     Case: 15-31001   Document: 00513569264     Page: 1   Date Filed: 06/28/2016




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

                                                                        FILED
                                                                     June 28, 2016
                                 No. 15-31001
                                                                     Lyle W. Cayce
                                                                          Clerk
MARY SMITH; PAMELA BAGNERIS BATISTE; ROBERT BOOKMAN;
KENNETH BOURGEOIS; JAMES BROWN, JR.,

             Plaintiffs - Appellants

v.

REGIONAL TRANSIT AUTHORITY; TRANSIT MANAGEMENT OF
SOUTHEAST LOUISIANA, INCORPORATED,

             Defendants - Appellees




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before REAVLEY, HAYNES, and HIGGINSON, Circuit Judges.
HAYNES, Circuit Judge:
      The Plaintiffs-Appellants appeal the district court’s grant of summary
judgment in favor of Defendants-Appellees. The principal question on appeal
is whether the plan at issue is exempt from the Employee Retirement Income
Security Act of 1974 as a “governmental plan.” Plaintiffs also challenge the
dismissal of their successor liability and 42 U.S.C. § 1983 claims, and contend
that the district court erred in not granting their motion for additional
discovery. For the following reasons, we AFFIRM.
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                                  No. 15-31001
                                  I. Background
        Mary Smith and approximately forty other individuals (collectively,
“Plaintiffs”) are former employees of New Orleans Public Service, Inc.
(“NOPSI”) who retired from Transit Management of Southeast Louisiana
(“TMSEL”) and participated in TMSEL’s retiree welfare benefit plan (the
“Plan”). They brought claims against Defendants Regional Transit Authority
(“RTA”), TMSEL, and their insurers under the Employee Retirement Income
Security Act of 1974 (“ERISA”), and the district court dismissed the case for
lack of jurisdiction. According to the district court, the plan was exempt from
ERISA as a “governmental plan,” and the court lacked subject matter
jurisdiction. On appeal, a panel of this court vacated and remanded, noting
that:
              because a federal district court has jurisdiction to
              decide whether or not a plan is an ERISA plan as
              claimed by the plaintiff in the complaint, we conclude
              that, under Supreme Court precedent and [ACS
              Recovery Services, Inc. v. Griffin, 723 F.3d 518 (5th
              Cir. 2013)], the proper procedural vehicle to raise the
              question of whether a purported ERISA plan is a
              “governmental plan” is either Rule 12(b)(6) or, if
              factual information outside the pleadings is needed,
              Rule 56 (if factual issues cannot be resolved then, of
              course, a trial may be needed).
Smith v. Reg’l Transit Auth., 756 F.3d 340, 346–47 (5th Cir. 2014).
        After remand to the district court, Plaintiffs amended their complaint to
add a claim for successor liability against the RTA, claims under 42 U.S.C.
§ 1983, and various state law causes of action. Defendants filed a motion for
summary judgment. In response, Plaintiffs filed a motion to conduct discovery
and compel under Rule 56(d) of the Federal Rules of Civil Procedure. The
district court granted the Rule 56(d) motion in part, “limiting the time frame
and scope of any discovery to be taken to that which is relevant and necessary

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                                  No. 15-31001
to clarify the ownership, funding, and management of [TMSEL],” and referred
these discovery issues to the magistrate judge. The magistrate judge then
entered an order pursuant to an agreement between the parties to confine
discovery to agreed-upon documents and limit its temporal scope to the year
2006.
        The facts underlying this dispute are as follows. “Prior to 1983, the New
Orleans transit system was operated by [NOPSI], a private company. In the
late 1970s and early 1980s, the system converted to a publicly held system,
owned by [the RTA] and operated by [TMSEL].” Smith, 756 F.3d at 342. The
RTA was created by statute in August 1979 as “a body politic and corporate
and a political subdivision of the state of Louisiana comprising all of the
territory in the parishes of Jefferson, Orleans, St. Bernard, and St. Tammany.”
LA. REV. STAT. ANN. § 48:1654(A). The RTA’s purpose is “to plan, design, . . .
maintain, and administer a transit system within the metropolitan area to
operate same or contract therefor, lease as lessor same for operation by private
parties.” Id. § 48:1654(B). The RTA is authorized by statute to contract with
private entities to operate, maintain, and administer the transit system. Id.
§ 48:1656(4).
        TMSEL was incorporated in 1982. The Board of Directors manages the
business of TMSEL, and the members of the Board are elected by the
shareholders. From its creation until 2012, TMSEL was owned by a series of
private entities.
        In June 1983, the RTA purchased the New Orleans public transit system
from NOPSI. At the time of purchase, NOPSI and the City of New Orleans
had an existing 13(c) agreement, which provided for “fair and equitable
arrangements” for employee benefits. In accordance with the purchase of the
transit system, the RTA, TMSEL, NOPSI, and the City of New Orleans entered
into an Employee and Retiree Pension and Welfare Benefit Agreement
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(“Benefits Agreement”), which set forth the RTA and TMSEL’s obligations
regarding NOPSI’s benefit plans. Under the Agreement, the RTA and TMSEL
“shall provide or cause to be provided . . . the same coverages and levels of
benefits.”   By separate letter, TMSEL and RTA also “agreed to assume,
entirely, the rights, duties, and responsibilities contained in . . . [the] §13(c)
Agreement.”
      The general relationship between the RTA and TMSEL is discussed in
the 2001 Management Services Agreement (“MSA”). As set forth in the MSA,
TMSEL was (at that time) wholly owned by Metro New Orleans Transit, Inc.
(“Metro”), which was “engaged in the business of providing management and
advisory services for the operation of transit systems,” and TMSEL was
“engaged in the business of providing personnel necessary for the operation of
the [RTA’s transit system].”      Under the agreement, Metro would utilize
TMSEL to manage the RTA transit system. Defendants entered evidence that
TMSEL provided the day-to-day operations of the transit system. For example,
TMSEL provided bus operators, mechanics, and other support personnel.
      The MSA also provided that the RTA had the authority to remove the
General Manager and Deputy General Manager of TMSEL if these individuals
did not perform their job responsibilities in a manner acceptable to the RTA.
It also specified that “[a]ny document, report or data generated by TMSEL
related to and/or in connection with this Agreement shall be the sole property
of the RTA.” Defendants presented evidence that the RTA has the right to
inspect and audit TMSEL’s books and records and that TMSEL was funded
solely by the RTA. In fact, the MSA provides that the RTA was responsible for
providing TMSEL with the funds needed to operate and manage the transit
system, which included the payment of wages and benefits, and that all
revenue from operating the transit system was the property of the RTA, which
retained authority to direct how the funds were to be treated. In 2012, the
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                                No. 15-31001
RTA obtained 100% ownership of TMSEL.
      At the conclusion of discovery, Defendants filed another motion for
summary judgment. The district court granted summary judgment on the
federal claims and, declining to exercise supplemental jurisdiction, dismissed
the state law claims without prejudice. Plaintiffs timely appealed.
                            II. Standard of Review
      We review a grant of summary judgment de novo, applying the same
standard that the district court applied. United States v. Lawrence, 276 F.3d
193, 195 (5th Cir. 2001). Summary judgment is proper where there is no
genuine dispute of material fact, and a party is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(a). “[We] must view the evidence introduced
and all factual inferences from the evidence in the light most favorable to the
party opposing summary judgment[, but a] party opposing summary judgment
may not rest on mere conclusory allegations or denials in its pleadings.”
Hightower v. Tex. Hosp. Ass’n, 65 F.3d 443, 447 (5th Cir. 1995) (citations
omitted). We can affirm the district court’s grant of summary judgment on any
ground supported by the record. Bluebonnet Hotel Ventures, L.L.C. v. Wells
Fargo Bank, N.A., 754 F.3d 272, 276 (5th Cir. 2014). We review a denial of a
Rule 56(d) motion for discovery for an abuse of discretion. Stearns Airport
Equip. Co. v. FMC Corp., 170 F.3d 518, 534 (5th Cir. 1999).
                                III. Discussion

A. Governmental Plan
      Plaintiffs brought claims under ERISA for improper denial of benefits,
29 U.S.C. § 1132(a)(1)(B), and breach of fiduciary duty, id. § 1132(a)(2).
Governmental plans are excluded from ERISA’s framework. Id. § 1003(b)(1).
ERISA defines a governmental plan as “a plan established or maintained for
its employees by the Government of the United States, by the government of
any State or political subdivision thereof, or by any agency or instrumentality
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                                  No. 15-31001
of any of the foregoing.” Id. § 1002(32). The district court determined that the
RTA was a political subdivision of Louisiana and that TMSEL was an agency
or instrumentality of the RTA. According to the district court, because the
Plan was maintained by an agency or instrumentality of a political subdivision
of Louisiana, it was a governmental plan and exempt from ERISA, so Plaintiffs
could not prevail under ERISA as a matter of law. We agree.
      The RTA is a political subdivision of Louisiana.          Plaintiffs all but
conceded this point at oral argument; and we address it briefly. We agree with
the district court that the proper test to determine whether an entity is a
political subdivision comes from National Labor Relations Board v. National
Gas Utility District of Hawkins County, 402 U.S. 600 (1971).              Political
subdivisions are “entities that are either (1) created directly by the state, so as
to constitute departments or administrative arms of the government, or (2)
administered by individuals who are responsible to public officials or to the
general electorate.” Hawkins Cty., 402 U.S. at 604–05. As the district court
determined, the RTA is a political subdivision under either prong of this
disjunctive test. LA. REV. STAT. ANN. §§ 48:1654(A), :1655.
      We next address whether TMSEL is an agency or instrumentality of the
RTA. The statute does not define “agency or instrumentality,” and the parties
disagree about what test to apply. Plaintiffs propose that we adopt the test set
forth in Alley v. Resolution Trust Corp., under which the court examines “the
nature of an entity’s relationship to and governance of its employees” (the
“Alley test”). 984 F.2d 1201, 1205 n.11 (D.C. Cir. 1993). Although the D.C.
Circuit cautioned that this “employment relationship” test might not be
appropriate where state entities are at issue, id., the Tenth Circuit has applied
the Alley test in such a scenario, see McGraw v. Prudential Ins. Co. of Am., 137
F.3d 1253, 1257–58 (10th Cir. 1998). Plaintiffs argue that since they were
treated as private employees, application of the Alley test would result in a
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                                  No. 15-31001
conclusion that the plan was not “governmental.”
      By contrast, Defendants maintain that the proper test is the six-factor
test provided in Internal Revenue Service Revenue Ruling 57-128 (“Revenue
Ruling 57-128”), and which was applied in Rose v. Long Island Railroad
Pension Plan, 828 F.2d 910, 917–18 (2d Cir. 1987). Revenue Ruling 57-128 set
forth the following factors that the IRS considers to determine whether an
entity is an agency or instrumentality for the purposes of the Federal
Insurance Contributions Act and the Federal Unemployment Tax Act:
            (1) whether it is used for a governmental purpose and
            performs a governmental function; (2) whether
            performance of its function is on behalf of one or more
            states or political subdivisions; (3) whether there are
            any private interests involved, or whether the states
            or political subdivisions involved have the powers and
            interests of an owner; (4) whether control and
            supervision of the organization is vested in public
            authority or authorities; (5) if express or implied
            statutory or other authority is necessary for the
            creation and/or use of such an instrumentality, and
            whether such authority exists; and (6) the degree of
            financial autonomy and the source of its operating
            expenses.
Rev. Rul. 57-128, 1957-1 C.B. 311.
      In Rose, the Second Circuit noted that the IRS also used Revenue Ruling
57-128 to make determinations of agency-or-instrumentality status under 26
U.S.C. § 414(d), which “was added to the Internal Revenue Code by Title II of
ERISA and defines those ‘governmental plans’ which are exempt from certain
qualification requirements for favorable tax treatment.”        828 F.2d at 917.
Because “[t]he definition of ‘governmental plan’ in § 414(d) is virtually identical
to the definition in 29 U.S.C. § 1002(32)” and the IRS interpretations of the
statute are entitled to deference, the court adopted the Revenue Ruling 57-128
as the basis for determining that the Long Island Railroad was an agency or

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                                 No. 15-31001
instrumentality of the Metropolitan Transportation Authority. Id. at 917–18.
      In this case, the district court also applied Revenue Ruling 57-128 to
determine that TMSEL is an agency or instrumentality of the RTA.
Examining those factors, the first factor—whether TMSEL is used for a
governmental purpose and performs a governmental function—leans heavily
in favor of Defendants. TMSEL’s purpose was to manage the public transit
system in furtherance of the RTA’s mission to provide public transportation.
See Rose, 828 F.2d at 918 (managing commuter transportation satisfied first
factor).
      The second factor—whether performance of its function is on behalf of
one or more states or political subdivisions—also leans in Defendants’ favor.
TMSEL performed its function on behalf of the RTA.
      The third factor—whether there are any private interests involved, or
whether the states or political subdivisions involved have the powers and
interests of an owner—leans in favor of Plaintiffs. TMSEL was a private
company owned by private parent companies up until the RTA acquired
ownership in 2012. Notably, however, TMSEL’s status as a private company
alone does not necessitate a finding that it is not an agency or instrumentality.
See Wilcox v. Terrytown Fifth Dist. Volunteer Fire Dep’t, Inc., 897 F.2d 765,
766–68 (5th Cir. 1990) (holding that a volunteer fire department, which was a
nonprofit corporation, was an agency of a political subdivision for the purposes
of the FLSA).
      The fourth factor—whether control and supervision of the organization
is vested in public authority or authorities—weighs heavily in favor of
Defendants. The district court’s opinion sets forth a long list of all the ways
that the RTA exercised control under the MSA. By way of example, under the
MSA, the RTA had the authority to remove the General Manager and Deputy
General Manager of TMSEL. The MSA also specified that “[a]ny document,
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                                      No. 15-31001
report or data generated by TMSEL related to and/or in connection with this
Agreement shall be the sole property of the RTA.”
       The fifth factor—if express or implied statutory or other authority is
necessary for the creation and/or use of such an instrumentality, and whether
such authority exists—also weighs in favor of Defendants. The RTA is vested
with statutory authority to use TMSEL. See LA. REV. STAT. ANN. § 48:1656(4).
       The sixth factor—the degree of financial autonomy and the source of its
operating expenses—again weighs in favor of Defendants.                         Defendant
submitted extensive evidence that TMSEL was funded exclusively by the RTA.
See Rose, 828 F.2d at 918 (sixth factor met where agency or instrumentality
was “heavily dependent on state subsidies to meet its operating expenses”). 1
       The district court also noted that the IRS has since refined these factors
in IRS Revenue Ruling 89-49 (“Revenue Ruling 89-49”), which directly applies
to 26 U.S.C. § 414(d). It determined that under Revenue Ruling 89-49, the
analysis of whether TMSEL is an agency or instrumentality of the RTA does
not change. Under Revenue Ruling 89-49,
              One of the most important factors to be considered in
              determining whether an organization is an agency or
              instrumentality of the United States or any state or
              political subdivision is the degree of control that the
              federal or state government has over the
              organization’s everyday operations. Other factors
              include: (1) whether there is specific legislation
              creating the organization; (2) the source of funds for
              the organization; (3) the manner in which the
              organization’s trustees or operating board are
              selected; and (4) whether the applicable governmental
              unit considers the employees of the organization to be
              employees of the applicable governmental unit.
              Although all of the above factors are considered in


       1 Plaintiffs’ reliance on the funding for the Plan misses the mark because this factor
focuses on the source of the funding for the entity, not the funding for the plan.
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              determining whether an organization is an agency of
              a government, the mere satisfaction of one or all of the
              factors is not necessarily determinative.

Rev. Rul. 89-49, 1989-1 C.B. 117.              The most notable difference between
Revenue Ruling 89-49 and Revenue Ruling 57-128 for our purposes is that
Revenue Ruling 89-49 asks if the governmental entity treats the employees of
the organization as public employees. See Berini v. Fed. Reserve Bank of St.
Louis, Eighth Dist., 420 F. Supp. 2d 1021, 1028 (E.D. Mo. 2005). Revenue
Ruling 89-49 thus incorporates the concern expressed by Alley—the
employment relationship—but does not make it dispositive or even
predominant. 2 It thereby addresses the concerns espoused by Plaintiffs in this
case—that they were treated as private employees and not entitled to benefits
afforded to public employees.
       We conclude that the Revenue Ruling test, as refined by Revenue Ruling
89-49, strikes the appropriate balancing among concerns in determining
whether a plan is a governmental plan. We agree with the district court that
the Revenue Ruling 57-128 factors overall weigh in favor of Defendants. We
also agree with the district court that even accounting for the additional factor
under Revenue Ruling 89-49, which weighs in favor of the plaintiff, in light of
the remaining factors (and the heightened focus on the degree of control),
TMSEL is an agency or instrumentality of the RTA. 3



       2  See Christman v. Coresource, Inc., No. 2:14-CV-1913, 2015 WL 10791973, at *5 (S.D.
Ohio Aug. 26, 2015) (“The IRS test cited by both parties formerly had six factors, but the
factors have been updated since they were originally set forth in 1957. Essentially, there are
now five factors[.]” (internal citations omitted)); Milby v. Liberty Life Assurance Co. of Bos.,
102 F. Supp. 3d 922, 933 (W.D. Ky. 2015) (“The factors outlined in Revenue Ruling 57–128
and Revenue Ruling 89–49 are quite similar and compel the same result here. For the sake
of efficiency, the Court will focus its discussion on the factors more recently articulated by
the IRS in Revenue Ruling 89–49.”).
       3This determination is reinforced by a series of Private Letter Rulings addressing
mass transit systems in similar factual circumstances. See IRS Priv. Ltr. Rul. 9541040 (Oct.
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       Plaintiffs’ estoppel argument is unpersuasive. They argue that TMSEL
previously asserted that the plan was an ERISA plan. However, we have
previously noted that whether an entity intended ERISA to govern is not
relevant; rather “ERISA protection and coverage turns on whether the [plan]
satisfies the statutory definition.” Meredith v. Time Ins. Co., 980 F.2d 352, 354
(5th Cir. 1993) (citation omitted); see also MDPhysicians & Assocs., Inc. v. State
Bd. of Ins., 957 F.2d 178, 183 n.7 (5th Cir. 1992) (noting the statutory definition
controls, even though the plan at issue was “painstakingly drafted” to comply
with ERISA and the relevant “documents and agreements . . . all stated that
ERISA controlled the terms of the particular document”). 4
       For these reasons, we hold that the Plan was a governmental plan and
thus exempt from ERISA.              Accordingly, the district court did not err by
granting summary judgment in favor of Defendants on Plaintiffs’ ERISA
claims. This conclusion also disposes of the successor liability claim because
successor liability is predicated on the existence of underlying liability. See
Golden State Bottling Co., Inc. v. NLRB, 414 U.S. 168, 182 n.5 (1973) (“[T]he
general rule of corporate liability is that, when a corporation sells all of its
assets to another, the latter is not responsible for the seller’s debts or liabilities,
except [under certain enumerated circumstances.]” (emphasis added)).


13, 1995); IRS Priv. Ltr. Rul. 9710029 (Mar. 7, 1997); IRS Priv. Ltr. Rul. 9420039 (May 20,
1994). While IRS private letter rulings are not binding with respect to parties other than the
taxpayer to whom they were issued, “such rulings do reveal the interpretation put upon the
statute by the agency charged with the responsibility of administering the revenue laws.”
Hanover Bank v. C.I.R., 369 U.S. 672, 686 (1962).
       4 We need not decide whether the “governmental plan” exception must be negated as

part of Plaintiffs’ case or instead is an affirmative defense that must be proven by the
defendant because it makes no difference here. Where a party seeks summary judgment
pursuant to an affirmative defense, the movant must establish beyond peradventure the
elements of the defense. Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Once
the movant does so, the burden shifts to the nonmovant to establish an issue of fact that
warrants trial. Ferguson v. FDIC, 164 F.3d 894, 897 (5th Cir. 1999). Here, Defendants
entered evidence in support of their contention that the Plan was not covered by ERISA, and
Plaintiffs failed to present evidence to create a genuine dispute of material fact on this point.
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Accordingly, the district court did not err in granting summary judgment as to
the successor liability claims against the RTA. 5 We express no opinion as to
whether successor liability applies to ERISA violations by predecessor entities.
B. Section 1983
       Plaintiffs’ Section 1983 claims are barred by the statute of limitations.
The statute of limitations for Section 1983 claims is “the forum state’s
personal-injury limitations period,” which in Louisiana is one year. Jacobsen
v. Osborne, 133 F.3d 315, 319 (5th Cir. 1998). 6 “In applying the forum state’s
statute of limitations, the federal court should also give effect to any applicable
tolling provisions.” Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir. 1993).
However, federal law governs when a Section 1983 claim accrues. Jacobsen,
133 F.3d at 319. This court has stated that “[u]nder federal law, a cause of
action accrues when the plaintiff knows or has reason to know of the injury
which is the basis of the action.” Gartrell, 981 F.2d at 257. As a result, the
limitations period begins “when the plaintiff is in possession of the ‘critical



       5 Plaintiffs maintain that there is underlying liability for the breach of fiduciary duty
claim under ERISA because these claims arose before 2006, and the district court did not
address the governmental status of the plan prior to 2006. Not only did Plaintiffs apparently
agree to limit the scope of discovery to 2006, but also they do not explain what evidence would
change the governmental plan analysis during any pre-2006 period. In fact, much of the
evidence relied upon in the district court and here precedes 2006, and Defendants entered
evidence that the MSA reflected the relationship between the RTA and TMSEL since 1983.
Accordingly, we reject this argument.
       6    The “borrowed” state statute is applied where there is no federal statute of
limitations. Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994). The catchall four-year
federal statute of limitations applies “for actions arising under federal statutes enacted after
December 1, 1990.” Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 371 (2004). “[I]f the
plaintiff’s claim against the defendant was made possible by a post–1990 enactment,” the
four-year statute of limitations applies. Id. at 382. Here, Plaintiffs’ claims were not “made
possible” by a post-1990 federal statute. The only post-1990 amendment to Section 1983
merely limited claims against judicial officers. See Campbell v. Forest Pres. Dist. of Cook
Cty., Ill., 752 F.3d 665, 668 (7th Cir. 2014). As such, we have previously concluded that the
catchall statute of limitations does not apply to Section 1983. Garrett v. Thaler, 560 F. App’x
375, 383 (5th Cir. 2014) (citing Walker v. Epps, 550 F.3d 407, 411 (5th Cir. 2008)).
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facts that he has been hurt and who has inflicted the injury.’” Id. (quoting
Lavellee v. Listi, 611 F.2d 1129, 1130 (5th Cir. 1980)).
       The critical inquiry for accrual is when Plaintiffs knew or had reason to
know of the denial of their benefits. See id. Plaintiffs were informed of the
changes in the Plan and resulting denial of benefits in a letter from the RTA
and TMSEL in March 2006.                 This letter sufficiently provided Plaintiffs
knowledge of the injury upon which this action is based, as it stated that
“financial resources are not sufficient to . . . continue some benefits for
retirees.” Therefore, Plaintiffs’ Section 1983 cause of action accrued upon
receipt of the letter dated March 6, 2006.
       We agree with the district court that Plaintiffs’ arguments that the
claims are not time barred are unpersuasive. First, the changes in the Plan
constitute a single violation and the continuing violation theory does not apply.
See McGregor v. La. State Univ. Bd. of Supervisors, 3 F.3d 850, 867 (5th Cir.
1993) (“We must be careful not to confuse continuous violations with a single
violation followed by continuing consequences . . . .”). 7
       Second, the doctrine of contra non valentem does not apply. Under this
doctrine, “prescription does not run against a party who is unable to act.”
Corsey v. State, 375 So. 2d 1319, 1321 (La. 1979). Plaintiffs appear to rely on


       7 For the first time at oral argument, counsel for Plaintiffs argued that they have a
“new cause of action” under Section 1983 that accrued in January 2012—when rates were
again raised. We do not address what effect, if any, this rate hike has on the statute of
limitations, as Plaintiffs have waived this argument. Keelan v. Majesco Software, Inc., 407
F.3d 332, 339 (5th Cir. 2005) (“If a party fails to assert a legal reason why summary judgment
should not be granted, that ground is waived and cannot be considered or raised on appeal.”
(citation omitted)); Burell v. Prudential Ins. Co. of Am., 820 F.3d 132, 140 (5th Cir. 2016)
(determining that a “passing reference to [an] argument in the fact section of his summary
judgment response . . . was insufficient to give the district court an opportunity to rule on the
argument, and it [was] therefore waived”); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993)
(noting that arguments not made in the body of appellant’s brief are abandoned); Whitehead
v. Food Max of Miss., Inc., 163 F.3d 265, 270 (5th Cir. 1998) (“[W]e do not generally consider
points raised for the first time at oral argument.”).
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the third category under contra non valentem, which applies “where the
[defendant] himself has done some act effectually to prevent the [plaintiff] from
availing himself of his cause of action.” Marin v. Exxon Mobil Corp., 48 So. 3d
234, 245 (La. 2010). Plaintiffs state they were led to believe that the changes
to the Plan were only temporary due to the post-Katrina situation based on the
following language in the 2006 letter: “Please be assured that we are doing
everything in our power to acquire resources, to rebuild, to restore systems and
services and to reemploy as many people displaced by this disaster as possible.
We will not ease-up on this journey.” Even if Plaintiffs were led astray by this
statement (and it was reasonable to delay action for six years), Plaintiffs have
provided no evidence that Defendants included it deliberately to preclude them
from filing suit. 8
C. Discovery Dispute
       Plaintiffs contend that the district court improperly limited the scope of
discovery in its ruling on the Rule 56(d) motion to compel. Rule 56(d) allows
the district court to provide additional time for discovery before ruling on a
motion if the nonmovant shows an inability to support its opposition factually.
FED. R. CIV. P. 56(d). While “Rule 56(d) motions for additional discovery are
broadly favored and should be liberally granted,” Am. Family Life Assurance
Co. v. Biles, 714 F.3d 887, 894 (5th Cir. 2013) (citation omitted), the party filing
the motion must demonstrate “how additional discovery will create a genuine
issue of material fact.” Canady v. Bossier Par. Sch. Bd., 240 F.3d 437, 445 (5th


       8 To the extent Plaintiffs rely on the fourth category of contra non valentem, which
applies “where the cause of action is neither known nor reasonably knowable by the plaintiff
even though plaintiff’s ignorance is not induced by the defendant,” Marin, 48 So. 3d at 245,
the outcome is no different. The Louisiana Supreme Court has determined that the fourth
category does not apply where the only contention is that the Defendants failed to inform the
Plaintiffs that a condition was permanent. See Fontenot v. ABC Ins. Co., 674 So. 2d 960, 964
(La. 1996). Plaintiffs offer no other explanation as to why they did not know of their cause of
action.
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   Case: 15-31001     Document: 00513569264     Page: 15    Date Filed: 06/28/2016



                                 No. 15-31001
Cir. 2001) (citation omitted). More specifically, “the non-moving party must
‘set forth a plausible basis for believing that specified facts, susceptible of
collection within a reasonable time frame, probably exist and indicate how the
emergent facts, if adduced, will influence the outcome of the pending summary
judgment motion.’” Biles, 714 F.3d at 894 (quoting Raby v. Livingston, 600
F.3d 552, 561 (5th Cir. 2010)). “The nonmovant may not simply rely on vague
assertions that discovery will produce needed, but unspecified, facts.”
Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990).
      In evaluating district courts’ rulings on Rule 56(d) motions, we generally
assesses whether the evidence requested would affect the outcome of a
summary judgment motion. Biles, 714 F.3d at 895. This court has found an
abuse of discretion where it can identify a specific piece of evidence that would
likely create a material fact issue. E.g., Hinojosa v. Johnson, 277 F. App’x 370,
378 (5th Cir. 2008). In contrast, this court has found no abuse of discretion
where the party filing the Rule 56(d) motion has failed to identify sufficiently
specific or material evidence to affect a summary judgment ruling. Prospect
Capital Corp. v. Mut. of Omaha Bank, 819 F.3d 754, 757–58 (5th Cir. 2016).
The items Plaintiffs claim they were denied fall in the latter category.
Accordingly, the Plaintiffs have failed to demonstrate that the district court
abused its discretion in denying their Rule 56(d) motion.
      For these reasons, the judgment of the district court is AFFIRMED.




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