Dillard v. Albertsons Inc ( 2000 )


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  •                      UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 99-31201
    Summary Calendar
    AMY L. DILLARD,
    Plaintiff-Appellant,
    versus
    ALBERTSON’S, INC., ET AL.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Western District of Louisiana
    Lower Court Number 98-CV-1644
    July 7, 2000
    Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
    PER CURIAM:*
    Appellant, Amy Dillard, filed a complaint against her
    former employer, Albertson’s, Inc., and its insurer, alleging
    wrongful termination, intentional infliction of emotional distress,
    and defamation under Louisiana law.1            The case was removed to
    federal court.     After denying Dillard’s procedural attempts to add
    nondiverse defendants and to remand to state court, the district
    court granted summary judgment in favor of Albertson’s. Finding no
    error in the disposition of Dillard’s procedural motions, we
    affirm.
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this
    opinion should not be published and is not precedent except for the limited
    circumstances set forth in 5TH CIR. R. 47.5.4.
    1
    Dillard also asserted due process and equal protection claims, which
    she voluntarily dismissed.
    Dillard first asserts that the court erred in requiring
    her to seek leave to amend her complaint to add defendant Robert
    Pierce, when, pursuant to Rule 15(a), no leave is required if the
    amendment precedes the defendant’s answer on the merits.                          That
    argument would be persuasive except that 
    28 U.S.C. § 1447
    (e)
    specifically confers on the district court the responsibility to
    scrutinize     attempted    joinder      of     non-diverse      parties   in   cases
    previously     removed     to    federal       court.      The     magistrate   judge
    correctly required a motion, applied the correct legal standards
    and concluded that granting the motion would be improper on the
    facts before him.          The district court endorsed his reasoning.
    Appellant has shown no factual error or ground for abuse of
    discretion in the denial of her proffered amendment.
    Likewise, the trial courts’ refusal of Dillard’s second
    motion to amend and add Ms. Authur as a nondiverse defendant a year
    after the litigation commenced was, not an abuse of discretion.
    Finally, the district court did not abuse its discretion
    in   denying   Dillard’s        Motion   for    Extension     of    Time   to   Oppose
    Defendant’s Motion for Summary Judgment.                 Rule 56 does not require
    that discovery be closed before a motion for summary judgment can
    be heard.      See Fed. R. Civ. P. 56.                  Moreover, Dillard’s bare
    contention that she needed to take more depositions, without
    detailing how such deposition testimony would raise a genuine issue
    of material fact, was insufficient to satisfy Rule 56(f)’s standard
    for granting a continuance.              See Fed.R.Civ.P. 56(f); see also
    Washington v. Allstate Ins. Co., 
    901 F.2d 1281
    , 1285 (5th Cir.
    2
    1990)(finding that a party seeking additional time for discovery
    must specifically demonstrate how postponement of a ruling on the
    summary judgment motion would enable him to rebut the movant’s
    showing of an absence of material fact).
    Because   Dillard’s   procedural   motions   were   properly
    denied, the district court did not err in considering and granting
    summary judgment for Albertson’s.     Accordingly, the order granting
    summary judgment in favor of Albertson’s is AFFIRMED.
    3
    

Document Info

Docket Number: 99-31201

Filed Date: 7/7/2000

Precedential Status: Non-Precedential

Modified Date: 4/18/2021