                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS           July 28, 2003

                        FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                  Clerk


                             No. 02-51216
                           Summary Calendar



                         JERRY D. HARTHCOCK,

                                                Plaintiff-Appellant,

                                versus

               ROYSTON, RAYZOR, VICKERY & WILLIAMS LLP;
                       KILPATRICK STOCKTON LLP,


                                                Defendants-Appellees,

                                 and

           COMMISSIONER OF PATENTS AND TRADEMARKS, ETC.,

                                                          Respondent.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                      USDC No. SA-01-CV-995-FB
                        --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Jerry D. Harthcock, proceeding pro se, appeals the dismissal

for failure to state a claim of his trade-secret misappropriation

action.   In his complaint and amended complaint, Harthcock alleged


     *
        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this opinion should not be published and is not precedent except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.
that   the    law   firms   of    Royston,      Rayzor,   Vickery,    &   Williams

(Royston) and Kilpatrick Stockton (Kilpatrick), in prosecuting a

patent, committed “felony” theft of a trade secret.

       As an initial matter, Harthcock’s unopposed motion to submit

the case on the briefs is GRANTED.                  Also, Harthcock does not

address the district court’s denial of injunctive and declaratory

relief   or   the   dismissal      of    the    Commissioner   of    Patents   and

Trademarks as respondent.               Thus, Harthcock is deemed to have

abandoned these issues on appeal.              Yohey v. Collins, 985 F.2d 222,

224-25 (5th Cir. 1993).           Harthcock’s argument that the district

court erred in characterizing his theft-of-trade-secrets claim as

civil in nature is raised for the first time in his reply brief and

will not be considered.          See Price v. Roark, 256 F.3d 364, 368 n.2

(5th Cir. 2001).

       The district court did not err in dismissing Harthcock’s

complaint for failure to state a claim.                Barrientos v. Reliance

Standard Life Ins. Co., 911 F.2d 1115, 1116 (5th Cir. 1990); FED.

R. CIV. P. 12(b)(6).    A review of Harthcock’s pleading shows that he

failed to establish that the trade secret was acquired through the

breach of a confidential relationship or was discovered by improper

means or that there was a “use” of the trade secret so as to state

a claim for theft of trade secrets.             Phillips v. Frey, 20 F.3d 623,

617 (5th Cir. 1994).

       Harthcock argues that the district court erred in denying his

motion for leave to file a second amended complaint.                  The claims

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that Harthcock sought to raise in the second amended complaint did

not cure the deficiencies in Harthcock’s first amended complaint,

namely, that he failed to adequately plead a cause of action for

theft of trade secrets.    Accordingly, Harthcock’s first amended

complaint pleaded his “best case,” and the district court did not

abuse its discretion in denying Harthcock’s motion for leave to

file a second amended complaint.       Ashe v. Corley, 992 F.2d 540, 542

(5th Cir. 1993); Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir.

1986).

     The district court also did not err in granting the appellees’

motions to dismiss prior to the scheduling-order deadline for

filing dispositive motions.   See Union City Barge Line, Inc. v.

Union Carbide Corp., 823 F.2d 129, 135 (5th Cir. 1987)(district

court has broad discretion to control its own docket).

     Nor did the district court abuse its discretion in denying

Harthcock’s motion to disqualify Royston’s counsel.        FDIC v. U.S.

Fire Insurance Co., 50 F.3d 1304, 1311 (5th Cir. 1995).       Harthcock

failed to show that Thomas L. Crisman’s prior representation of him

was substantially related to the current litigation so as to

warrant the disqualification of counsel.       In re American Airlines,

Inc., 972 F.2d 605, 614 (5th Cir. 1992).        The fact that Harthcock

intended to call Crisman as a witness in the instant litigation

also did not warrant the disqualification of counsel.         Given the

foregoing, the judgment of the district court is AFFIRMED.

     MOTION GRANTED; AFFIRMED.

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