     Case: 12-50212     Document: 00512034614         Page: 1     Date Filed: 10/26/2012




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

                                                                            FILED
                                                                         October 26, 2012

                                     No. 12-50212                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



KELLY JO SUTER, Ph.D.,

                                                  Plaintiff-Appellant
v.

UNIVERSITY OF TEXAS AT SAN ANTONIO; GEORGE PERRY, Ph.D.;
JAMES M. BOWER, Ph.D.; MATHEW J. GDOVIN, Ph.D.; ROBERT W.
GRACY, Ph.D.; J. AARON CASSILL, Ph.D.; EDWIN J.
BAREA-RODRIGUEZ, Ph.D.,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:10-CV-692


Before REAVLEY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Kelly Jo Suter appeals the district court’s grant of
summary judgment in favor of Defendant-Appellees on her tort and contract
claims and her claims under 42 U.S.C. § 1983 and the Equal Pay Act, 29 U.S.C.
§ 206. Suter is a biology professor at Defendant University of Texas at San


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Antonio (“UTSA” or “University”). Suter alleges that Defendants mishandled
start-up funds that she expected would be available to her when she began
employment at the University, which funds were meant to support her in
establishing a research laboratory at UTSA. In particular, she alleges that the
individual Defendants failed to fully inform her about or otherwise secure a key
source of funding for her research, namely a federal grant through the Research
Centers in Minority Institutions (RCMI) program. Suter claims that as a result
of Defendants’ acts and omissions, she lost a year of research and suffered
professional injury therefrom. She further alleges that she has suffered unequal
treatment on the basis of gender, because two male professors at UTSA received
RCMI funding even when she had not, and because there is a variance in pay for
female and male professors. Suter filed suit on July 16, 2010.
      Suter makes two contentions on appeal. First, she argues that the district
court erred in twice denying her leave to amend her complaint. We review the
district court’s refusal to grant leave to amend for abuse of discretion. Stripling
v. Jordan Prod. Co., 234 F.3d 863, 872 (5th Cir. 2000). Second, Suter argues
that the district court erred in granting summary judgment to Defendants on
her various claims. We review the district court’s grant of summary judgment
de novo. Noble Energy, Inc. v. Bituminous Cas. Co., 529 F.3d 642, 645 (5th Cir.
2008). For the reasons that follow, we AFFIRM.
                                        I.
      At pretrial, the district court entered a scheduling order that set a
deadline for “all motions to amend or supplement pleadings” by January 13,
2011. On that date, Suter filed a first amended complaint, but she neglected to
file a motion for leave to amend. Suter filed her first motion for leave to amend
thirty days later. Additionally, forty-eight days after the January 13 deadline,
Suter filed a second amended complaint that was accompanied by a motion for



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leave to amend. The district court denied both motions and ordered that the two
amended complaints be stricken from the record.
      Suter argues that, at the very least, the first amended complaint should
have been the “live” complaint at trial because it was timely filed, even if it was
not accompanied by a formal motion for leave to amend. Suter cites Federal
Rule of Civil Procedure 15(a), which states that the district court “should freely
give leave when justice so requires.” FED. R. CIV. P. 15(a)(2). However, Rule
15(a) is inapposite because Suter never requested leave to amend, whether in a
formal motion or within the body of her amended complaint. “[F]ailing to
request leave from the court when leave is required makes a pleading more than
technically deficient.   The failure to obtain leave results in an amended
complaint having no legal effect.” U.S. ex rel. Mathews v. HealthSouth Corp.,
332 F.3d 293, 296 (5th Cir. 2003); see also U.S. ex rel. Willard v. Humana Health
Plan of Tex., Inc., 336 F.3d 375, 387 (5th Cir. 2003) (“A party who neglects to ask
the district court for leave to amend cannot expect to receive such a dispensation
from the court of appeals.”)
      Failing that argument, Suter invokes Rule 16(b), which permits a district
court to modify its schedule on a showing of good cause. FED. R. CIV. P. 16(b)(4);
S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir.
2003). Suter contends that although she was late in filing her two motions for
leave, the district court nevertheless abused its discretion in denying those two
motions because she could show good cause for her delay. However, the district
court did not abuse its discretion in ruling that Suter had failed to show good
cause. Suter’s only meaningful explanation for why her motions were late was
that she was waiting for a right-to-sue letter from the EEOC. Yet, as the district
court pointed out, the good cause standard of Rule 16(b) “requires the ‘party
seeking relief to show that the deadlines cannot reasonably be met despite the
diligence of the party needing the extension.’” S&W Enters., 315 F.3d at 535

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(citation omitted). Suter did not conduct due diligence with respect to the right-
to-sue letter; indeed, she failed to inquire about the letter for two months even
though she knew there was an impending deadline. Thus, the district court did
not abuse its discretion in ruling that Suter had failed to show good cause, nor
did it abuse its discretion in deciding to enforce its scheduling order.
                                            II.
       Suter also contests the district court’s grant of summary judgment to
Defendants on her five state law claims and two federal law claims. First, Suter
argues that the district court erred in ruling that her state law claims for
negligence, negligent misrepresentation, tortious interference with contract,
breach of fiduciary duty, and breach of contract were time-barred.
       Under Texas law, tort claims for negligence, negligent misrepresentation,
and tortious interference are subject to a two-year statute of limitations.1
Claims for breach of fiduciary duty and breach of contract are subject to a four-
year statute of limitations.2 “Limitations begins to run upon accrual of the cause
of action.” Barker v. Eckman, 213 S.W.3d 306, 311 (Tex. 2006). In most cases,
the legal injury rule applies, under which “a cause of action accrues when a
wrongful act causes an injury, regardless of when the plaintiff learns of that
injury or if all resulting damages have yet to occur.” Childs v. Haussecker, 974
S.W.2d 31, 36–37 (Tex. 1998); see Murphy v. Campbell, 964 S.W.2d 265, 270
(Tex. 1997). In some rare cases when “the nature of the injury incurred is
inherently undiscoverable and the evidence of injury is objectively verifiable,”

       1
        See KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 750
(Tex. 1999) (negligence); Hendricks v. Thornton, 973 S.W.2d 348, 364 & n.19 (Tex.
App.—Beaumont 1998, pet. denied) (negligent misrepresentation); Milestone Props., Inc. v.
Federated Metals Corp., 867 S.W.2d 113, 118–19 (Tex. App.—Austin 1993, no writ) (negligent
misrepresentation); Snyder v. Eanes Indep. Sch. Dist., 860 S.W.2d 692, 699 (Tex. App.—Austin
1993, writ denied) (tortious interference with contract).
       2
        TEX. CIV. PRAC. & REM. CODE ANN. §§ 16.004(a)(5) (breach of fiduciary duty), 16.051
(residual limitations period).

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Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996), the
statute of limitations is tolled by the discovery rule, under which “a cause of
action does not accrue until a plaintiff knows or, through the exercise of
reasonable care and diligence, ‘should have known of the wrongful act and
resulting injury.’” Childs, 974 S.W.2d at 37 (citation omitted).
      The district court did not explicate the accrual date for Suter’s actions for
negligence, negligent misrepresentation, and tortious interference. Instead, the
court merely stated that, “[t]hough it is likely that any such claims arose before
this time, in February 2008, the Plaintiff initiated the first of several formal
complaints against University employees for mishandling her ‘start-up’ funds.
It is clear that this is the latest possible time at which the Plaintiff knew, or
should have known of the existence of any of these claims. Because the original
complaint in this case was not filed until July of 2010, each such claim is barred
by limitations.” It appears that the district court assumed, implicitly and for the
sake of argument, that the discovery rule applied to these three tort claims and
held that even under the discovery rule the claims were time-barred. So
construed, we agree with the district court’s reasoning.
      Assuming that the discovery rule applies, the latest that the rule could
have tolled limitations was when Suter learned about the mishandling of her
funds. Suter argues on appeal that limitations could not have barred judgment
against all the defendants because she only learned after July 2008 (and thus
less than two years before July 2010) about certain defendants’ acts and
omissions regarding the mishandling of funds. In other words, Suter interprets
the discovery rule to mean that a cause of action accrues not when a plaintiff
learns of her injury, but rather when she learns about the specifics of each
wrongful act that might have caused her injury. However, the Texas Supreme
Court has expressly rejected that interpretation of the discovery rule and has
clarified that the rule means “that accrual occurs when the plaintiff knew or

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should have known of the wrongfully caused injury.” KPMG Peat Marwick, 988
S.W.2d at 749. Suter learned about the mishandling of her start-up funds, in
particular Defendants’ failure to provide RCMI funds to her, in February 2008,
which is more than two years before July 16, 2010. She therefore cannot prevail
on these three tort actions under the discovery rule, meaning she cannot prevail
under the legal injury rule either.        Her actions for negligence, negligent
misrepresentation, and tortious interference are necessarily time-barred under
Texas’s two-year statute of limitations.
      In contrast, the district court did decide on an accrual date for Suter’s
breach of fiduciary duty and breach of contract claims. To wit, the district court
concluded that the two causes of action accrued when Suter’s start-up funds
were not immediately available to her upon her employment date of July 1, 2006.
We agree. Under the legal injury rule, the default accrual date for limitations
would be the date on which an injury occurred. For breach of fiduciary duty and
breach of contract claims, an injury occurs at the moment of breach. Leigh v.
Weiner, 679 S.W.2d 46, 48–49 (Tex. App. 1984) (breach of fiduciary duty);
Barker, 213 S.W.3d at 311 (breach of contract). After Suter was hired, she
expected all of her start-up funding, including the $100,000 in RCMI funds, to
be made immediately available for the purposes of setting up her research
laboratory. Indeed, Suter’s main complaint is that she would not have accepted
UTSA’s employment offer had she known that the funds were not immediately
available and that they were subject to a conditional carry-forward request.
Thus, if any breach occurred, it occurred when the funds were not immediately
available at the moment Suter expected them to be—that is, on July 1, 2006.
This is therefore the date on which she suffered an injury and is the default
accrual date for her breach of fiduciary duty and breach of contract claims.
      However, this does not end our inquiry. Suter further argues that the
discovery rule tolls the statute of limitations for these two causes of action. The

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district court disagreed with Suter, stating simply that “Plaintiff has failed to
sufficiently plead [the discovery rule] or to plead facts that would properly put
the defendant on notice of such a defense.”3             The discovery rule must be
affirmatively pleaded in federal court, whether specifically or through “sufficient
facts to put the defense on notice of the theories on which the complaint is
based.” Colonial Penn Ins. Co. v. Mkt. Planners Ins. Agency, Inc., 1 F.3d 374,
376 (5th Cir. 1993) (internal quotation marks and citation omitted). We need not
decide whether Suter sufficiently pleaded the discovery rule, because we hold
that even if she did, she has failed to establish the defense by proof on summary
judgment.
       Under Texas law, “[t]he discovery rule, in application, proves to be a very
limited exception to statutes of limitations. . . . Generally, application has been
permitted in those cases where the nature of the injury incurred is inherently
undiscoverable and the evidence of injury is objectively verifiable.                   The
requirement of inherent undiscoverability recognizes that the discovery rule
exception should be permitted only in circumstances where ‘it is difficult for the
injured party to learn of the negligent act or omission.’” Computer Assocs., 918
S.W.2d at 455–56 (citation omitted).
       While Suter claims, and Defendants do not dispute, that she learned about
insufficiency of funds in October or November 2006, there is evidence that she
was earlier put on notice about funding sources and deadlines. Most notably,
Suter’s employment offer letter, dated May 30, 2006, explicates that her
$200,000 for equipment “[m]ust be spent within the RCMI grant cycle[.]” While
the letter does not clarify the end of the then-current grant cycle, Suter at least



       3
        The district court and Defendants have also pointed out that Suter cannot prevail on
a theory of fraudulent concealment. On appeal, Suter’s arguments concerning fraudulent
concealment are at most tangential. In any case, the theory does not alter our analysis. We
therefore consider the discovery rule aside from any claim of fraud or concealment.

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should have been aware that there was a deadline for the funds, and she could
have easily asked Defendants or others about the deadline. There is no evidence
that Defendants would have misrepresented such information or otherwise
withheld it from her.        Moreover, Suter was never foreclosed from herself
obtaining information on the RCMI program, since such federal grant money
was administered through the National Institutes of Health (NIH), with the
University acting only as its steward. While Suter might not have actually
known about the deadline to use these funds, the evidence fails to prove that
information about the funds was “inherently undiscoverable.” Id. Therefore, we
hold that even if Suter sufficiently pleaded the discovery rule, the rule would not
apply to toll Suter’s breach of fiduciary duty and breach of contract claims, and
so those claims accrued on the date of the alleged breach, July 1, 2006. Because
that is more than four years before Suter filed suit, these two actions are time-
barred under Texas’s four-year statute of limitations.
       Finally, Suter alleges that Defendants violated the Equal Pay Act. She
specifically seeks damages from Defendant Edwin Barea-Rodriguez (Chair of the
Department of Biology), in his individual capacity under 42 U.S.C. § 1983, for
violating the Equal Pay Act. We agree with the district court’s reasoning on
these claims in toto.4       To wit, the district court properly concluded that
Defendants proved by a preponderance of the evidence that there was adequate
justification for variances in pay between Suter and other professors with
similar qualifications. In particular, differences in pay between Suter and Dr.
Fidel Santamaria and Dr. Todd Troyer—her two male colleagues with whom she

       4
          Suter specifically alleges that Barea-Rodriguez violated the Equal Pay Act because
he “authorized and/or approved higher pay levels for male faculty” than for female faculty.
The district court awarded summary judgment to Barea-Rodriguez on the ground that Suter’s
§ 1983 claim against him was a remedial redundancy, when she already had a claim against
the University under the Equal Pay Act. We agree with this reasoning, but it is unnecessary
to decide the outcome, as Defendants have sufficiently proved that Suter cannot prevail under
the Equal Pay Act, whether against Barea-Rodriguez or any other defendant.

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constitutes the RCMI “faculty development core”—are based on merit
evaluations, a system under which Suter has even benefitted.5 These merit
evaluations are in turn based on a professor’s teaching, research, and service,
and the system also considers the seniority of professors—all of which proves
affirmative defenses to a prima facie case under the Equal Pay Act. See Siler-
Khodr v. Univ. of Tex. Health Science Ctr. San Antonio, 261 F.3d 542, 546 (5th
Cir. 2001) (“[T]he four affirmative defenses set forth in the Equal Pay Act [are]
(1) a seniority system; (2) a merit system; (3) a system which measures earnings
by quantity or quality of production; or (4) any other factor than sex.”) (internal
quotation marks and citation omitted). Accordingly, we affirm the district
court’s summary judgment for Defendants on Suter’s Equal Pay Act and § 1983
claims.
       AFFIRMED.




       5
         For example, in September 2010, Suter received a one-time bonus that was about $400
greater than Santamaria’s, based on a better annual evaluation rating for Suter. Additionally,
since the 2009 academic year, Suter has earned more than Troyer.

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