     Case: 16-10188      Document: 00513703729         Page: 1    Date Filed: 10/04/2016




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

                                    No. 16-10188                               FILED
                                  Summary Calendar                       October 4, 2016
                                                                          Lyle W. Cayce
                                                                               Clerk
C3PO INTERNATIONAL, LIMITED,

              Plaintiff - Appellant

v.

DYNCORP INTERNATIONAL, L.L.C.,

              Defendant - Appellee




                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:14-CV-564


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       DynCorp International, LLC. is a military contractor that provided
logistical support for the Department of Defense in Afghanistan.                            C3PO
International, Ltd., a company apparently named after the Star Wars droid,
supplied housing and other facilities for DynCorp personnel in Kabul. C3PO
invested significant funds to acquire and improve North Gate, a civilian



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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compound which housed those personnel. Taliban attackers detonated a truck
laden with explosives and stormed North Gate. After the Taliban attack,
DynCorp moved its personnel to a different facility, and ultimately notified
C3PO that it would not return to North Gate and thus was terminating the
parties’ contracts.
        In July 2014, C3PO filed its original complaint arising out of the
terminated contracts, alleging breach of contract, quantum meruit, and
promissory estoppel. It filed a first amended complaint, asserting the same
causes of action, in October 2014. Notably, the first amended complaint alleged
that:
        [T]he blast, while initiated by the Taliban, was assisted by
        employees of DynCorp.          Based on the security evaluation
        performed by the private security company hired by C3PO, there
        were several logistic workers for DynCorp that had subversive
        links with the Taliban—calling known insurgents days before and
        days after the blast. These workers were eventually arrested for
        their participation in this blast.
C3PO also argued, in response to DynCorp’s subsequent motion to dismiss,
that DynCorp did not have a right to terminate its contracts because “the event
that allegedly triggered its right to terminate”—the attack on North Gate—
“was caused, at least in part, by the actions of [DynCorp’s] employees.”
        In February 2015, the district court partially granted DynCorp’s motion
to dismiss, holding that C3PO had failed to state claims for quantum meruit
and promissory estoppel. It also rejected claims that DynCorp breached the
contracts by terminating for convenience, failing to comply with certain
security protocols, and not paying C3PO the full balance of the contract price.
The district court allowed C3PO to proceed only on claims that DynCorp
breached the contracts by: (1) failing to pay invoices for services rendered
before the contracts were terminated; and (2) not participating in an equitable


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adjustment process.     C3PO later abandoned its claim regarding unpaid
invoices.
      The district court entered a scheduling order setting these deadlines:
December 16, 2015, for motions for leave to amend pleadings; December 23,
2015, for motions for summary judgment; and February 16, 2016, for
completion of discovery. The order set a pretrial conference for March 7, 2016,
and trial for early the following month.
      On November 30, 2015, approximately ten months after the district court
ruled on DynCorp’s motion to dismiss but a couple weeks before the deadline
for seeking leave to amend, C3PO sought that permission, seeking to add
claims for negligence and negligent hiring based on DynCorp employees’
alleged involvement in the attack on North Gate.            The district court
immediately denied the motion because it did not comply with the local rules.
      On December 7, C3PO tried again, refiling the motion for leave to amend
in compliance with the local rules. Expressing concern that C3PO, “at this late
date,” was seeking to add new claims apparently based on facts alleged in
C3PO’s first amended complaint, the district court ordered supplemental
briefing on several issues, including when C3PO acquired each piece of
evidence relevant to its proposed negligence claims. C3PO responded that,
although a third-party security evaluation of North Gate had alerted C3PO,
before it filed its first amended complaint, that DynCorp employees had been
investigated for “subversive links,” including “telephone traffic before and
after” the North Gate attack, C3PO had only recently discovered corroborating
evidence: a witness with personal knowledge that two DynCorp employees
were arrested for their suspected involvement in the attack. C3PO found this
witness by searching Facebook for individuals it identified as people with
possible knowledge of the attack, a tactic it began using in September of 2015.


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      Shortly after C3PO refiled its motion for leave to amend, DynCorp filed
a motion for summary judgment.
      On January 27, 2016, the district court denied C3PO’s motion seeking
leave to amend, again noting its “late date” and finding it “untimely.” The
district court also found the proposed second amended complaint did not state
plausible claims for negligence or negligent hiring, such that permitting
amendment would be an “act of futility.”
      C3PO sought reconsideration, which resulted in the district court
providing additional reasons for its denial of the motion: C3PO waited “over
one year after the first amended complaint had been filed and ten months after
the [district] court had granted in part” DynCorp’s motion to dismiss to propose
a complaint alleging “the same basic facts,” which were “known to [C3PO] all
along.” The district court concluded that C3PO “waited to assert its tort claims
in a last ditch effort to avoid summary judgment,” and that adding tort claims
at that time “would be prejudicial to defendant and to the interests of justice”
due to the imminent discovery deadline and trial date. “[I]n any event,” the
district court continued, adding the new claims would be futile.
      The district court later granted DynCorp’s motion for summary
judgment on the contract claims that had survived the motion to dismiss.
C3PO filed this appeal “from the Order entered on January 27, 2016 denying
Plaintiff’s Motion for Leave to file [a] Second Amended Complaint.”
      In general, we review the denial of a motion for leave to amend for abuse
of discretion. Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 347 (5th Cir.
2008). Rule 15 provides that “[t]he court should freely give leave when justice
so requires.” FED. R. CIV. P. 15(a)(2). “Rule 15(a) ‘evinces a bias in favor of
granting leave to amend.’” Herrmann Holdings Ltd. v. Lucent Techs. Inc., 302
F.3d 552, 566 (5th Cir. 2002) (quoting Dussouy v. Gulf Coast Inv. Corp., 660
F.2d 594, 598 (5th Cir. 1981)). A court may deny leave, however, when there
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is: (1) undue delay; (2) bad faith or dilatory motive; (3) repeated failure to cure
deficiencies by previous amendments; (4) undue prejudice to the opposing
party; or (5) the amendment would be futile. Smith v. EMC Corp., 393 F.3d
590, 595 (5th Cir. 2004); Foman v. Davis, 371 U.S. 178, 182 (1962).
      In its opening brief, C3PO characterized the district court’s decision as
one based only on futility concerns, and thus only challenged the district court’s
decision on that ground. But the district court’s orders—especially its order on
C3PO’s motion for reconsideration—found undue delay, dilatory motive, and
undue prejudice, even if they did not use those exact words. By finding that
the motion was “untimely,” because it was filed at a “late date,” “over one year
after the first amended complaint,” when C3PO knew the “basic facts”
supporting its new claims “all along,” the district court found undue delay. By
concluding that C3PO “waited to assert its tort claims in a last ditch effort to
avoid summary judgment,” the district court found dilatory motive. And, by
concluding that allowing amendment “would be prejudicial to defendant”
because of pressing discovery and trial deadlines, the district court found
undue prejudice.
      A party that fails to adequately brief an argument on appeal waives it.
Legate v. Livingston, 822 F.3d 207, 211–12 (5th Cir. 2016); United States v.
Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010). Because C3PO did not present
argument or authority in the analysis section of its opening brief contending
that the district court abused its discretion in finding undue delay, dilatory
motive, and undue prejudice, those issues are waived. See Gen. Universal Sys.
v. HAL, Inc., 500 F.3d 444, 453 (5th Cir. 2007); Bedingfield ex rel. Bedingfield
v. Deen, 487 F. App’x 219, 233 (5th Cir. 2012).
      In its reply brief, C3PO argues that it was not required to challenge
grounds the district court gave for denying the motion for leave at the
reconsideration stage, because the order on C3PO’s motion for reconsideration
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is not the subject of this appeal. It points to its notice of appeal, which cites
only the original order denying leave to amend. C3PO cites no authority for
the proposition that, when a party seeks reconsideration, prompting the
district court to further explain the basis of a prior order before final judgment,
we cannot consider that further explanation if the party only appeals the prior
order. Given that it instigated the reconsideration process, C3PO cannot now
ignore it. It would make little sense for us not to consider the amplified reasons
the district court cited after giving the motion additional thought, as the
district court could just repeat those reasons in the event we remanded. And
despite C3PO’s protestations in its reply brief, portions of its opening brief
reflect its understanding of this obvious principle as it challenges the district
court’s ruling concerning Texas’s economic loss rule, which appears only in the
order on reconsideration.
      Because the district court’s order on reconsideration treated the
unchallenged grounds of undue delay, dilatory motive, and unfair prejudice to
the defendant as an independent basis for denying leave to amend, we need
not address the futility question. See Smith, 393 F.3d at 595 (affirming a
denial of a motion for leave to amend solely on the grounds of undue delay and
undue prejudice).
      The judgment of the district court is AFFIRMED.




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