     Case: 15-41493      Document: 00513505504         Page: 1    Date Filed: 05/13/2016




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

                                    No. 15-41493
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                             May 13, 2016
                                                                              Lyle W. Cayce
JONI LOZANO, as Next Friend of A.H., a Minor,                                      Clerk


              Plaintiff - Appellant

v.

DONNA INDEPENDENT SCHOOL DISTRICT,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:15-CV-58


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       On February 9, 2015, Joni Lozano as next friend of A.H., a minor,
brought suit against Donna Independent School District (Donna ISD),
asserting several causes of actions—including an action under Title IX of the
Education Amendments of 1982—arising out of a school teacher’s alleged




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                         No. 15-41493
sexual assault of A.H. 1 Donna ISD moved to dismiss the complaint for failing
to state a claim, and Lozano subsequently filed a motion for leave to file an
amended complaint. On May 1, 2015, the district court granted the motion for
leave to file in an order and expressly instructed Lozano that the “amended
complaint should be filed within seven days of th[e] order.” Lozano did not file
an amended complaint during that time period.
          On July 13, 2015, the district court granted Donna ISD’s motion to
dismiss, dismissing all of Lozano’s claims with prejudice. Lozano thereafter
filed a motion to alter or amend judgment under Federal Rule of Civil
Procedure 59 or, alternatively, for relief from judgment under Rule 60. Lozano
contended that the district court improperly stated the standard for a Title IX
claim, that her original complaint sufficiently pleaded her Title IX claim, and,
in the alternative, that her counsel’s failure to file the amended complaint as
directed by the court was “excusable neglect” within the meaning of Rule
60(b)(1). On October 26, 2015, the district court denied Lozano’s motion for
relief.       The district court found that Lozano failed to adequately allege that
Donna ISD had actual knowledge of the sexual harassment of A.H. The court
also refused to grant relief from the final judgment on the grounds of Lozano’s
counsel’s excusable neglect, noting that Fifth Circuit precedent allowed a court
to deny such a motion when the justification was the “inadvertent mistake” of
counsel. Lozano timely appealed.
          On appeal, Lozano contends that the district court abused its discretion
by deciding the motion to dismiss based on Lozano’s original complaint rather
than the proposed amended complaint attached to Lozano’s motion for leave to
file. We review a district court’s grant or denial of a motion for leave to amend



          1   The teacher was later arrested and charged with aggravated sexual assault of a
minor.
                                                2
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                                       No. 15-41493
for abuse of discretion. Moore v. Manns, 732 F.3d 454, 456 (5th Cir. 2013). In
the present matter, the district court granted the motion and ordered Lozano
to file the amended complaint “within seven days of this order.” It is well
settled that a district court may impose conditions when it grants leave to
amend. See 6 Wright et al., Federal Practice & Procedure § 1486 (3d ed. 2015)
(noting that Rule 15(a)(2) “presupposes that the court may use its discretion to
impose conditions on the allowance of a proposed amendment”). And Lozano
has failed to present any authority that district courts in the Southern District
of Texas must treat a proposed pleading attached to a motion as properly filed
upon the granting of the motion. Cf. N.D. Tex. Civ. R. 15(b) (providing that, in
the United States District Court for the Northern District of Texas, amended
pleadings are “deemed filed as of the date of the order granting leave”). Lozano
instead relies on Foman v. Davis, 371 U.S. 178 (1962), to argue that technical
violations of the rules cannot be relied upon to avoid reaching the merits of a
cause of action.      See id. at 181–82.          However, failing to file an amended
complaint pursuant to an order by the district court does not constitute the
sort of “mere technicalit[y]” discussed in Foman. Id. at 181. The district court
therefore did not abuse its discretion by requiring Lozano to file the amended
complaint within seven days of granting Lozano’s motion and in considering
only the original complaint when Lozano failed to file the amended complaint. 2
       Lozano also argues on appeal that she pleaded sufficient facts for her
Title IX claim to survive a motion to dismiss. “We review a district court’s
dismissal under Rule 12(b)(6) de novo, ‘accepting all well-pleaded facts as true
and viewing those facts in the light most favorable to the plaintiffs.’” King-


       2 Furthermore, insofar as Lozano contends that the district court abused its discretion
in denying her Rule 60(b) motion that argument also fails. A district court does not abuse its
discretion by denying a rule 60(b) motion when “the proffered justification for relief” is the
party’s own counsel’s mistake or carelessness. Edward H. Bohlin Co. v. Banning Co., 6 F. 3d
350, 356–57 (5th Cir. 1993).
                                              3
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                                    No. 15-41493
White v. Humble Indep. Sch. Dist., 803 F.3d 754, 758 (5th Cir. 2015) (quoting
Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)). For a school district to face
Title IX liability, it must have “actual knowledge of discrimination in [its]
programs and [fail] adequately to respond.” Gebser v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274, 290 (1998). In particular, “Title IX liability for sexual
harassment will not lie if a student fails to demonstrate that the school district
actually knew that the students faced a substantial threat of sexual
harassment.” Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 659 (5th
Cir. 1997). In her original complaint, Lozano failed to plead facts showing that
Donna ISD had actual knowledge that students, such as Lozano, faced a
“substantial threat of sexual harassment” beyond her conclusory statement
that the school district “either knew or had constructive knowledge of [the
teacher’s] past history of improper sexual conduct with female students.” See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.”). 3 The district court consequently did not err in granting the school
district’s motion to dismiss.
      We therefore AFFIRM the judgment of the district court.




      3Moreover, the amended complaint proposed by Lozano fails to plead sufficient facts
showing that the school district had actual notice.
                                           4
