     Case: 14-20653      Document: 00513187947         Page: 1    Date Filed: 09/10/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-20653                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
IESHA GRANT,                                                            September 10, 2015
                                                                           Lyle W. Cayce
              Plaintiff–Appellant,                                              Clerk

v.

CITY OF HOUSTON; KYE NAQUIN; DIANA BOCANEGRA; ANTONIO
GRACIA; DAVID RUSSELL; ROBERT SIMPSON; CHASE CROMIER,

              Defendants–Appellees.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-3278


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Appellant Iesha Grant (Grant) sued the City of Houston and six Houston
Police Department (HPD) officers, alleging several claims under 42 U.S.C.
§ 1983. The district court granted summary judgment and, in the alternative,
dismissed some of Grant’s claims under Rule 12(c). We affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-20653    Document: 00513187947    Page: 2   Date Filed: 09/10/2015



                                No. 14-20653
                                       I
      In September 2010, a number of HPD officers arrived at Grant’s home to
execute an arrest warrant for her brother, Thomas Grant (Thomas), who had
allegedly violated his probation. Upon their arrival, the officers set up a
perimeter around the residence. Shortly after Officer Robert Simpson knocked
on the front door, Thomas, carrying Grant’s infant son, walked out onto the
second-story balcony. The officers instructed Thomas to open the front door so
they could speak to him. Thomas walked back inside the residence, where
officers stationed on the rear perimeter observed him pour an unidentified
liquid into a toilet. Thomas was apprehended without incident after exiting
the residence through the rear door.
      After securing Thomas and the infant in a patrol car, the officers
performed a protective sweep of the residence. During the sweep, the officers
discovered narcotics and a large amount of cash. Following the sweep, Grant
arrived at the residence. The officers asked her permission to search the
residence more thoroughly. Because Grant did not consent to a search, the
officers obtained a search warrant.
      After the warrant issued, Officer Steven Fisher arrived to search the
residence with a narcotics detection canine. During the search, Grant’s dog,
Buster, who had been locked inside Grant’s bathroom, began barking. Grant
informed the officers that Buster had recently had a leg amputated because of
an infection. To remove Buster from the immediate search area, Fisher, an
experienced dog handler, led Buster downstairs and placed him in the garage.
      Subsequently, Officers Simpson and Damian Garcia volunteered to
search the bottom floor of the residence, which included the garage. As they
entered the garage, Simpson observed a pit bull inside a kennel situated
against the garage wall. He began searching certain pieces of luggage, which
were stacked in the garage, for narcotics and paraphernalia. Garcia remained
                                       2
    Case: 14-20653     Document: 00513187947     Page: 3   Date Filed: 09/10/2015



                                  No. 14-20653
by the door from which they had entered. As Simpson bent down to inspect
the luggage, he “heard the loud, sharp sound of aggressive barking and
snarling coming from behind [him].” Thinking that the pit bull might have
escaped from its kennel, Simpson turned around and saw Buster, “a medium-
sized, yellow, mixed-breed dog, with its ears folded back along the top of its
head, its teeth showing, its head lowered, and standing in an aggressive
stance.”   As Simpson turned to face Buster, the dog charged towards the
officer’s legs, “snapping its teeth and turning its head sideways so that it could
bite [his] leg.”   Simpson kicked Buster twice, but the dog continued its
aggressive approach. After retreating to a corner, Simpson drew his pistol and
fired at Buster. Simpson’s first shot caused Buster to collapse onto the floor,
but the dog quickly recovered and continued to charge at Simpson. Simpson’s
second shot penetrated Buster’s neck, instantly killing the dog.
      Simpson subsequently filed a report describing the incident, and Garcia
filed a statement corroborating Simpson’s account.         The Internal Affairs
Division of HPD investigated and determined that the shooting was justified.
The HPD Administrative Disciplinary Committee reviewed the incident and
reached the same conclusion. An HPD crime-scene reconstruction expert, who
examined the forensic evidence, concurred. But Grant retained a veterinary
expert, John Otto, DVM, who contradicted the eyewitness accounts, claiming
that Buster’s neck wound was “most likely an exit wound,” meaning that
Simpson may have shot Buster from behind. Grant admitted that Buster had
aggressive tendencies and that she heard aggressive barking from the garage
prior to Simpson’s discharge of his firearm.
      The State of Texas brought a forfeiture action to retain the cash
discovered in Grant’s residence. Several months later, Grant filed the present
42 U.S.C. § 1983 action, which she styled a counterclaim, against the City of
Houston and eleven HPD officers. The defendants removed the case to federal
                                        3
     Case: 14-20653       Document: 00513187947          Page: 4     Date Filed: 09/10/2015



                                       No. 14-20653
court. Grant subsequently filed an amended complaint, adding an additional
officer as a defendant and alleging that the defendants violated § 1983 by
illegally searching her residence, seizing her money, and killing Buster.
Following discovery, the defendants filed a motion for judgment on the
pleadings or in the alternative for summary judgment. Grant entered into a
settlement regarding the seizure of her money and dismissed six officers from
the action, including Garcia. She then filed a Motion to Re-align the Parties
and for Leave to File Third Amended Complaint.                      The magistrate judge
granted the motion to realign the parties but denied Grant leave to amend her
complaint. Several weeks later, the district court granted summary judgment
in favor of the defendants and, in the alternative, determined that Grant failed
to plead her claims pertaining to municipal liability and the seizure of her
pistol adequately. Grant timely appealed.
                                                   II
       As an initial matter, “we must consider the basis of our own jurisdiction,
sua sponte if necessary.” 1 None of the defendants were named as a party in
the original forfeiture proceeding that the State of Texas filed against Grant
in Texas court. Grant asserted claims, which she styled counterclaims, against
the present defendants in her answer to the State of Texas’s notice of seizure
and intended forfeiture. Grant was correct to characterize these claims as
counterclaims, rather than third-party claims, because there is no basis for her
to assert that the counter-defendants are liable for any part of the money the
State of Texas sought to seize. 2           Under the well-pleaded complaint rule,




       Perez v. Stephens, 784 F.3d 276, 280 (5th Cir. 2015) (per curiam) (citing Wilkens v.
       1

Johnson, 238 F.3d 328, 329-30 (5th Cir. 2001)).
       2See Texas ex rel. Bd. of Regents of Univ. of Tex. Sys. v. Walker, 142 F.3d 813, 816 (5th
Cir. 1998); Third-Party Complaint, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining third-
party complaint as “[a] complaint filed by the defendant against a third party, alleging that
                                               4
     Case: 14-20653          Document: 00513187947      Page: 5     Date Filed: 09/10/2015



                                         No. 14-20653
counterclaims are ordinarily insufficient to permit counter-defendants to
assert federal jurisdiction. 3          But when, as here, a defendant lodges a
counterclaim that arises under federal law against a newly-joined party, that
party may properly remove the case to federal court under 28 U.S.C. § 1441. 4
Accordingly, we are satisfied that we have jurisdiction to resolve this case.
                                                  III
       We review a district court’s “grant of summary judgment de novo,
applying the same standards as the district court.” 5 Summary judgment is
warranted if, viewing the evidence in the light most favorable to the non-
moving party, “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” 6
       Government officials performing discretionary functions are entitled to
qualified immunity against claims brought under 42 U.S.C. § 1983, meaning
that “they ‘generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” 7 When an official




the third party may be liable for some or all of the damages that the plaintiff is trying to
recover from the defendant” (citing FED. R. CIV. P. 14)).
       3 See Bd. of Regents, 142 F.3d at 816 n.2 (“The well-pleaded complaint rule bases
removal jurisdiction on the existence of a claim lying within federal jurisdiction on the face
of a plaintiff's well-pleaded complaint. There has never been a suggestion that a defendant
could, by asserting an artful counterclaim, render a case removable in violation of the well-
pleaded complaint rule.” (citing Rivet v. Regions Bank of La., 522 U.S. 470 (1998))); 14B
CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3722 (4th ed. 2015).
       4   See Bd. of Regents, 142 F.3d at 816.
       5Burnett Ranches, Ltd. v. United States, 753 F.3d 143, 146 (5th Cir. 2014) (citing
Duval v. N. Assurance Co. of Am., 722 F.3d 300, 303 (5th Cir. 2013)).
       6   FED. R. CIV. P. 56(a).
       Toney v. Owens, 779 F.3d 330, 336 (5th Cir. 2015) (quoting McClendon v. City of
       7

Columbia, 305 F.3d 314, 322 (5th Cir. 2002) (en banc)).
                                                  5
    Case: 14-20653          Document: 00513187947          Page: 6     Date Filed: 09/10/2015



                                         No. 14-20653
invokes the qualified immunity defense, the burden shifts to the plaintiff to
demonstrate that the defense does not apply. 8
      To overcome qualified immunity, a plaintiff must demonstrate “(1) that
the official violated a statutory or constitutional right, and (2) that the right
was ‘clearly established’ at the time of the challenged conduct.” 9 We have
discretion to decide “which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the particular case at
hand.” 10 When analyzing qualified immunity, “we ‘may not resolve genuine
disputes of fact in favor of the party seeking summary judgment.’” 11
      We review de novo a district court’s ruling on a Rule 12(c) motion for
judgment on the pleadings, applying the same standard applicable to a Rule
12(b)(6) motion to dismiss. 12           “To avoid dismissal, a plaintiff must plead
sufficient facts to state a claim for relief that is plausible on its face.” 13
      We review for abuse of discretion the district court’s denial of a motion
for leave to amend a complaint. 14
                                               IV
      We first address Grant’s claim that the officers used excessive force to
seize Buster in violation of the Fourth Amendment.




      8   Id. (citing Kitchen v. Dallas Cnty., 759 F.3d 468, 476 (5th Cir. 2014)).
      9 Trent v. Wade, 776 F.3d 368, 377 (5th Cir. 2015) (quoting Morgan v. Swanson, 659
F.3d 359, 371 (5th Cir. 2011) (en banc)).
      10   Id. (quoting Pearson v. Callahan, 555 U.S. 223, 242 (2009)).
      11   Id. (quoting Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam)).
      12  Johnson v. Teva Pharms. USA, Inc., 758 F.3d 605, 610 (5th Cir. 2014) (citing
Gentilello v. Rege, 627 F.3d 540, 543-44 (5th Cir. 2010)).
      13   Id. (quoting Gentilello, 627 F.3d at 544).
      14Moore v. Manns, 732 F.3d 454, 456 (5th Cir. 2013) (per curiam) (citing Wilson v.
Bruks–Klockner, Inc., 602 F.3d 363, 368 (5th Cir. 2010)).
                                                6
     Case: 14-20653         Document: 00513187947         Page: 7     Date Filed: 09/10/2015



                                        No. 14-20653
       The Fourth Amendment guarantees “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures.” 15 A “seizure” of property occurs when an officer meaningfully
interferes “with an individual’s possessory interests in that property.” 16 The
destruction of property constitutes a meaningful interference with an
individual’s possessory interests. 17 It is beyond dispute that Simpson “seized”
Buster within the meaning of the Fourth Amendment. 18
       Seizures by law-enforcement officials violate the Fourth Amendment
only if they are unreasonable. 19             To determine whether a seizure was
reasonable, we look to the totality of the circumstances, balancing “the nature
and quality of the intrusion on the individual’s Fourth Amendment interests
against the countervailing governmental interests at stake.” 20
                                               A




       15   U.S. CONST. amend. IV.
        Severance v. Patterson, 566 F.3d 490, 501 (5th Cir. 2009) (quoting United States v.
       16

Jacobsen, 466 U.S. 109, 113 (1984)).
       17See Jacobsen, 466 U.S. at 124-25 (“[T]he field test did affect respondents’ possessory
interests protected by the [Fourth] Amendment, since by destroying [the property] it
converted what had been only a temporary deprivation of possessory interests into a
permanent one.”).
       18 See San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d
962, 975 (9th Cir. 2005) (‘“The killing of [a] dog is a destruction recognized as a seizure under
the Fourth Amendment’ and can constitute a cognizable claim under § 1983.” (alteration in
original) (quoting Fuller v. Vines, 36 F.3d 65, 68 (9th Cir. 1994), overruled on other grounds
by Robinson v. Solano Cnty., 278 F.3d 1007, 1013 (9th Cir. 2002))); see also Strickland v.
Medlen, 397 S.W.3d 184, 198 (Tex. 2013) (noting that under Texas law, dogs are personal
property).
       19See Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014) (“A claim that law-
enforcement officers used excessive force to effect a seizure is governed by the Fourth
Amendment’s ‘reasonableness’ standard.” (citing Graham v. Connor, 490 U.S. 386 (1989) and
Tennessee v. Garner, 471 U.S. 1 (1985))).
       20   Id. (quoting Graham, 490 U.S. at 396).
                                               7
    Case: 14-20653          Document: 00513187947         Page: 8   Date Filed: 09/10/2015



                                           No. 14-20653
      Grant, relying on the Ninth Circuit’s decision in San Jose Charter of
Hells Angels Motorcycle Club v. City of San Jose, 21 argues that Officers Naquin,
Bocanegra, Gracia, Russell, and Cromier, who were not in the garage, are
responsible for Buster’s death because their alleged “complete lack of
preparation ensured that Simpson . . . would have NO CHOICE . . . but to use
lethal force to shoot and kill Buster.”
      In Hells Angels, police officers executed simultaneous search warrants
on the residences of several members of the Hells Angels and at the group’s
club house. 22 The officers were aware that dogs were present on several of the
members’ properties and “planned either to isolate or to shoot the dogs,” but
they had no specific plan to isolate the dogs or to use any non-lethal methods
to incapacitate them. 23 During the searches, the officers shot and killed several
of the members’ dogs. 24 The Hells Angels sued, alleging that the officers
unreasonably seized their dogs in violation of 42 U.S.C. § 1983. 25 Balancing
the nature of the intrusion on the members’ Fourth Amendment interests
against the governmental interests at stake, the district court denied qualified
immunity. 26 The Ninth Circuit upheld the district court’s denial of qualified
immunity, reasoning that the killing of the dogs represented a severe
intrusion, and that because the officers knew that some of the members owned
dogs and had ample time to prepare a non-lethal plan to subdue the dogs, the




      21   402 F.3d 962 (9th Cir. 2005).
      22   Id. at 965.
      23   Id. at 968-69.
      24   Id.
      25   Id. at 965-66.
      26   Id. at 966.
                                                8
     Case: 14-20653          Document: 00513187947         Page: 9     Date Filed: 09/10/2015



                                        No. 14-20653
officers’ proffered governmental interests could not justify the killing of the
animals. 27
       But Hells Angels is readily distinguishable from the instant case. Here,
the officers had no advance notice that a dog was present on the premises to
be searched.         Moreover, Officer Fisher, an experienced dog handler, took
reasonable precautions to isolate Buster while the house was being searched.
Finally, while Buster’s killing doubtlessly presents a grave intrusion on
Grant’s property rights, in this case, unlike in Hells Angels, the governmental
interest of safety provides a sound justification. 28 The evidence in the record
indicates that Simpson was genuinely surprised by Buster’s presence and
aggression, and Grant has marshalled only a scintilla of evidence to dispute
the expert and eyewitness testimony indicating that Simpson exhausted all
non-lethal options prior to using lethal force against the dog.                        Naquin,
Bocanegra, Gracia, Russell, and Cromier could not have foreseen that Simpson
would be forced to resort to such force in the course of searching the garage.
       To the extent Grant contends that the foregoing officers should have
intervened to prevent the shooting, her claim also fails. Only Simpson and
Garcia, who is no longer party to this suit, were actually present when Buster
was shot. The other officers did not participate in the shooting and could not
have intervened to prevent it. Contrary to Grant’s allegations of conspiracy,
there is no evidence that the officers knew that Simpson would shoot Buster or
placed him in a position in which shooting Buster was inevitable. Grant has
failed to establish that officers Naquin, Bocanegra, Gracia, Russell, or Cromier



       27   See id. at 975-78.
       28See id. at 977 (“While the governmental interest of safety might have provided a
sound justification for the intrusion had the officers been surprised by the presence of the dogs,
the same reasoning is less convincing given the undisputed fact that the officers knew about
the dogs a week before they served the search warrants.” (emphasis added)).
                                                9
    Case: 14-20653       Document: 00513187947         Page: 10     Date Filed: 09/10/2015



                                      No. 14-20653
violated any of Grant’s statutory or constitutional rights. Accordingly, we hold
that the district court did not err in granting summary judgment in favor of
those defendants on the ground of qualified immunity.
                                             B
       Grant alleges that by shooting Buster, Simpson violated a number of
Texas statutes which, taken collectively, outline an administrative procedure
for the destruction of a dog that has caused death or serious bodily injury. But
these statutes are clearly designed to provide due process for a dog owner to
contest the labelling of her dog as “dangerous.” 29 Plainly, these statutes did
not inhibit Simpson’s right to use deadly force to protect himself from the
threat of serious bodily harm. 30 Accordingly, these provisions cannot be used
as a basis to establish that Simpson’s conduct was unreasonable.
       Grant also contends that the district court erred in granting summary
judgment in favor of Simpson on the ground that a genuine dispute exists as
to the reasonableness of Simpson’s use of force. This claim also fails. We
examine an officer’s use of deadly force from
       the perspective “of a reasonable officer on the scene, rather than
       with the 20/20 vision of hindsight.” We thus “allo[w] for the fact
       that police officers are often forced to make split-second
       judgments—in circumstances that are tense, uncertain, and
       rapidly evolving—about the amount of force that is necessary in a
       particular situation.” 31




       29See, e.g., In re Loban, 243 S.W.3d 827, 830 (Tex. App.—Fort Worth 2008, no pet.)
(“Section 822.0421 of the Texas Health and Safety Code authorizes an appeal from a
dangerous dog declaration . . . .”).
       30See TEX. PENAL CODE § 9.51(a), (d) (defining the circumstances under which a peace
officer may use deadly force).
       31Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014) (alteration in original) (citation
omitted) (quoting Graham v. Connor, 490 U.S. 386, 396-97 (1989)).
                                             10
   Case: 14-20653     Document: 00513187947      Page: 11   Date Filed: 09/10/2015



                                  No. 14-20653
      According to Simpson and Garcia, the only two eyewitnesses to the
shooting, Buster backed Simpson into a corner, biting at Simpson’s legs.
Simpson only fired at the dog after “it was clear that the dog was aggressively
trying to harm Officer Simpson.” The Internal Affairs Division concluded that
“[a]ll physical evidence collected is consistent with Officer Simpson’s
statements,” and that it was reasonable for Simpson to believe “that he was
imminently in danger of being bitten” by Buster at the time he discharged his
weapon. A crime scene reconstruction expert for the defense observed that
Buster’s body was found facing the southwest corner of the garage, precisely
where Simpson claimed he was standing. The expert also noted that the
absence of a blood drip trail indicated that Buster died “very near the time the
fatal wound was inflicted,” and that Buster “appears to have been struck by a
bullet fired travelling from front to back and along the underside of the dog’s
head and throat.” The expert also opined that the location of the bullets and
bullet casings supported Simpson’s account. Based on this forensic evidence,
he concluded that Simpson was standing “in the southwest corner of the garage
when he discharged his firearm at an approaching and aggressive dog.
Furthermore, the dog was not retreating or fleeing from the officer, but was in
fact running towards and [sic] the officer at the time the lethal shot was fired.”
Finally, Grant conceded that the dog had aggressive tendencies, and that she
heard Buster “aggressively barking prior to the shots being fired.”
      The only evidence Grant has marshaled to dispute the eyewitness
accounts is Otto’s statement that he suspected Buster was shot from behind.
Otto based his opinion on photographs taken of the scene, which depicted blood
projected in front of Buster’s body. He explained that the bullet wound in
Buster’s neck was “most likely an exit wound” because “[a]n entrance wound
would be much smaller and more circular.” But Otto’s interpretation of the
photographic evidence is contradicted not only by the defendants’ experts, but
                                       11
    Case: 14-20653         Document: 00513187947          Page: 12     Date Filed: 09/10/2015



                                        No. 14-20653
also by Don Blake, a crime scene reconstruction expert whose services Grant
retained. Blake criticized HPD’s expert reports on the ground that the police
failed to preserve and document the scene of the shooting adequately, but he
also found fault with Otto’s conclusion that Buster’s neck wound was an exit
wound, observing that, “[i]f this is the only wound, it stands to reason it must
be an entrance wound, and . . . I have seen many entrance wounds that are not
circular in nature.”
       Grant has failed to raise a genuine dispute as to whether Buster’s neck
wound was an exit wound. “[I]f the trial court concludes that the scintilla of
[expert] evidence presented supporting a position is insufficient to allow a
reasonable juror to conclude that the position more likely than not is true, the
court remains free to . . . grant summary judgment.” 32 By granting summary
judgment on this claim, the district court implicitly determined that Otto’s
opinion was a mere scintilla of evidence, one insufficient to generate a genuine
dispute of material fact. 33         In light of the extensive physical and expert
testimony indicating that Buster’s neck wound was an entry wound, Otto’s
statement to the contrary is insufficient to allow a reasonable juror to conclude,
by a preponderance of the evidence, that Simpson shot Buster from behind. 34
Accordingly, we affirm the district court’s grant of summary judgment in
Simpson’s favor.



       32  Munoz v. Orr, 200 F.3d 291, 301 (5th Cir. 2000) (second and third alterations in
original) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993)); see also
id. (“If the basis for an expert’s opinion is clearly unreliable, the district court may disregard
that opinion in deciding whether a party has created a genuine issue of material fact.” (citing
Berry v. Armstrong Rubber Co., 989 F.2d 822, 824 (5th Cir. 1993))).
       33 See Celtic Marine Corp. v. James C. Justice Cos., 760 F.3d 477, 485 (5th Cir. 2014)
(“At best, this single [piece of evidence] amounts to a mere ‘scintilla of evidence’ that cannot
defeat summary judgment.” (quoting Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337,
343 (5th Cir. 2007))).
       34   See Daubert, 509 U.S. at 596.
                                               12
    Case: 14-20653          Document: 00513187947     Page: 13    Date Filed: 09/10/2015



                                       No. 14-20653
                                            V
      Grant next raises a municipal liability claim under Monell v. Department
of Social Services 35 and City of Canton v. Harris, 36 arguing that the City of
Houston is liable for failing to properly train its police officers to determine
when force may lawfully be used against animals.                    The district court
determined that Grant failed to plead her municipal liability claim adequately.
To properly plead a municipal liability claim, “a plaintiff must allege ‘that
there was either an official policy or an unofficial custom, adopted by the
municipality, that was the moving force behind the claimed constitutional
violation.’” 37 Neither Grant’s complaint nor her amended complaint “makes
any mention of such a policy or custom.” 38 Grant does not dispute in her
briefing on appeal the district court’s finding that she failed to plead a policy
or custom. We agree with the district court that Grant’s municipal liability
claim fails on the pleadings.
                                           VI
      Grant also alleges that the officers violated her Second Amendment right
to bear arms by seizing a pistol that she lawfully owned. In reality, this claim
is likely a Fourth Amendment claim that the police unlawfully seized her
pistol. Regardless, Grant did not state that the pistol had been unlawfully
seized, either in her complaint or in her amended complaint. Because she
failed to plead sufficient facts to state a claim regarding the seizure of her
pistol, the district court did not err by dismissing such claim. 39


      35   436 U.S. 658, 690 (1978).
      36   489 U.S. 378, 388 (1989).
      37 Thompson v. Mercer, 762 F.3d 433, 441-42 (5th Cir. 2014) (quoting Duvall v. Dallas
Cnty., 631 F.3d 203, 209 (5th Cir. 2011) (per curiam)).
      38   Id. at 442.
      39   Cf. id. at 441-42.
                                            13
    Case: 14-20653      Document: 00513187947        Page: 14     Date Filed: 09/10/2015



                                     No. 14-20653
                                          VII
        Finally, Grant contends that the district court erred by denying her leave
to file a third amended complaint. The State of Texas initiated this case when
it filed a notice of seizure and intended forfeiture against Grant in September
2010.        Approximately nine months later, in July 2011, Grant filed a
counterclaim against the City and eleven HPD officers, in which she alleged
that by seizing her money and killing Buster, the defendants violated her
Fourth Amendment right to freedom from unreasonable searches and seizures.
        The defendants removed the case to federal court in September 2011. In
January 2012, the district court entered a scheduling order, which provided
that motions for leave to amend pleadings must be filed by March 12, 2012.
Grant filed her second amended third-party complaint on March 9, 2012, three
days prior to the filing deadline. The defendants moved for summary judgment
in September 2013. Grant did not move to amend her pleadings for a third
time until May 2014—eight months after the defendants filed their motion for
summary judgment and more than two years after the pleadings deadline. Her
third amended complaint would have added the municipal liability and
unlawful firearm seizure claims she now seeks to raise.
        Although Federal Rule of Civil Procedure 15(a) normally governs the
amendment of pleadings, Rule 16(b) “governs the amendment of pleadings
after a scheduling order’s deadline to amend has expired.” 40 Rule 16(b)(4)
provides that after a district court has entered a scheduling order, the
“schedule may be modified only for good cause and with the judge’s consent.”
To establish good cause, the party seeking to modify the scheduling order must
show “that the deadlines cannot reasonably be met despite the diligence of the



       Squyres v. Heico Cos., 782 F.3d 224, 237 (5th Cir. 2015) (quoting Filgueira v. U.S.
        40

Bank Nat’l Ass’n, 734 F.3d 420, 422 (5th Cir. 2013) (unpublished) (per curiam)).
                                           14
    Case: 14-20653          Document: 00513187947       Page: 15     Date Filed: 09/10/2015



                                         No. 14-20653
party needing the extension.” 41 We consider four factors when determining
whether the party has shown good cause under Rule 16(b)(4): “(1) the
explanation for the failure to timely [comply with the scheduling order]; (2) the
importance of the [modification]; (3) potential prejudice in allowing the
[modification]; and (4) the availability of a continuance to cure such
prejudice.” 42
       Grant has failed to show good cause for her delay. She offers no evidence
that she could not have reasonably raised the municipal liability and firearm
seizure claims in her first or second amended complaints. Further, she tenders
no explanation to justify her inaction during the two years that elapsed
between the scheduling order’s deadline and her request to file a third
amended complaint.
       She has also failed to show that her delay did not prejudice the
defendants.        The defendants filed their summary judgment motion eight
months before Grant requested leave to amend. Because the district court
would have needed to consider another round of dispositive motions on Grant’s
newly-added claims, the defendants, to their prejudice, would have incurred
additional expenses due to Grant’s delay. 43
       Moreover, the district court exhibited considerable patience by granting
continuances when, on several occasions, the parties asked for the court to
extend various discovery deadlines. Grant advances no explanation as to why
she did not also request on those occasions a suitable extension of the deadline
to modify pleadings.



       41   Id. (quoting Filgueira, 734 F.3d at 422).
       42Id. (alterations in original) (quoting Meaux Surface Prot., Inc. v. Fogleman, 607 F.3d
161, 167 (5th Cir. 2010)).
       43   See Squyres, 782 F.3d at 238-39.
                                                15
   Case: 14-20653     Document: 00513187947        Page: 16   Date Filed: 09/10/2015



                                    No. 14-20653
      While we do not discount the importance of the claims Grant sought to
add in her third amended complaint, we conclude that, weighing the foregoing
factors, the district court did not abuse its discretion in denying Grant leave to
amend her complaint.
                                *        *         *
      For the foregoing reasons, we AFFIRM the judgment of the district court.




                                        16
