                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 29, 2006

                                                         Charles R. Fulbruge III
                           No. 04-41492                          Clerk
                         Summary Calendar


MARIA H. COVARRUBIAS, Individually and as Administrator and
Successor in interest for the Estate of Jose Vargas, Deceased and
as Guardian for Ricardo Vargas, a Minor; JOSE G. VARGAS MENDOZA;
ANGELINA VALENCIA MORALES; MARIA TERESA ALVARADO MENDEZ,
Individually and as Administrator and Successor in Interest of
Estate of Guillermo Acosta Zamora; VICTOR H. ACOSTA ALVARADO;
RONALD ACOSTA ALVARADO; LUIS ALBERTO ACOSTA ALVARADO,

                                    Plaintiffs-Appellants,

versus

FIVE UNKNOWN INS/BORDER PATROL AGENTS; ET AL.,

                                    Defendants,

FIVE UNKNOWN INS/BORDER PATROL AGENTS; DOE DEFENDANTS 1-10
INCLUSIVE; UNITED STATES OF AMERICA; INS AGENT GEORGE F. FELTON,
III; INS AGENT DANIEL ZACHRINGER; INS AGENT PATRICK B. MCDERMOTT,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 1:02-CV-132
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Maria H. Covarrubias and her co-plaintiffs (collectively,

“the plaintiffs”) appeal the summary judgment dismissal of their

Fifth Amendment claims against the individual defendants raised


     *
       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this opinion should not be published and is not precedent except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.
                            No. 04-41492
                                 -2-

in this suit under Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971).      They argue that the

district court erred in denying their FED. R. CIV. P. 36(b)

motion to withdraw or amend their admissions.

       “This Circuit has stressed that a deemed admission can only

be withdrawn or amended by motion in accordance with Rule 36(b).”

In re Carney, 258 F.3d 415, 419 (5th Cir. 2001).         The district

court “may permit withdrawal or amendment when the presentation

of the merits of the action will be subserved thereby and the

party who obtained the admission fails to satisfy the court that

withdrawal or amendment will prejudice that party in maintaining

the action or defense on the merits.”      Rule 36(b).    Rulings

granting or denying leave to withdraw or amend Rule 36 admissions

are reviewed for abuse of discretion.      In re Carney, 258 F.3d at

419.    Even when the party seeking to withdraw or amend admissions

establishes the two-factor test set forth under Rule 36(b), “a

district court still has discretion to deny a request for leave

to withdraw or amend an admission.”     Id.

       The plaintiffs contend that the district court should have

considered that their responses to the requests for admission

were served on August 26, 2003, only nine days beyond the 30-day

period allowed by FED. R. CIV. P. 36(a).      They assert that they

are entitled to a presumption, based on a proof of service

attached to the responses, that their responses to the requests

for admissions were received by the defendants.      The plaintiffs
                           No. 04-41492
                                -3-

argue that the defendants would not have been prejudiced by

relying on the admissions for nine days and that any reliance on

the admissions beyond the date of service was unreasonable.

     The record shows that the plaintiffs did not move under Rule

36(b) to withdraw or amend their responses until August 9, 2004,

over 11 months after the responses were due.    The district court

applied the two-part test set out in Rule 36(b) and determined

that prejudice existed because four years had passed since the

drownings, due in part to the delay of almost one year in moving

to withdraw the admissions.   It also explained its ruling by

noting that plaintiffs “have not acted responsibly and timely

throughout this matter,” including in not perfecting service

until 28 months after the drowning incident, failing to appear

for a pre-trial conference, delaying discovery, and delaying

their filing of the Rule 36(b) motion.

     “Generally, an abuse of discretion only occurs where no

reasonable person could take the view adopted by the trial

court.”   Dawson v. United States, 68 F.3d 886, 896 (5th Cir.

1995) (internal quotation marks and citation omitted).

Regardless of the two-factor test, given the plaintiffs’ lack of

diligence in pursuing this suit, the district court did not abuse

its discretion in denying the motion.     See In re Carney, 258 F.3d

at 419.   The plaintiffs mistakenly ignore Carney in arguing that

the district court should have considered only the two-factor

test.
                          No. 04-41492
                               -4-

     The plaintiffs have waived any argument regarding the

dismissal of other claims or defendants by failing to brief them.

See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).     The

judgment of the district court is AFFIRMED.
