     Case: 13-40389      Document: 00512532480         Page: 1    Date Filed: 02/13/2014




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

                                                                                   FILED
                                    No. 13-40389                            February 13, 2014
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
WESLEY MYERS; CATHY MYERS,

                                                 Plaintiffs – Appellants
v.

CITIMORTGAGE, INCORPORATED,

                                                 Defendant – Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                                No. 9:12-cv-00028


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiffs-Appellants Wesley and Cathy Myers (“the Myers”) filed this
suit against Defendant-Appellee CitiMortgage, Inc. (“CitiMortgage”) to enjoin
foreclosure on their property. The Myers now appeal the district court’s March
7, 2013 order denying their motion to alter or amend judgment under Federal
Rule of Civil Procedure 59(e). For the reasons set forth below, the district
court’s order is AFFIRMED.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40389
                                              I.
       On February 13, 2013, the Myers filed a motion to alter or amend
judgment under Rule 59(e). In their motion, the Myers asked the district court
to reconsider (1) the court’s prior denial of the Myers’s motion to amend the
complaint and (2) the court’s prior denial of the parties’ motion for a
continuance. On March 7, 2013, the district court denied the Myers’s Rule
59(e) motion. The Myers timely appealed. 1
       We generally review a district court’s denial of a Rule 59(e) motion for
abuse of discretion. Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005).
“However, to the extent that a ruling was a reconsideration of a question of law
. . . the standard of review is de novo.” Id. (internal quotation marks and
citation omitted).      For relief under Rule 59(e), the movant must “clearly
establish either a manifest error of law or fact or must present newly
discovered evidence.” Id. (internal quotation marks and citation omitted). The
Myers have not met this standard.
       a. Reconsideration of Motion to Amend
       On November 14, 2012, the Myers filed a motion for leave to file an
amended complaint. CitiMortgage opposed the motion on the grounds that (1)
the motion to amend was untimely and the Myers had not shown good cause
for the late filing, and (2) the proposed amended complaint failed to state a
claim and therefore amendment would be futile. On January 16, 2013, the
court denied the Myers’s motion to amend on the ground that the proposed
amended complaint failed to state a claim under Rule 12(b)(6). The court
stated that it need not address the timeliness of the Myers’s motion to amend


       1 Although the Myers’s motion mentions both Rules 59(e) and 60(b), the district court
interpreted the motion as a motion under Rule 59(e) because it was filed within twenty-eight
days of the court’s order of dismissal. The Myers do not dispute this interpretation on appeal.
The motion also asked the court to amend its order of dismissal to be “without prejudice.”
The district court denied this request. The Myers similarly do not raise this issue on appeal.
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                                  No. 13-40389
because the “Plaintiffs’ proposed amended complaint fails to state a claim upon
which relief can be granted.” In their Rule 59(e) motion, the Myers moved for
reconsideration of the district court’s denial of leave to amend. The district
court denied reconsideration.
      A district court may deny leave to amend a complaint if amendment
would be futile. See Rio Grande Royalty Co., Inc. v. Energy Transfer Partners,
L.P., 620 F.3d 465, 468 (5th Cir. 2010). Amendment would be futile if the
proposed amended complaint fails to state a claim for relief under Rule
12(b)(6). See Briggs v. Mississippi, 331 F.3d 499, 508 (5th Cir. 2003); Sinay v.
Lamson & Sessions Co., 948 F.2d 1037, 1041 (5th Cir. 1991) (“[A]n amendment
may not be allowed if the complaint as amended could not withstand a Fed. R.
Civ. P. 12(b)(6) motion.”).
      On appeal, the Myers contend that the district court erred in denying
reconsideration of its prior denial of leave to amend. In particular, the Myers
assert that they had “good cause” for filing their motion to amend after the
amendment deadline.       As stated above, the district court did not deny
amendment on the ground of untimeliness.              Rather, the court denied
amendment on the independent ground of futility. The Myers do not challenge
the district court’s finding that that the proposed amended complaint fails to
state a claim under Rule 12(b)(6). As a result, they have abandoned any
challenge to this finding on appeal. See In re Cao, 619 F.3d 410, 420 (5th Cir.
2010); Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987) (“We will not raise and discuss legal issues that [the appellant] failed
to assert.”); Davis v. Maggio, 706 F.2d 568, 571 (5th Cir. 1983) (“[C]laims not
pressed on appeal are deemed abandoned.”). Accordingly, the Myers have not
shown that the district court erred in denying relief under Rule 59(e) on this
ground.
      b. Reconsideration of Motion for a Continuance
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                                  No. 13-40389
      On January 7, 2013, the parties filed a motion to continue the May 13,
2013 trial date and the deadlines for pretrial filings for ninety days so that the
parties could explore the “potential resolution of the dispute” through a
possible loan modification.     At the time of the motion for a continuance,
CitiMortgage’s motion to dismiss had been pending for ten months and the
Myers’s motion to amend had been pending for almost two months.               On
January 11, 2013, the district court denied the parties’ motion for a
continuance.   Five days later, the court granted CitiMortgage’s motion to
dismiss and denied the Myers’s motion to amend. In their Rule 59(e) motion,
the Myers moved for reconsideration of the court’s denial of a continuance. The
court denied reconsideration.
      District courts have “broad discretion” in deciding motions for
continuances. See United States v. Stalnaker, 571 F.3d 428, 439 (5th Cir.
2009); HC Gun & Knife Shows, Inc. v. City of Houston, 201 F.3d 544, 549 (5th
Cir. 2000) (noting that district courts’ discretion in making scheduling
decisions is “exceedingly wide”).    When making scheduling decisions, the
district court “must consider not only the facts of the particular case but also
all of the demands on counsel’s time and the court’s [time].” HC Gun & Knife
Shows, 201 F.3d at 549-50. “We will not substitute our judgment concerning
the necessity of a continuance for that of the district court, unless the
complaining party demonstrates that it was prejudiced by the denial.” Id. at
550 (emphasis in original) (internal quotation marks and citations omitted).
      On appeal, the Myers contend that the district court erred in denying
reconsideration of its prior denial of a continuance. The district court gave
several reason for denying a continuance and denying reconsideration,
including: (1) the case is a “simple foreclosure case” that had been pending over
a year; (2) the court had already granted continuances of two deadlines in the
scheduling order; (3) the court had set the May 13, 2013 trial date a year prior,
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                                 No. 13-40389
in May 2012; (4) the court had time in May 2013 to try the case, but the court
calendar was later occupied with cases in four different divisions; and (5) “the
parties had plenty of time to pursue a potential resolution.” The Myers have
not shown that the district court abused its discretion in denying a continuance
or that they were prejudiced by the ruling. In their motion to continue the trial
date and deadlines for pretrial filings, the parties did not ask the court to
refrain from ruling on the pending motion to dismiss or motion to amend. As
a result, the court’s denial of the motion for a continuance did not affect the
court’s subsequent dismissal of the case. The Myers have not shown that the
district court erred in denying relief under Rule 59(e) on this ground.
                                       II.
      For the foregoing reasons, the district court’s March 7, 2013 order
denying the Myers’s Rule 59(e) motion to alter or amend judgment is
AFFIRMED.




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