                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                                                           F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                               May 9, 2005
                             FOR THE FIFTH CIRCUIT                     Charles R. Fulbruge III
                                                                               Clerk


                                    No. 04-40756



      HERMAN E. MITCHELL,

                                                    Plaintiff-Appellant,

                                       versus

      METROPOLITAN LIFE INSURANCE CO.;
      ALLSTATE LIFE INSURANCE CO.,
      Northbrook Illinois,

                                                    Defendants-Appellees..


                   Appeal from the United States District Court for
                            the Eastern District of Texas
                           (USDC No. 4:01-CV-30-PNB)
          _________________________________________________________


Before REAVLEY, JONES and GARZA, Circuit Judges.

PER CURIAM:*

      We affirm the opinion of the district court for the following reasons:

      1. The district court properly entered summary judgment in defendants’



      *
        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should not be published and is not precedent except under the limited circumstances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.
favor. The record as a whole establishes that no genuine issue of material fact exists

supporting this independent action for fraud on the court. See Capital Concepts

Props. 85-1 v. Mut. First, Inc., 35 F.3d 170, 174 (5th Cir. 1994); Browning v.

Navarro, 826 F.2d 335, 345 (5th Cir. 1987). The evidence shows that Mitchell’s

employment was terminated when he retired as a result of the buy-out of Herring

Marathon Group, Inc., and not “by reason of sickness or accident.” He was

therefore ineligible to receive benefits under the presumptive disability provision he

alleges defendants wrongfully withheld in the underlying action. Mitchell’s affidavit

alleging otherwise cannot alone defeat summary judgment, and he presents no other

evidence showing that his loss of vision caused his retirement. Galindo v. Precision

Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).

      Mitchell presents no evidence supporting his allegation that “own occupation

disability” under the plan meant that the claimant, due to sickness or injury, could

not perform any material job duty. On the contrary, the record shows that “own

occupation disability” was defined as the inability of the claimant to perform each

material duty of his job (as opposed to any job), due to sickness or injury, and that

defendants used this definition in considering Mitchell’s claim.

      Thus, the evidence shows that neither the presumptive disability provision nor

the definition of own occupation disability that Mitchell alleges were wrongfully

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withheld in the underlying action could have supported his claim for benefits in that

action. Consequently, Mitchell has not presented a triable issue that defendants’

actions foreclosed to him the opportunity to have a fair and complete trial or

rendered the trial so fundamentally unfair as to undermine our confidence that the

judgment was sound. Browning, 826 F.2d at 345. Summary judgment in favor of

defendants was therefore appropriate.

      2. The district court acted within its discretion in denying Mitchell’s motion

for a continuance. See HC Gun & Knife Shows, Inc. v. City of Houston, 201 F.3d

544, 549 (5th Cir. 2000). Mitchell sought the continuance to depose attorneys Huck

and Chapman regarding their decision not to produce the underwriting file. Because

the district court correctly found that Mitchell could not establish fraud on the court

because defendants’ withholding of the file had not foreclosed to him the

opportunity to fully and fairly litigate the underlying action, further inquiry into

Huck’s and Chapman’s reasons for not producing the file would have been

pointless.

      3. The district court acted within its discretion in permitting defendants to file

an answer after the scheduling deadline had passed. See S&W Enters. v. Southwest

Bank of Ala., 315 F.3d 533, 535 (5th Cir. 2003). The court correctly applied the

S&W factors. See id. at 535-36.

                                            3
      4. We decline Mitchell’s invitation to review documents provided to the

district court for in camera inspection and “make a de novo determination as to

whether or not any additional documents should have been produced.” Mitchell

claims that the documents establish a scheme to defraud the district court in the

underlying action by withholding the underwriting file. The existence of such a

scheme is no longer relevant in light of our conclusion that the withholding of the

file, for whatever reason, did not diminish Mitchell’s ability to fully and fairly

litigate the underlying action.

AFFIRMED.




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