                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                                                                         HLED
                           File Name: 14a0602n.06                                      AUG     6 2014
                                            No. 13-6544
                                                                                  DEFH S. HUNT, Clerk
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

WILLIAM H. THOMAS, JR.,                                   )
                                                          )
       Plaintiff-Appellant,                               )
v.                                                                ON APPEAL FROM THE
                                                                  UNITED STATES DISTRICT
TENNESSEE DEPARTMENT OF
                                                                                             OF
                                                                  TENNESSEE
       Defendant-Appellee.                                )
                                                          )
BEFORE: GIBBONS, SUTTON, and WHITE, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Williams H. Thomas, Jr., believes that the

Tennessee Department of Transportation (TDOT) is selectively and unlawfully enforcing a

Tennessee state law that requires commercial billboard owners and operators to obtain a permit.

After TDOT initiated a state-court suit against Thomas to compel him to remove one of his

billboards, Thomas filed this action against TDOT alleging violations of the First and Fourteenth

Amendments to the United States Constitution. The district court held that Thomas’s suit was

barred by another constitutional amendment—the Eleventh. The court also refused to permit

Thomas to amend his complaint to add four Tennessee state officials as defendants. We affirm.

                                                  I.

       TDOT is charged with enforcing the Billboard Regulations and Control Act of 1972,

Tenn. Code   § 54-21-101   et seq., which regulates commercial billboards in the state of Tennessee.

That statute generally requires billboard owners and operators to obtain a permit before
No. 13-6544
Thomas v. Tennessee Department of Transportation

constructing or operating certain types of “outdoor advertising.” Id.    §   54-21-104(a). Thomas

owns several billboards around Memphis, Tennessee, including one specific billboard along

Interstate 40. Thomas evidently does not have a permit to operate that billboard, but he claims

that he is exempt from the Tennessee permit requirement because his billboard displays only

noncommercial messages.       TDOT disagrees and filed an enforcement action in the Shelby

County Chancery Court to compel Thomas to remove the disputed sign along Interstate 40.

According to Thomas, “TDOT’s ongoing enforcement action against Mr. Thomas is a

continuation of an adversarial relationship” between the two parties.

       The details of the state-court dispute are not relevant to this appeal. After TDOT initiated

that suit, Thomas filed this suit in federal district court pursuant to 42 U.S.C.   § 1983 to obtain
injunctive and declaratory relief as well as “an award of such damages as are authorized by law.”

He alleges that TDOT’ s “selective” and “vindictive” enforcement of the billboard regulations

infringes his First Amendment right to free speech and violates his Fourteenth Amendment right

to the equal protection of the laws. He also asks for a declaration that his sign is exempt from

the permitting requirements of the Billboard Regulations and Control Act.

       The district court dismissed Thomas’s claim after concluding that TDOT is immune from

suit under the Eleventh Amendment to the United States Constitution. The district court also

rejected Thomas’s untimely request for leave to amend his complaint to add four Tennessee state

officials as defendants. In the district court’s view Thomas had not shown good cause for his

failure to amend the complaint before the expiration of the deadline set forth in the district

court’s scheduling order. Thomas timely appealed.




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No. 13-6544
Thomas v. Tennessee Department of Transportation

                                                 II.

       The Eleventh Amendment to the United States Constitution bars suits in federal court

against the states or their agencies unless the state provides its consent. Papasan v. Allain,

478 U.S. 265, 276 (1986) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100

(1984)). TDOT, a state agency, is the sole defendant named in Thomas’s complaint, and he does

not suggest that the state of Tennessee consented to be sued in federal court. The case therefore

cannot proceed in this forum. To obtain the injunctive relief he seeks, Thomas must sue a state

official in his or her official capacity. See Ernst v. Rising, 427 F.3d 351, 358—59 (6th Cir. 2005)

(citing Ex parte Young, 209 U.S. 123, 155—56 (1908)). And Thomas cannot obtain money

damages unless he sues a state official in his or her individual capacity.        See Kentucky v.

Graham, 473 U.S. 159, 165—69 (1985). Because Thomas’s original complaint included no state

officials as defendants, the district court properly dismissed the complaint.

                                                III.

       TDOT raised its Eleventh Amendment defense in its answer to Thomas’s complaint and

in its motion to dismiss. Four months after TDOT filed its answer and six weeks after TDOT

moved to dismiss Thomas’s suit, he sought leave of the court to amend his complaint to add four

Tennessee state officials as defendants. The court had entered a scheduling order, however, and

Thomas filed his motion after the expiration of the scheduling order’s deadline for amendments

to the pleadings. Thomas therefore was required to show good cause for his failure to amend the

complaint within the prescribed timeframe. See Fed. R. Civ. P. 16(b)(4) (“A schedule may be

modified only for good cause and with the judge’s consent.”); Leary v. Daeschner, 349 F.3d 888,

907 (6th Cir. 2003). The district court refused to permit Thomas to amend his complaint because

he did not establish “that despite [his] diligence, [he] could not meet the original deadline.”


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No. 13-6544
Thomas v. Tennessee Department of Transportation

Leary, 349 F.3d at 907; see also Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002)

(“The primary measure of Rule 16’s “good cause” standard is the moving party’s diligence in

attempting to meet the case management order’s requirements.” (quoting Bradford v. DANA

Corp., 249 F.3d 807, 809 (8th Cir. 2001))). The district court concluded that Thomas was not

diligent because he sought leave to amend the complaint almost two months after the scheduling

order’s deadline, even though he knew the identity of the individual defendants before that

deadline. That decision was not an abuse of discretion, especially where TDOT’s answer alerted

Thomas to its sovereign-immunity defense. See Ross v. Am. Red Cross, No. 12-4312, 2014 WL

289430, at *8 (6th Cir. Jan. 27, 2014) (“A plaintiff does not establish ‘good cause’ to modify a

case schedule to extend the deadline to amend the pleadings where she was aware of the facts

underlying the proposed amendment to her pleading but failed, without explanation, to move to

amend the complaint before the deadline.” (citing Leary, 349 F.3d at 908)). Although Thomas

explained that he failed to meet the deadline because he wanted to use discovery to limit the

number of defendants he added to the complaint, the district court acted within its discretion

when it rejected that justification as insufficient.

        Thomas also argues that the district court abused its discretion in denying his motion

because the district court did not address whether TDOT would suffer prejudice as a result of the

amendment. See Leary, 349 F.3d at 908 (“Another important consideration for a district court

deciding whether Rule 16’s ‘good cause’ standard is met is whether the opposing party will

suffer prejudice by virtue of the amendment.”). But Thomas did not seek to amend his complaint

to add any new claims against TDOT, nor does his proposed amended complaint include any

alterations to the factual allegations against TDOT. The only change Thomas seeks to make, so

far as we can tell, is to add four state officials as defendants. Yet Thomas proposes to sue these


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No. 13-6544
Thomas v. Tennessee Department of Transportation

officials in their individual capacities only—not in their official capacities. The amendments that

Thomas proposes therefore would have no effect whatsoever on TDOT.               Thomas’s claims

against TDOT have been dismissed, and the proposed amended complaint would not reinstate

those claims.   There was accordingly no reason for the district court to determine whether

amendment of the complaint would have prejudiced TDOT, as TDOT would no Longer be in the

case. Any prejudice as a result of the amendment would be to the detriment of the four state

officials whom Thomas seeks to add, and the district court was not required to consider prejudice

to non-parties when determining whether to grant Thomas leave to amend the complaint.

        The district court did not abuse its discretion when it refused to permit Thomas to

transform his suit against TDOT into a suit against four state officials in their individual

capacities.

                                               Iv.

       Because the district court did not err in dismissing Thomas’s complaint and did not abuse

its discretion in denying Thomas’s untimely motion to amend, we affirm.




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