Kinder Morgan, Incorporated v. Joanne Crout

Case: 19-20037 Document: 00515419101 Page: 1 Date Filed: 05/18/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 19-20037
Fifth Circuit
FILED
May 18, 2020
KINDER MORGAN, INCORPORATED, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
JOANNE CROUT,
Defendant - Appellee
v.
JANILLE ALYSE CROUT; JAY ALLEN CROUT; DANNY LEE CROUT, JR.;
THE ESTATE OF DANNY LEE CROUT,
Defendants - Appellants
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-cv-509
Before SMITH, GRAVES, and HO, Circuit Judges.
PER CURIAM:*
Appellants Janille Alyse Crout, Jay Allen Crout, Danny Lee Crout, Jr.,
(collectively, “the Crout children”) and the Estate of Danny Lee Crout (“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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-20037
Estate”) appeal from the district court’s final judgment. Appellants essentially
argue that the probate exception to federal jurisdiction and the Burford
abstention doctrine divested the district court of jurisdiction over this action,
and that the district court erred in granting Appellee Joanne Crout (“Mrs.
Crout”) summary judgment and abused its discretion in denying Appellants
post-judgment leave to amend their counterclaim. We AFFIRM.
BACKGROUND
Danny Lee Crout (“Mr. Crout”) was an employee of Kinder Morgan, Inc.
He participated in Appellee Kinder Morgan, Inc. Saving Plan’s 1 (“Kinder
Morgan”) employee savings plan (“the plan”) 2 until his death in 2016.
Primarily at issue is whether the Crout children or Mrs. Crout is the
appropriate beneficiary of the benefits accrued under the plan. The plan
provided two alternate schemes by which accrued benefits would be disbursed
upon the death of a plan participant. Simply put, the first scheme applied to
plan participants who designated a beneficiary, whereas the second scheme
applied to plan participants who did not designate a beneficiary.
Under the first scheme, in relevant part:
Any Participant may from time to time designate, in writing, any
person or persons, contingent or successively, to whom the Trustee
shall pay his or her Accrued Benefit on event of death. A married
Participant’s Beneficiary designation of any person other than his
or her Spouse is not valid unless the Participant’s Spouse consents
to the Beneficiary designation or unless the Participant and his or
her Spouse are not married throughout the one (1) year period
ending on the date of the Participant’s death. The Spouse’s
1 While the Kinder Morgan, Inc. Savings Plan provides benefits to Kinder Morgan,
Inc. employees, it is a separate entity from Kinder Morgan, Inc. and is the party that brought
this action. See 29 U.S.C. § 1132(d)(1) (“An employee benefit plan may sue or be sued under
this subchapter as an entity.”).
2 It is undisputed that the plan is an Employee Retirement Income Security Act of
1974 (“ERISA”), 29 U.S.C. § 1001, et seq., plan.
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consent must be in writing and a notary public or the Plan
Supervisor (or his/her representative) must witness the consent.
Under the second scheme, if a plan participant did not designate a
beneficiary, then the accrued benefits would be disbursed, in the following
order of priority, to:
(a) The Participant’s surviving Spouse;
(b) The Participant’s surviving children, including adopted
children, in equal shares;
(c) The Participant’s surviving parents, in equal shares; or
(d) The legal representative of the estate of the last to die of the
Participant and his Beneficiary.
Mrs. Crout, Kinder Morgan, and Appellants dispute whether Mr. Crout
designated a beneficiary under the plan. 3 After Mr. Crout’s death, Mrs. Crout
and the Crout children filed separate claims with Kinder Morgan, seeking
disbursement of the accrued benefits. 4 Kinder Morgan informed Mrs. Crout
that, as Mr. Crout’s “surviving spouse,” she is the “default primary beneficiary”
and “eligible to receive 100% of the total amount” of the accrued benefits.
Accordingly, Kinder Morgan denied the Crout children’s claim because Kinder
Morgan did “not have a valid beneficiary designation on file in favor of the
claimant[s].” The Crout children appealed this determination through Kinder
Morgan’s internal appeals process, and the denial was affirmed.
Kinder Morgan then filed an interpleader action against Appellants and
Mrs. Crout in the district court pursuant to ERISA and Federal Rule of Civil
3 Appellants argue that Mr. Crout designated the Crout children as beneficiaries
under the plan whereas Mrs. Crout and Kinder Morgan argue that no beneficiary was
designated under the plan and, thus, Mrs. Crout—as Mr. Crout’s surviving spouse—is
entitled to receive the accrued benefits.
4 Additionally, in state probate court, Janille Crout applied for the independent
administration of Mr. Crout’s estate, to determine the identities of Mr. Crout’s heirs, and to
probate Mr. Crout’s will pursuant to Texas law. See In the Estate of Crout, No. 16-CPR-
029032 (Fort Bend Cty., Tex., Cty. Court at Law No. 5); In the Estate of Crout, No. 16-CPR-
029160 (Fort Bend Cty., Tex., Cty. Court at Law No. 5).
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Procedure 22, seeking a judgment that would declare the lawful beneficiary or
beneficiaries of the accrued benefits. The Crout children and Mrs. Crout filed
separate counterclaims under ERISA, each seeking a judgment awarding them
the accrued benefits and a declaration that they are the only proper beneficiary
or beneficiaries.
Kinder Morgan moved to deposit the accrued benefits in the district
court’s registry and for the district court to dismiss it from the action. Although
Appellants initially opposed the motion, they later withdrew their opposition,
and the district court granted the motion.
Mrs. Crout moved for summary judgment on her counterclaim, which
Appellants opposed, arguing that Mrs. Crout’s marriage to Mr. Crout was
invalid. Appellants further argued that Mr. Crout had designated the Crout
children as his beneficiaries in a prior savings plan and that plan and its
attendant terms and participant beneficiary designations had merged into the
Kinder Morgan plan.
Appellants, for their part, moved to dismiss Mrs. Crout’s counterclaim
and the underlying interpleader action, primarily arguing that the district
court lacked jurisdiction over the action because the accrued benefits are an
asset of the Estate over which a state probate court—the Fort Bend County,
Texas, County Court at Law No. 5—had already asserted jurisdiction. The
district court denied Appellants’ motion, granted Mrs. Crout summary
judgment, declared Mrs. Crout the only lawful beneficiary of the accrued
benefits, disbursed the accrued benefits to Mrs. Crout, and entered final
judgment.
Post-judgment, Appellants moved for a temporary restraining order,
leave to file an amended counterclaim and a third-party complaint, and to
amend the final judgment. The district court denied each of these motions.
Appellants timely appealed.
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STANDARDS OF REVIEW
This appeal implicates several standards of review. First, “[t]his court
conducts a de novo review to determine whether a lower court had subject
matter jurisdiction to entertain a case.” In re U.S. Abatement Corp., 39 F.3d
563, 566 (5th Cir. 1994). And “we review de novo whether the requirements of
a particular abstention doctrine are satisfied.” Aransas Project v. Shaw, 775
F.3d 641, 648 (5th Cir. 2014) (internal quotation marks and citation omitted).
Second, “[w]e review a grant of summary judgment de novo, applying the
same standard as the district court.” Haverda v. Hays County, 723 F.3d 586,
591 (5th Cir. 2013) (italics added). Summary judgment is appropriate only “if
the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Id. (quoting FED. R.
CIV. P. 56(a)).
Third, generally, a “motion for leave to amend falls under Federal Rule
of Civil Procedure 15(a),” because the Rule “govern[s] the amendment of
pleadings[.]” See Rosenzweig v. Azurix Corp., 332 F.3d 854, 863–64 (5th Cir.
2003) (emphasis omitted); FED. R. CIV. P. 15(a)(2) (stating that “a party may
amend its pleading only with the opposing party’s written consent or the
court’s leave” when amendment is unavailable under Rule 15(a)(1), as here).
However, a post-judgment motion for leave to amend “must be treated as a
motion under Rule 59(e), not Rule 15(a),” Rosenzweig, 332 F.3d at 864, as Rule
59(e) “govern[s] the amendment of judgments[.]” Id. at 863 (emphasis
omitted). Still, “under these circumstances, the considerations for a Rule 59(e)
motion are governed by Rule 15(a)[.]” Id. at 864. “[W]e review the district
court’s denial of [a Rule] 59(e) motion for abuse of discretion, in light of the
limited discretion of Rule 15(a).” Id. This discretion is limited because Rule
15(a) “evinces a bias in favor of granting leave to amend.” Id. at 863 (internal
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quotation marks and citation omitted); see FED. R. CIV. P. 15(a)(2) (“The court
should freely give leave when justice so requires.”).
In determining whether to grant or deny leave to amend, a court may
consider, among other things, “undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, [and] futility of the amendment[.]” Foman v.
Davis, 371 U.S. 178, 182 (1962). “Absent such factors, the leave sought should,
as the rules require, be freely given.” Rosenzweig, 332 F.3d at 864 (internal
quotation marks and citation omitted).
DISCUSSION
First, the probate exception to federal jurisdiction does not apply here.
A federal court “has no jurisdiction to probate a will or administer an estate[.]”
Curtis v. Brunsting, 704 F.3d 406, 408 (5th Cir. 2013) (quoting Markham v.
Allen, 326 U.S. 490, 494 (1946)). In other words, the probate exception has “a
distinctly limited scope” and:
reserves to state probate courts the probate or annulment of a will
and the administration of a decedent’s estate; it also precludes
federal courts from endeavoring to dispose of property that is in
the custody of a state probate court. But it does not bar federal
courts from adjudicating matters outside those confines and
otherwise within federal jurisdiction.
Id. at 409 (quoting Marshall v. Marshall, 547 U.S. 293, 310–12 (2006)). To
determine whether the probate exception deprives a federal court of
jurisdiction, we require “a two-step inquiry into (1) whether the property in
dispute is estate property within the custody of the probate court and (2)
whether the plaintiff’s claims would require the federal court to assume in rem
jurisdiction over that property.” Id.
Notably, however, this court has described the probate exception as one
that applies to “diversity jurisdiction.” Id. at 408–09. The parties do not cite
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a decision by this court—and we are unaware of one—in which we determined
that the probate exception applies to federal-question jurisdiction, the type of
jurisdiction relevant here. Cf. United States v. Bailey, 115 F.3d 1222, 1231 (5th
Cir. 1997) (“The domestic relations exception [to federal jurisdiction] obtains
from the diversity jurisdiction statute and therefore it has no application
where, as here, there exists an independent basis for federal jurisdiction. . . .
The [Child Support Recovery Act] in no way endeavors to regulate [domestic
relations matters that are in the unique province of state courts to decide]; it
seeks merely to enforce a child support order already promulgated by a state
court.”) (citations and footnote omitted) (emphasis in original); Jones v.
Brennan, 465 F.3d 304, 306 (7th Cir. 2006) (“The probate exception is usually
invoked in diversity cases, and the courts are divided over its applicability to
federal-question cases, such as this case.”) (collecting cases). We need not
resolve this question because Appellants would fail to satisfy the first step of
the probate exception inquiry outlined above anyway. Curtis, 704 F.3d at 409
(“As a threshold matter, the probate exception only applies if the dispute
concerns property within the custody of a state court.”).
In Texas, “there are at least four categories of assets known as non-
probate assets, not subject to disposition by will and not subject to the rules of
intestate distribution.” Valdez v. Ramirez, 574 S.W.2d 748, 750 (Tex. 1978).
One such category—relevant here—is “property passing at death pursuant to
terms of a contract, such as provided in life insurance policies, and under
contributory retirement plans[.]” Id. The plan falls into this category: the plan
makes clear that a plan participant’s accrued benefits will pass at death
pursuant to the terms of the plan, as outlined above. As such, the accrued
benefits are not estate property. See Tarrant v. Halliburton Energy, 71 F.3d
7
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878, 1995 WL 726689, at *2 (5th Cir. 1995) (unpublished) 5 (“The execution of
[an ERISA-employee savings plan participant’s] new will did not alter his
beneficiaries [under the plan], because an employee pension plan is not part of
the estate that passes by will under Texas law.”) (citing Valdez, 574 S.W.2d at
750); see also Curtis, 704 F.3d at 409–10 (“Assets placed in an inter vivos trust
generally avoid probate, since such assets are owned by the trust, not the
decedent, and therefore are not part of the decedent’s estate.”). Neither are
the accrued benefits in a state probate court’s custody nor were they ever in a
state probate court’s custody. Cf. Curtis, 704 F.3d at 409 (“The federal court
cannot exercise in rem jurisdiction over a res in the custody of another court.”).
The accrued benefits were in Kinder Morgan’s custody until such time that
they were deposited into the district court’s registry and then disbursed to Mrs.
Crout. Accordingly, this action would not be subject to the probate exception
even if the exception were to apply to federal-question jurisdiction.
Second, neither does the Burford abstention doctrine apply here. While
“federal courts have a virtually unflagging obligation to exercise the
jurisdiction given them,” Aransas Project, 775 F.3d at 649 (internal quotation
marks, ellipsis, and citation omitted), “the court[s] ha[ve] the power and[,] in
an appropriate case[,] the duty to order abstention, if necessary for the first
time at the appellate level[.]” Waldron v. McAtee, 723 F.2d 1348, 1351 (7th
Cir. 1983). The Supreme Court has extended the applicability of abstention
doctrines to “all cases in which a federal court is asked to provide some form of
discretionary relief.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 730
(1996); see also id. at 718 (“We have not limited the application of the
abstention doctrines to suits for injunctive relief, but have also required federal
5 In this court, unpublished opinions issued before January 1, 1996, are precedent.
5TH CIR. R. 47.5.3.
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courts to decline to exercise jurisdiction over certain classes of declaratory
judgments, the granting of which is generally committed to the courts’
discretion[.]”) (citations omitted).
In Burford v. Sun Oil Company, 319 U.S. 315 (1943), specifically, the
Supreme Court described a “‘federal-state conflict’ [] requir[ing] a federal court
to yield jurisdiction in favor of a state forum.” Quackenbush, 517 U.S. at 723
(quoting Burford, 319 U.S. at 332–333); see also Aransas Project, 775 F.3d at
649 (“The Court in Burford delineated an area of abstention where the issues
so clearly involve basic problems of State policy that the federal courts should
avoid entanglement.”) (internal quotation marks, brackets, and citation
omitted). In this court, we have consistently applied five factors in deciding
whether to abstain under Burford:
(1) whether the cause of action arises under federal or state law;
(2) whether the case requires inquiry into unsettled issues of state
law or into local facts; (3) the importance of the state interest
involved; (4) the state’s need for a coherent policy in that area; and
(5) the presence of a special state forum for judicial review.
Aransas Project, 775 F.3d at 649 (quoting Wilson v. Valley Elec. Membership
Corp., 8 F.3d 311, 314 (5th Cir. 1993)).
None of these factors supports abstention here. This action and each
counterclaim arise under federal law, specifically, ERISA. The action and
counterclaims are not “in any way entangled in a skein of state-law that must
be untangled before the federal case can proceed[.]” New Orleans Public Serv.,
Inc. v. Council of City of New Orleans, 491 U.S. 350, 361 (1989) (internal
quotation marks and citation omitted). As discussed, the accrued benefits are
not estate property or otherwise in the probate court’s custody. The resolution
of this case does not require inquiry into issues of state law—let alone
unsettled issues of state law—or into local facts, and no state interest is clearly
involved. Cf. Duggins v. Fluor Daniel, Inc., 217 F.3d 317, 319 (5th Cir. 2000)
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(“ERISA preempts ‘any and all State laws insofar as they may now or hereafter
relate to any employee benefit plan.’”) (quoting 29 U.S.C. § 1144(a)); see also
id. (“[A] court need not even reach the issue of preemption where it can resolve
the validity of the designation without going beyond the terms of the plan
itself.”) (quotation marks, citation, and brackets omitted); Nickel v. Estate of
Estes, 122 F.3d 294, 298 (5th Cir. 1997) (“ERISA plans are to be administered
according to their controlling documents. . . . [I]f the designation on file
controls, administrators and courts need look no further than the plan
documents to determine the beneficiary[.]”) (quoting McMillan v. Parrott, 913
F.2d 310, 312 (6th Cir. 1990)).
Further, the state does not have a need for a coherent policy in a subject
area which does not involve state law and in which the state has no clear
interest. Nor is there a special state forum for judicial review of this action’s
subject; instead, ERISA states that federal courts should resolve most types of
actions that may be brought pursuant to ERISA, including the type of action
at issue here. See 29 U.S.C. § 1132(a)(3)(B) (empowering a plan fiduciary to
bring an action such as the one here); id. at § 1132(e)(1) (stating that “the
district courts of the United States shall have exclusive jurisdiction of civil
actions [brought] under [§ 1132(a)(3)(B).]”); see also Iron Workers Local No. 272
v. Bowen, 624 F.2d 1255, 1259 (5th Cir. 1980) (stating that a fiduciary may
bring civil actions under § 1132(a) and that “federal district courts shall have
exclusive jurisdiction of such actions” pursuant to § 1132(e)); accord
Metropolitan Life Ins. Co. v. Bigelow, 283 F.3d 436, 439–40 (2d Cir. 2002);
Central States, Se. & Sw. Areas Pension Fund v. Howell, 227 F.3d 672, 674 n.2
(6th Cir. 2000); Aetna Life Ins. Co. v. Bayona, 223 F.3d 1030, 1033–34 (9th Cir.
10
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2000). Accordingly, Burford abstention would be inappropriate here as no
factor supports it. 6
Third, the district court properly granted Mrs. Crout summary
judgment. “At the outset, we note that a written ERISA plan generally controls
the distribution of plan benefits.” Tarrant, 1995 WL 726689, at *1 (citing
Rodrigue v. Western & Southern Life Ins. Co., 948 F.2d 969 (5th Cir. 1991); In
re HECI Exploration Co., 862 F.2d 513, 524 (5th Cir. 1988)). Under the plan
here, a plan participant’s surviving spouse is the beneficiary of any accrued
benefit when the plan participant has not designated a beneficiary. Mrs. Crout
showed that she is Mr. Crout’s surviving spouse and that Mr. Crout had not
designated a beneficiary by the time of his death. See 29 U.S.C. § 1055(c)(2)
(requiring, in general, an ERISA plan to pay benefits to the plan participant’s
surviving spouse unless that spouse has consented to the plan participant’s
designation of a non-spouse beneficiary).
Appellants’ attempts to show a genuine issue of material fact about
whether Mrs. Crout is the appropriate beneficiary fail. At the district court,
Appellants argued that summary judgment would be improper because (1) Mr.
Crout had designated the Crout children as his beneficiaries under the
Occidental Petroleum Savings Plan (“Oxy plan”), in which Mr. Crout
participated before joining the Kinder Morgan plan, and that the Oxy plan’s
terms and participant beneficiary designations had “moved over” into the
Kinder Morgan plan when Kinder Morgan acquired the Oxy plan; and (2) Mrs.
Crout’s marriage to Mr. Crout was invalid. On appeal, however, Appellants
6 Appellants’ argument that the district court erred by distributing the accrued
benefits to Mrs. Crout instead of to the state probate court fails for the same reasons
discussed above regarding the probate exception and Burford abstention doctrine. See
Rhoades v. Casey, 196 F.3d 592, 600 (5th Cir. 1999) (“After entering a judgment in [an]
interpleader action[,] the district court also has the power to make all appropriate orders to
enforce its judgment.”) (citing 28 U.S.C. § 2361).
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essentially argue that (1) Mr. Crout designated his children as his beneficiaries
under several savings plans preceding the Kinder Morgan plan, evidencing Mr.
Crout’s habit of designating his children as his beneficiaries; (2) the Oxy plan
and its attendant terms and beneficiary designations merged into the Kinder
Morgan plan; (3) Mr. Crout’s will evidences his intent to “exclude” Mrs. Crout
from receiving the accrued benefits under the plan; and (4) the accrued benefits
at the time of Mr. Crout’s death were similar to the projected accrued benefits
under a previous plan in which Mr. Crout participated, evidencing a merger. 7
We consider only Appellants’ argument that the Oxy plan’s terms and
participant beneficiary designations “moved over” into the Kinder Morgan plan
when Kinder Morgan acquired the Oxy plan. Appellants forfeited their other
arguments. See In re Novack, 639 F.2d 1274, 1276–77 (5th Cir. Unit B Mar.
1981) (“As a general rule, appellate courts refuse to consider an issue raised
for the first time on appeal.”); FED. R. CIV. P. 56(c)(3) (“The court need consider
only the cited materials[.]”).
Appellants’ argument regarding the Oxy plan is unavailing. Mrs.
Crout’s evidence—when read in light of the terms of the Kinder Morgan plan—
shows that she is the appropriate beneficiary under the plan. See supra. We
cannot ask Mrs. Crout to prove a negative and show that a merger did not occur
7 Appellants also represent:
[T]he Court was wrong when he stated that (1) [sic] only evidence before
this court is that Mr. Crout’s marriage to [Mrs. Crout] was valid and
she is Mr. Crout’s surviving spouse. That is [sic] only outrageous and
false but a disregard to [sic] this Court [sic] overwhelming precedents
and Federal Rule of Evidence section 406[, regarding habit evidence].
Appellants do not otherwise develop, on appeal, their argument regarding the validity
of Mrs. Crout’s marriage to Mr. Crout. Because the argument is not adequately
briefed, we decline to address it. See In re HECI Exploration Co., Inc., 862 F.2d at 525
(declining to address an issue that was listed in a brief but not otherwise argued).
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in the first instance. 8 Appellants had to provide evidence that the Oxy plan
and its attendant terms and participant beneficiary designations merged into
the Kinder Morgan plan to create a genuine issue of material fact about Mrs.
Crout’s beneficiary status. See Int’l Ass’n of Machinists & Aerospace Workers,
AFL-CIO v. Compania Mexicana de Aviacion, S.A. de C.V., 199 F.3d 796, 798
(5th Cir. 2000) (“Courts consider the evidence in the light most favorable to the
nonmovant, yet the nonmovant may not rely on mere allegations in the
pleading; rather, the nonmovant must respond to the motion for summary
judgment by setting forth particular facts indicating that there is a genuine
issue for trial.”). Instead, Appellants proffered evidence of Mr. Crout’s
beneficiary designations under the Oxy plan. This is not proof of a merger.
Accordingly, the district court properly granted Mrs. Crout summary
judgment.
Fourth, the district court did not abuse its discretion in denying
Appellants’ post-judgment motion for leave to file an amended counterclaim,
which would have—among other things—re-added Kinder Morgan as a party
and alleged that Kinder Morgan breached its fiduciary duty under ERISA. The
district court reasoned that it dismissed Kinder Morgan from the action on
February 9, 2018, which was approximately nine months before Appellants
moved for leave to amend; re-adding Kinder Morgan as a party after final
judgment would not “promote justice”; and Appellants pointed to evidence that
was already before—and considered by—the district court, relitigated earlier-
made arguments, and raised arguments that could have been made before final
8In any case, in its decision denying the Crout children’s claim to the accrued benefits,
Kinder Morgan stated that the Oxy plan was “not merged into [and does not] have any other
connection with the [Kinder Morgan] plan.” Kinder Morgan provided the same explanation
when it affirmed the denial.
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judgment. These reasons are sufficient to support the district court’s denial. 9
See Rosenzweig, 332 F.3d at 865 (“We conclude the district court’s stated
reasons for denying plaintiffs’ motion[—plaintiffs’ lack of diligence and the
futility of amending the complaint—]are sound and that the court did not
abuse its discretion.”); see also id. (“[A] busy district court need not allow itself
to be imposed upon by the presentation of theories seriatim.”) (internal
quotation marks and citation omitted); United States ex rel. Hebert v. Dizney,
295 F. App’x 717, 725 (5th Cir. 2008) (unpublished) 10 (affirming denial of post-
judgment motion for leave to amend because proposed amendment did not
“raise[] any facts which were not available previous to the district court’s
opinion”) (quoting Rosenzweig, 332 F.3d at 865). Accordingly, we conclude that
the district court did not abuse its discretion.
CONCLUSION
Because Appellants’ arguments fail, we AFFIRM.
9 We need not address Kinder Morgan’s additional argument that Appellants were
judicially estopped from asserting new claims against Kinder Morgan to determine that the
district court did not abuse its discretion.
10 “Unpublished opinions issued on or after January 1, 1996, are not precedent, except
[in limited circumstances such as] under the doctrine of res judicata[.]” 5TH CIR. R. 47.5.4
(asterisk omitted); see also Light-Age, Inc. v. Ashcroft-Smith, 922 F.3d 320, 322 n.1 (5th Cir.
2019) (concluding that, while an unpublished opinion issued after January 1, 1996, is not
precedent, “we may consider [such an] opinion as persuasive authority”).
14