     Case: 10-20222     Document: 00511246541          Page: 1    Date Filed: 09/28/2010




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

                                                                            FILED
                                                                        September 28, 2010
                                     No. 10-20222
                                                                           Lyle W. Cayce
                                   Summary Calendar
                                                                                Clerk


AMANDINE GARCIA, Individually and on the Estate of Jorge Vargas and as
Next Friend of MJV and MJV both minors,

                                                   Plaintiff-Appellant
v.

UNIT DRILLING COMPANY,

                                                   Defendant-Appellee




                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CV-01380


Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Plaintiff Amandine Garcia appeals the district court’s order (1) denying
her motion for leave to amend her complaint, and (2) granting defendant Unit
Drilling Company’s (“UDC’s”) motion for judgment on the pleadings.                             We
conclude that the district court properly granted UDC judgment on the



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                     No. 10-20222

pleadings, and that the district court did not abuse its discretion in denying
Garcia’s motion for leave to amend.
                                 I. BACKGROUND
      Garcia’s common-law husband, Jorge Vargas, was killed in a single-car
crash on July 15, 2008. Garcia’s sparse complaint – just eight sentences of
factual allegations – indicates that UDC employed Vargas and “sent him to
various job sites in different states.” A medical examiner determined that his
blood-alcohol content at the time of death was 0.12%, well above the legal limit.
Garcia’s complaint states:
      [Vargas] should not have been driving. Worse, it is apparent from
      the early time of the accident as well as its temporal proximity to
      his leaving the drilling site, that Jorge Vargas has been given
      alcohol to drink while working, yet sent to drive home alone despite
      his severe intoxication.
The complaint makes no further factual allegations.
      Garcia filed her complaint in state court on March 16, 2009. Several
weeks later, UDC filed an answer and removed the case to federal court.1 The
district court issued a pretrial order on August 26, 2009, mandating that all
amendments to pleadings be filed no later than December 1, 2009. The pretrial
order also called for discovery to be completed no later than April 30, 2010.
      On February 12, 2010, UDC filed its motion to dismiss and motion for
judgment on the pleadings. On March 5, 2010, Garcia filed her opposition
memorandum. She also filed a motion for leave to amend her complaint, three
months after the deadline to amend pleadings. Garcia sought to amend to:

      (1) correct the names of the parties to this lawsuit; (2) set forth [her]
      allegations under the Federal Rules of Civil Procedure; (3) add
      allegations concerning Oklahoma law; (4) add allegations concerning


      1
        The original complaint listed two additional defendants that were later terminated
from the lawsuit pursuant to a joint stipulation.

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      defendant’s knowledge of decedent’s intoxication; and (5) add
      allegations concerning the degree of control exercised by defendant
      over decedent.
The district court denied Garcia’s motion for leave to amend and granted UDC’s
motion for judgment on the pleadings.
                               II. DISCUSSION
      “We review de novo motions to dismiss and motions for judgment on the
pleadings. The standard is the same for both. Viewing the facts as pled in the
light most favorable to the nonmovant, a motion to dismiss or for a judgment on
the pleadings should not be granted if a complaint provides enough facts to state
a claim to relief that is plausible on its face. Moreover, the complaint must
allege more than labels and conclusions, a formulaic recitation of the elements
of a cause of action will not do, and factual allegations must be enough to raise
a right to relief about the speculative level.” Jebaco, Inc. v. Harrah’s Operating
Co., Inc., 587 F.3d 314, 318 (5th Cir. 2009) (internal citations and quotations
omitted).
      “We review for abuse of discretion the district court’s denial of leave to
amend.” S&W Enters. v. Southtrust Bank of Ala., 315 F. 3d 533, 535 (5th Cir.
2003).
      A.    Motion for Judgment on the Pleadings
      We review first the district court’s order granting UDC judgment on the
pleadings. The district court concluded that Garcia’s sparse complaint failed to
lay out the elements of her claims, much less facts that would make her claims
plausible. We agree.
      Under Texas law, Garcia’s claims of negligence and gross negligence
require proof that Vargas’s employer exercised control over Vargas and that the
employer failed to act in a reasonably prudent manner “to prevent the employee
from causing an unreasonable risk of harm to others.” Otis Eng’g Corp. v. Clark,



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668 S.W.2d 307, 310 (Tex. 1983). Garcia’s complaint plainly fails to allege that
Vargas’s employer exercised control over Vargas while Vargas was drinking.
Moreover, if Vargas’s employer carried any duty, it would be to prevent Vargas
from causing an unreasonable risk of harm to others. See id. As the district
court noted, Texas courts have refused to extend the Otis duty to preventing
incapacitated persons from harming themselves.             See Verdeur v. King
Hospitality Corp., 872 S.W.2d 300, 302 (Tex. Ct. App. 1994) (“[Otis] does not
create a duty which requires an employer to protect an intoxicated employee
from injuring herself.”).
      Likewise, Garcia’s claims under the Texas Dram Shop Act, T EX . A LCO.
B EV. C ODE A NN. § 2.02 (West 2007), similarly fail to allege that Vargas’s
employer was a provider of alcoholic beverages within the meaning of § 2.02.
      B.    Motion for Leave to Amend
      We next review the district court’s denial of Garcia’s motion for leave to
amend. As a general matter, courts should grant leave to amend pleadings
“freely . . . when justice so requires.” F ED. R. C IV. P. 15(a). Normally,“leave to
amend is to be granted liberally unless the movant has acted in bad faith or with
a dilatory motive, granting the motion would cause prejudice, or amendment
would be futile.” Jebaco Inc. v. Harrah's Operating Co. Inc., 587 F.3d 314, 322
(5th Cir. 2009).
      However, when a pretrial scheduling order’s deadline to amend has
expired, as was the case here, amendments are governed by the more strict Rule
16 standard rather than the liberal Rule 15 standard.             S&W Enters. v.
Southtrust Bank of Ala., 315 F. 3d 533, 536 (5th Cir. 2003). Under Rule 16, late
amendments may be accepted “only for good cause and with the judge’s consent.”
F ED. R. C IV. P. 16(b). In the Fifth Circuit, “the good cause standard requires the
party seeking relief to show that the deadlines cannot reasonably be met despite



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the diligence of the party needing the extension.”        Id. at 535 (citation and
quotation marks omitted).
      We have articulated four factors relevant to determining good cause:
      (1) the explanation for the failure to timely move for leave to amend;
      (2) the importance of the amendment; (3) potential prejudice in
      allowing the amendment; and (4) the availability of a continuance
      to cure such prejudice.
Sw. Bell Tel. Co. v. City of El Paso, 346 F. 3d 541, 546-47 (5th Cir. 2003).
      At no time has Garcia offered an explanation for her nearly year-long
delay in amending her pleadings, nor has she proffered an excuse for missing the
December 1, 2009 amendment deadline. Further, the district court found that
even if Garcia were allowed to amend her complaint in the five ways she
described, the outcome would be no different:         “None of these proposed
amendments change the Court’s determination that Garcia’s claims against Unit
Drilling fail as a matter of law.”
      Allowing Garcia to add Oklahoma law claims would require UDC to
respond to additional discovery. As the district court noted, “[i]n the face of an
impending discovery-close date and dispositive-motion cut-off date, requiring
Unit Drilling to defend against new factual allegations would be unfair and
prejudicial.”
      Finally, UDC’s motion for judgment on the pleadings hardly came as a
surprise to Garcia. UDC raised these deficiencies as an affirmative defense on
May 6, 2009: “Plaintiffs’ Original Petition fails to state a cause of action upon
which relief may be granted for negligence and gross negligence against
Defendants for violation of the Texas Dram Shop Act.” Thus, Garcia was on
notice seven months before the amendment deadline that UDC believed her
complaint to be deficient.      Garcia had ample time to amend, and such
amendments would have been allowed almost as a matter of course if done
before December 1, 2009.

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      While some district courts might have reached a different conclusion on
the belated motion for leave to amend, we review only for abuse of discretion,
and we find none. Garcia has failed to show that she could not meet the court’s
deadline “despite [her] diligence,” S&W Enters., 315 F. 3d at 535. We see no
compelling reason to overturn the “sound discretion of the district court” in this
instance.   Nance, 817 F.2d at 1180.     The judgment of the district court is
AFFIRMED.




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