                 United States Court of Appeals,

                          Fifth Circuit.

                           No. 93-2719.

 John T. ENGSTROM, and Lyndia Engstrom, Individually and as next
friends for Andrea Engstrom, John T. Engstrom, Melissa Engstrom and
Cynthia Engstrom, Etc., et al., Plaintiffs-Appellants, Cross-
Appellees,

                                v.

The FIRST NATIONAL BANK OF EAGLE LAKE, Defendant-Appellee, Cross-
Appellant.

                         March 29, 1995.

Appeals from the United States District Court for the Southern
District of Texas.

Before JONES and STEWART, Circuit Judges, and DUPLANTIER*, District
Judge.

     STEWART, Circuit Judge:

     John T. Engstrom and his family appeal the judgment of the

district court dismissing their claims under the Soldiers' and

Sailors' Civil Relief Act, 50 U.S.C.App. §§ 501-593 against the

First National Bank of Eagle Lake ("First National").         First

National has filed a cross-appeal of the district court's judgments

to allow the original complaint to be amended and to remand the

state law claims to state court.     For the following reasons, the

judgments of the district court are affirmed.

                            BACKGROUND

     John T. Engstrom operated a rice farm in Texas.   His farm was

financed by the First National Bank of Eagle County. Engstrom owed


     *
      District Judge of the Eastern District of Louisiana,
sitting by designation.

                                1
approximately $412,600 to First National.         Part of this debt was

secured by the equipment used on the farm.            In October 1989, John

Engstrom was called to active military duty and was deployed to the

Middle East.     Prior to his departure, Engstrom made arrangements

with First National for a neighbor, James Clipson, to carry out the

orderly   sale   of   Engstrom's   equipment,    as    necessary,    to   meet

payments due on the outstanding loans.          Engstrom met with Travis

Wegenhoft, First National's vice president, and obtained First

National's consent to sell the equipment at private sales and to

apply the sales proceeds to the loan balances.              Some pieces of

equipment were sold as a result of private sales, but on January

26, 1991, most of the equipment was sold at auction.

     The equipment was moved to the auction site by Clipson.               Sam

Thompson, a senior vice president with First National, contacted

the auctioneer and arranged a location for the auction.             Equipment

belonging to Engstrom and other farmers in the area was auctioned.

Both Mr. Thompson and Wegenhoft were present at the auction.

Following the auction, Mr. Wegenhoft signed Mr. Engstrom's name to

the checks for Engstrom's portion of the proceeds, and had the

proceeds applied to Engstrom's outstanding debt.

     Tom Engstrom and Lyndia Engstrom, individually and on behalf

of their children Andrea Engstrom, John T. Engstrom, Melissa

Engstrom and Cynthia Engstrom d/b/a JTE Farms Joint Venture, and

Coltair Farms, Inc. (collectively "Engstrom") filed suit in state

court alleging that First National had violated the strictures of

the Soldiers' and Sailors' Civil Relief Act ("Relief Act") which


                                     2
forbid the sale of the property during a military personnel's

service period without a court order.           He also filed pendent state

claims.   First National removed the suit to federal court.

      First National filed a motion for summary judgment contending

that it had not violated the Relief Act.              Engstrom also filed a

motion to amend his complaint.             The district court granted both

motions and then remanded the state law claims to state court.

Engstrom appeals the judgment of the district court dismissing his

federal claims; First National has filed a cross-appeal contending

that the district court erred in allowing Engstrom to amend his

complaint.

                            STANDARD OF REVIEW

      This    Court   reviews   a   district    court's   grant    of   summary

judgment de novo.       Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th

Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 82, 121 L.Ed.2d 46

(1992).      Summary judgment under Fed.R.Civ.P. 56(c) is proper "if

the   pleadings,      depositions,    answers    to   interrogatories,      and

admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law."

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552,

91 L.Ed.2d 265 (1986).          If the moving party meets the initial

burden of showing that there is no genuine issue of material fact,

the burden shifts to the non-moving party to produce evidence or

designate specific facts showing the existence of a genuine issue

for trial.      Id. at 322-24, 106 S.Ct. at 2552-53;              Fed.R.Civ.P.


                                       3
56(e).

         A defendant who moves for summary judgment may rely on the

absence      of   evidence   to    support     an    essential   element    of    the

plaintiff's case.        International Ass'n of Machinists & Aerospace

Workers, Lodge No. 2504 v. Intercontinental Mfg. Co., 812 F.2d 219,

222   (5th    Cir.1987).        There   must    be    evidence   giving    rise    to

reasonable inferences that support the non-moving party's position.

St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir.1987).

                                    DISCUSSION

       Engstrom contends that the district court erred in dismissing

his claims under the Soldiers' and Sailors' Civil Relief Act 50

U.S.C.App. §§ 501-593.          ("Relief Act").       The purpose of the Relief

Act is to suspend enforcement of civil liabilities of persons in

the military service of the United States in order to enable such

persons to devote their entire energy to the defense needs of the

Nation. 50 U.S.C.App. § 510.            The Relief Act applies to servicemen

and reservists who are ordered to report for military service.                    See

50 U.S.C.App. §§ 511 & 516.          The provision of the Relief Act are to

be liberally construed.           Koons v. Nelson, 113 Colo. 574, 160 P.2d

367, 372 (1945).       Although the act is to be liberally construed it

is not to be used as a sword against persons with legitimate

claims.      Slove v. Strohm, 94 Ill.App.2d 129, 236 N.E.2d 326, 328

(1968).      The Relief Act is to be administered as an instrument to

accomplish        substantial     justice     which     requires   an     equitable

consideration of the rights of parties to the end that their

respective interests may be properly conserved. New York Life Ins.


                                          4
Co. v. Litke, 181 Misc. 32, 45 N.Y.S.2d 576, 582 (1943)

         Amongst the Relief Act's many provisions is a prohibition

against    the    sale   or   foreclosure    of     a    serviceman's     mortgaged

property in 50 U.S.C.App. § 532.            The pertinent provisions of 50

U.S.C.App. § 532 are as follows:

     (3) No sale, foreclosure, or seizure of property for
     nonpayment of any sum due under any such obligation, or for
     any other breach of the terms thereof ... shall be valid if
     made during the period of military service or within three
     months thereafter.... [emphasis ours].

This provision applies to obligations incurred before or during

military service.        50 U.S.C.App. § 532(2).              A serviceman can give

a written release to allow for the sale or foreclosure of his

property.     See 50 U.S.C.App. §§ 517 & 532(3).                The Relief Act also

allows    agents    authorized    under     state       law    to   dispose   of   the

serviceman's property.          See Pailet v. Ald, Inc., 194 So.2d 420

(La.Ct.App.1967).

     Engstrom argues that First National sold his farm equipment in

violation of the Relief Act.        As a reservist called to active duty,

Engstrom was undoubtedly a member of the class protected by the

Relief Act.      His obligation was incurred before he was called up to

active service and thus he meets the qualifying provision of 50

U.S.C.App. § 532(2).          The only question remaining is whether the

bank violated the act by selling the equipment.

     The summary judgment evidence submitted by the Bank and

Engstrom is as follows:         In the Fall of 1990, before John Engstrom

was called up to military service, the bank had written in its loan

reports that Engstrom's loans had to be moved or be liquidated.                     In


                                       5
his deposition, John Engstrom testified that before he left he

arranged with Clipson and Wegenhoft to sell some of his equipment

at private sale to pay some of the debt.   He also testified that he

told Clipson and Wegenhoft that his property was not to be sold at

auction.

     Clipson testified, in deposition, that he was the person who

gathered Engstrom's equipment together and sold it at the auction.

He also testified that John Engstrom had given him permission to

sell the equipment when Engstrom had temporarily returned from the

service one weekend.   Clipson also stated that he obtained the

permission of the bank to sell the property.     In his deposition,

Wegenhoft testified that he had not directed the equipment to be

sold.   He stated that it was his understanding that Engstrom had

given his permission to Clipson to sell the equipment at auction.

     In the bank's loan reports is this November 30, 1992 statement

about the status of the loan:

     ACTION PLAN: Have arranged for Jim Clipson, Jr. to sell all
     equipment. Rent house is for sale. Will suggest lowering
     price close to values used here.

     STATUS: Have an appraisal of equipment from local dealer and
     proceeding to sell equipment. Anything not sold will go into
     bank's equipment auction in late January.

The bank arranged the auction, signed off on some of the bills of

sale, and signed John Engstrom's name to the checks in order to

apply the auction proceeds to the debt.

     The summary judgment evidence submitted to the district court

demonstrates that it was Clipson, not First National, that placed

Engstrom's equipment in auction.    Clipson gathered the equipment


                                6
together, took it to the auction, and sold it.            Clipson testified

that he thought that he had Engstrom's permission to sell the

equipment at auction:

Q Was it Travis [Wegenhoft] that asked you to go ahead and bring
     the equipment [to auction].

A No, John [Engstrom] asked me to do it.

First   National     also   thought   that    Engstrom   had    given   Clipson

permission to sell the equipment at auction:

Q So, the bank didn't sell it at the auction sale.

A No.

Q Who did?

A John Engstrom instructed Jim Clipson to deliver it to the sale.
     Well, that's my understanding; but from here it sounded like
     John Engstrom's folks were to deliver it.

The testimony is uncontradicted that Clipson sold the equipment

with, what First National and Clipson thought was, Engstrom's

permission.

     Although       Engstrom   produced    evidence   that     First    National

acquiesced in the sale of the equipment and that it organized the

auction, First National is not liable under the Relief Act for

selling the equipment for several reasons.               First, as we have

stated above, First National thought that Clipson had Engstrom's

permission to sell the equipment.            See Pailet, 194 So.2d at 423

(holding     that    duly   authorized       representatives     may    sell   a

serviceman's property).         Second, Engstrom submitted no summary

judgment evidence inferring that Clipson was an agent of the bank,

which could impute Clipson's action to the bank, when the equipment

was sold.    Third, we have found no authority indicating that First

                                       7
National's acquiescence to Clipson's sale of the equipment or that

First National's organization of the auction where the equipment

was sold makes it liable under the Relief Act.1

         In his brief, Engstrom strenuously argues that Clipson did

not have permission to sell his equipment.              He points to his own

deposition and affidavits in which he unequivocally denies giving

Clipson permission to sell the equipment.               However, for summary

judgement purposes, assuming arguendo that Clipson did not have the

authority to sell the equipment at auction, such lack of authority

would only give Engstrom a potential action against Clipson who is

not a party to the lawsuit.           As noted by the District Court,

Engstrom's proof fails to establish liability of First National

under the Relief Act.

                                CROSS-APPEAL

         First National contends that the district court erred in

allowing Engstrom to amend his complaint.               The amendments added

claims under the Texas Deceptive Trade Practices Act, the Texas

Uniform Commercial      Code,   and   a   claim   for    negligence.    First

National argues that because the additional causes of action were

dependent    on   the   allegations   that    the   bank    sold   Engstrom's

equipment, it was futile for the district court to allow the

amendments.

         The Federal Rules of Civil Procedure provide that, after an


     1
      Engstrom argues that First National is liable under 50
U.S.C.App. § 532(4) of the Relief Act for "mak[ing or caus[ing]"
a sale to be made. This section of the Relief Act is a criminal
statute and is not apropos to this discussion.

                                      8
answer has been filed, "a party may amend the party's pleading only

by leave of court" and that "leave to amend shall be freely given

when justice so requires."   Fed.R.Civ.P. 15(a).   In the absence of

... undue prejudice to the opposing party by virtue of allowance of

the amendment, futility of amendment, etc.—the leave sought should,

as the rules require, be "freely given."   Foman v. Davis, 371 U.S.

178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).       This Court

reviews a district court's denial of leave to amend a complaint for

abuse of discretion.   Avatar Exploration Inc. v. Chevron, U.S.A.,

Inc., 933 F.2d 314, 320 (5th Cir.1991).

     In the amendments, Engstrom states that First National could

be liable under the Texas Deceptive Trade Practices Act.   This Act

defines an unconscionable act as any act which takes advantage of

the lack of knowledge, ability, experience, or capacity of a person

to a grossly unfair degree.    Tex.Bus. & Com. § 17.45.    Engstrom

states that even if it was true that First National did not sell

his equipment in auction, First National still knew before the sale

that (1) the equipment was going to be sold and (2) the sale was

contrary to his wishes and instructions.

     In brief, Engstrom argues that First National could have

committed a unconscionable act in taking advantage of his lack of

knowledge, ability, experience, or capacity when it did not prevent

the sale even though it had every right and opportunity to do so.

The district court considered these claims under the factors

enunciated in Foman and allowed the amendments.    After thoroughly

examining the record and the applicable law, we find no abuse of


                                 9
the district court's discretion in granting the motion to amend.

We therefore find this contention to be without merit.

         First National also contends that the district court erred in

remanding the remaining state law claims to state court.2         The

general rule is that state claims should be dismissed once the

basis for federal jurisdiction has been dismissed.           Parker &

Parsley Petroleum v. Dresser Industries Inc., 972 F.2d 580, 585

(5th Cir.1992). The factors to be addressed in determining whether

to retain jurisdiction once the federal claims have been disposed

of are judicial economy, convenience, fairness, federalism, and

comity.     See, e.g., Newport Ltd. v. Sears, Roebuck & Co., 941 F.2d

302, 307 (5th Cir.1991), cert. denied, 502 U.S. 1096, 112 S.Ct.

1175, 117 L.Ed.2d 420 (1992);           Parker & Parsley Petroleum v.

Dresser Industries Inc., 972 F.2d 580, 585 (5th Cir.1992).

     Although this case has been pending for three years and the

parties were in the midst of trial preparation, the amount of

judicial resources that were invested into this case, as noted by

the district court, has been remarkably small.        Since there has

been no substantial commitment of judicial resources and the

remaining claims can be routinely resolved, the district court did

not abuse its discretion by remanding the remaining state claims to

state court.     See Parker & Parsley, 972 F.2d at 587.


     2
      We note that we have jurisdiction over the district court's
decision to remand this case. In a case where the district court
has the discretion over whether to remand a case, such as the
instant case, we have the power to review the district court's
decision on appeal. Hook v. Morrison Milling Co., 38 F.3d 776,
780 (5th Cir.1994).

                                   10
                            CONCLUSION

     Because there is clear evidence that First National Bank of

Eagle Lake did not seize and sell Engstrom's property, the judgment

of the district court dismissing Engstrom's Soldiers' and Sailors'

Relief Act claims is AFFIRMED.   The judgment of the district court

granting Engstrom's motion to amend complaint is AFFIRMED.     The

judgment of the district court remanding this case to state court

is also AFFIRMED.




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