                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         OCT 18 2002
                                     TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


JAMES JOEL SUMPTER; DENISE
SUMPTER,

          Plaintiffs - Appellants,
                                                       No. 02-6104
v.
                                                 D.C. No. CIV-00-1774-C
                                                    (W. D. Oklahoma)
DOWELL COMPANY; DOWELL, a
division of Schlumberger Technology
Corporation; DOWELL CEMENTING,

          Defendants - Appellees.




                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      The plaintiffs, Joel and Denise Sumpter, brought an action in tort to recover

for Joel Sumpter’s injury after a cement well head fell on his ankle while he was

working in the oil fields of Saudi Arabia. Because they did not know who

designed, manufactured, or owned the cement well head, the Sumpters’ complaint

named a number of defendants. They succeeded in serving only one defendant:

Dowell Texas. When Dowell Texas moved for summary judgment on the ground

that it had no connection to the well head, the Sumpters moved to amend their

complaint to add a new party, Dowell Saudi Arabia, as a defendant. The district

court denied the Sumpters’ motion to amend and granted Dowell Texas’ motion

for summary judgment. The Sumpters appeal the district court’s denial of their

motion to amend. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291

and affirms.

      The sole issue on appeal is whether the district erred in denying the

Sumpters’ motion to amend their complaint. This court reviews a district court’s

denial of a motion to amend under an abuse of discretion standard. Varley v.

Tampax, Inc., 855 F.2d 696, 700 (10th Cir. 1988). A district court decision

constitutes an abuse of discretion only if it is “arbitrary, capricious, whimsical, or

manifestly unreasonable.” Caletti v. Cudd Pressure Control, 165 F.3d 767, 777

(10th Cir. 1999) (quotation omitted).




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      In denying the Sumpters’ motion to amend, the district court concluded that

with less than two weeks before the scheduled trial date the interests of justice

would not be served by granting the Sumpters leave to amend their complaint.           It

further noted that

      it would not be in the interests of justice to grant Plaintiffs leave to
      amend their complaint. The record reveals that Plaintiffs were
      indeed advised from the outset of this litigation that they had not
      named the proper party. Despite such warnings, Plaintiffs obviously
      did not conduct the necessary discovery to identify the proper parties
      to this action. Granting leave to amend would only reward Plaintiffs
      for their dilatory conduct and missed opportunities to correct their
      pleading deficiencies.

      Upon review of the parties’ briefs and contentions on appeal, the district

court order, and the entire record, it is clear that the district court did not abuse its

discretion. The Sumpters had nearly a year from the date of Dowell Texas’

amended answer to conduct further discovery as to who was the proper defendant.

The district court quite correctly noted that the Sumpters’ failure to undertake

reasonable steps to discover the proper defendant weighs heavily against granting

their motion to amend. This is especially true when the motion to amend was

filed just two weeks before the scheduled start of trial. This court concludes the

district court did not abuse its discretion in denying the Sumpters’ motion to




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amend their complaint and affirms for substantially the same reasons provided by

the district court.

                                     ENTERED FOR THE COURT



                                     Michael R. Murphy
                                     Circuit Judge




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