Plaintiff-Appellant G & C Land (“G & C”) appeals the district court’s grant of summary judgment in favor of Defendant-Appellee Farmland Management Services (“Farmland”) in this suit arising out of an agricultural lease agreement. For the reasons stated herein, we AFFIRM.
I.
Plaintiff-Appellant G & C is a Texas general partnership engaged in the farming business. Defendant-Appellee Farmland is a California corporation engaged in the business of leasing farmland for landowners. On June 7, 2007, G & C and Farmland entered into an Agricultural Sublease (the “Lease”) involving over 5,000 acres of farmland in Yoakum County, Texas (the “Property”). The term of the Lease was for five years. G & C took possession of the Property in 2007 and maintained possession until the expiration of the Lease’s term at the end of the fifth crop season in 2011.
At the time that G & C took possession of the property, the irrigation system on the property was run by diesel-powered generators. Despite the unavailability of electricity at the time of contracting, Farmland’s agents represented to G & C that Farmland intended to make electricity available to power the irrigation system by the second year. According to G & C, Farmland’s agent David Baughman represented that “within a year, we will have [electricity]. We probably won’t get it this year, but by our second year we are going to get the electricity put in this farm. We already have the money set back in an account to do that. And that is our intentions [sic].”
During the term of the Lease, Farmland’s agents made numerous attempts to have electrical services extended to the Property. Specifically, Farmland’s agents engaged in multiple negotiations with the Lea County Electrical Cooperative, the local electric supplier, to have electricity provided to the Property. Despite these efforts, electrical services were not extended to the Property until the fifth year of the Lease. Consequently, for almost the entirety of the Lease’s term, the irrigation system on the Property was powered by diesel-powered generators, which far exceeded the cost of those powered by electricity.
Based on the foregoing, G & C sued Farmland in state court asserting claims for common law fraud, negligent misrepresentation, and violations of the Texas Deceptive Trade Practices Act (“DTPA”), Tex. Bus. & Com.Code § 17.41 et seq. On August 6, 2012, shortly after 10:00 A.M., G & C was granted a default judgment when Farmland failed to timely respond to G & C’s petition. Less than two hours later on the same day, Farmland electronically filed, in lieu of an answer, a notice of removal with the United States District Court for the Northern District of Texas. Farmland then filed a motion to set aside the default judgment, which was subsequently granted by the district court on October 12, 2012.
Thereafter, G & C filed a motion to amend its complaint seeking to add several non-diverse defendants that were Farmland’s agents, representatives or employees. The district court found, inter alia,
Farmland filed a motion for summary judgment contending that G & C’s claims failed as a matter of law. Specifically, Farmland argued that G & C failed to produce sufficient evidence to support its claim for common law fraud, failed to demonstrate that the misrepresentations were of an existing fact to give rise to a claim for negligent misrepresentation, and G & C’s claims brought pursuant to the DTPA were barred by the applicable statute of limitations. The district court granted Farmland’s motion and entered summary judgment in its favor. Thereafter, G & C filed this appeal arguing that the district court erred in (1) setting aside the default judgment, (2) denying it leave to amend its complaint, and (3) granting summary judgment in Farmland’s favor.
II.
A.
First, G & C contends that the district court erred by setting aside the default judgment. G & C does not challenge the district court’s findings as to whether setting aside the judgment would be prejudicial or whether Farmland presented a meritorious defense. Instead, G & C argues that the district court erred when it found that Farmland’s failure to timely answer the complaint or file a notice of removal was not willful, but rather, the result of excusable neglect. Farmland responds that the district court properly found that its failure to timely answer G & C’s petition was not willful.
The decision to .set aside a previously entered judgment is one reserved to the sound discretion of the district court. Harrell v. DCS Equip. Leasing Corp.,
A district court may set aside a default judgment when the defendant demonstrates that “good cause” exists to do so. CJC Holdings,
On the record presented, we conclude that the district court did not clearly err in finding that Farmland’s failure to timely respond to the pleadings was not willful, but the result of excusable. neglect. A party acts willfully when it intentionally fails to respond to the pleadings. See Lacy,
B.
G & C next contends that the district court erred by not allowing it to amend its complaint to include non-diverse defendants which, if joined, would have destroyed diversity jurisdiction. Without citing to applicable law or the record for support, G & C argues that its request for leave was not dilatory because it filed its motion within the deadline found in the court’s scheduling order. G & C further accuses the district court of denying it leave to preserve the court’s decision to set aside the default judgment.
We review a denial of leave to amend a complaint for abuse of discretion. Priester v. JP Morgan Chase Bank, N.A.,
“Although leave to amend under Rule 15(a) is to be freely given, that generous standard is tempered by the necessary power of a district court to manage a case.” Schiller v. Physicians Res. Grp. Inc.,
In Hensgens v. Deere & Co., this court directed district courts to exercise discretion when deciding whether to join a non-diverse party.
After weighing the Hensgens factors, the district court found that the factors tipped in favor of denying G & C leave to amend its complaint. First, the district court found that G & C sought amendment for the purpose of destroying diversity jurisdiction because G & C’s allegations were not aimed at the non-diverse defendants individually, but at the defendants collectively. Furthermore, the district court found that G & C was aware of the identities and activities of the non-diverse defendants before it filed suit in state court and only chose to add them as parties to the suit after the proceedings were removed to federal court. Second, the district court found that G & C had been dilatory in its request because it waited over four months after Farmland removed the case to federal court, and over two months after the court set aside the default judgment to seek leave to amend. Third, the district court found that G & C would not be significantly injured if amendment were not allowed because Farmland agreed to file, and subsequently did file, an amended answer in which it admitted that it was liable for the acts and omissions of the nón-diverse defendants who were acting as Farmland’s agents, representatives or employees. The district court further found that G & C could pursue its claims against the non-diverse defendants in state court. After review, we see no abuse of discretion
C.
Finally, G & C contends that the district court erred by granting Farmland’s motion for summary judgment. G & C argues that the district court improperly characterized Farmland’s alleged misrepresentations as promises of future action. G & C further argues that its claims brought pursuant to the DTPA were not time-barred.
“We review a district court’s grant of summary judgment de novo, applying the same standards as the district court.” Antoine v. First Student, Inc.,
The district court’s jurisdiction was based on diversity jurisdiction pursuant to 28 U.S.C. § 1332. In a diversity action, a federal court applies the substantive law of the state in which it sits. McBeth v. Carpenter,
The district court held that G & C’s claims for common law fraud and negligent misrepresentation failed as a matter of law, noting that both claims were predicated on Farmland’s promise of future performance rather than statements of existing fact. We agree. It is undisputed that at the time that G & C entered into the Lease, the irrigation system was run on diesel-powered generators and that electrical services had not been extended to the Property by the Lea County Electrical Cooperative. It is also undisputed that Farmland’s agents represented that electrical services would be provided by the second year of the Lease’s term, i.e., at a time in the future. Accordingly, Farmland’s misrepresentations were promises of future performance and not representations of existing fact.
Under Texas law, a promise of future performance is actionable fraud if the promise was made with no intention of performing at the time that it was made. See In re Haber Oil Co., Inc.,
Finally, “under Texas law, promises of future action are not actionable as a negligent misrepresentation tort.” De Franceschi v. BAC Home Loans Servicing, L.P., 477 Fed.Appx. 200, 205 (5th Cir.2012) (per curiam) (unpublished) (citing Scherer v. Angell, 253 S.W.3d 111, 781 (Tex.App.Amarillo 2007, no pet.)). In light of our finding that Farmland’s representations were promises of future performance and not statements of existing fact, we hold that the district court did not err in rendering summary judgment in favor of Farmland on G & C’s negligent misrepresentation claim.
III.
For the foregoing reasons, the district court’s judgment is in all respects AFFIRMED.
Notes
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.
. G & C argues for the first time on appeal, that its claims brought pursuant to the DTPA are not barred by the applicable two-year statute of limitations because the misrepresentations at issue were continuous in nature. G & C did not raise this argument in the district court. Indeed, G & C did not respond at all to Farmland’s contention that its claims were time-barred. "Under this Circuit's general rule, arguments not raised before the district court are waived and will not be considered on appeal unless the party can demonstrate extraordinary circumstances." French v. Allstate Indem. Co.,