pleading must have
            both received sufficient notice of the pendency of the
            action so as not to be prejudiced in preparing a
            defense, and have known or should have known that
            but for a mistake of identity the party would have
            been named in the original pleading.
Sanders-Burns v. City of Plano, 594 F.3d 366, 373 (5th Cir. 2010) (citation
omitted).
      Johnson’s claims against PPIN clearly arose out of the incident set
forth in the original complaint. But he did not demonstrate that his failure to
sue PPIN was a matter of mistake.
            The classic example of mistake is misnomer; that is,
            when a plaintiff misnames or misidentifies a party in
            its pleadings but correctly serves that party. In these
            cases, relation back is appropriate because the
            defendant is already before the court . . . . In some
            cases a legal mistake can lead to misnomer, as when
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            a plaintiff names an institutional defendant because
            of confusion as to whether an individual or an
            institutional defendant is the proper party, but the
            individual is properly served and, therefore, has
            notice of the mistake. In contrast, a conscious choice
            to sue one party and not another does not constitute a
            mistake and is not a basis for relation back.
Id. (emphasis added and citation omitted).      Johnson has not claimed any
mistake on his part concerning the identity of the proper party. Instead, his
arguments acknowledge that he had timely access to the identities of all
entities involved in the drilling venture and even included them in his
discovery efforts. Because Johnson has not demonstrated mistake, the Court
need not consider whether PPIN knew or should have known that, but for the
mistake, the litigation would have been filed against it.
      The district court did not err in failing or refusing to permit Johnson to
amend his pleading to assert his claims against PPIN.
                               CONCLUSION
      The district court’s summary judgment is in all respects therefore,
                                                                    AFFIRMED.




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