S&w Enterprises, L.L.C., a Nevada Limited Liability Company v. Southtrust Bank of Alabama, Na, an Alabama Banking Corporation, 315 F.3d 533

S&w Enterprises, L.L.C., a Nevada Limited Liability Company v. Southtrust Bank of Alabama, Na, an Alabama Banking Corporation

315 F.3d 533

5th Cir.

2003

Check Treatment

Docket

DUHÉ, Circuit Judge:

Appellant S&W Enterprises, L.L.C. appeals from the district court’s order granting summary judgment in favor of Appel-lee SouthTrust Bank of Alabama, N.A., arguing that the court abused its discretion in denying Appellant leаve to amend its complaint. Appellant argues also that fact issues preclude summary judgment. We affirm.

BACKGROUND

SouthTrust Bank of Alabama (“South-Trust”) sold to Daiwa Bank Limited (“Dai-wa”) a $10 million partiсipation in a $24 million loan SouthTrust had issued to Medical Technology Systems, Inc. The agreement between SouthTrust and Daiwa (“Participation Agreement”) prohibited Daiwa from assigning its intеrest without SouthTrust’s consent, which consent SouthTrust agreed not to withhold unreasonably. Thereafter, Daiwa and S&W Enterprises, L.L.C. (“S&W”) entered into an agreement (“Purchase Agreement”) whereby S&W would acquire Daiwa’s participation interest. S&W’s obligation to purchase and Daiwa’s obligation to sell the participation interest were contingent on SouthTrust’s consent to the assignment agreement (“Assignment”) that would consummate the purchase. When the parties sought SouthTrust’s consent to the Assignment, S&W alleges that SouthTrust imposed unreasonable conditions before it would consent. S&W refused to meet the cоnditions, and SouthTrust refused to consent to the Assignment. S&W sued SouthTrust for breach of contract, alleging that it was a third party beneficiary to the Participation Agreement, and tortious intеrference with prospective advantage, naming the Assignment.

The district court, on SouthTrust’s 12(b)(6) motion, dismissed S&W’s breach of contract claims, leaving S&W to pursue only its interference with prospective advantage claim. The court’s Third Amended Scheduling Order, issued March 7, 2001, set the deadline for amendment ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of pleadings at June 11, 2001 and the deadline for completion of discovery at October 5, 2001. Trial was schеduled for the court’s February 4, 2002 docket.

On March 8, 2001, the Texas Supreme Court decided Wal-Mart Stores, Inc., v. Sturges, 52 S.W.3d 711 (Tex.2001). Sturges clarified that tortious interference with prospective advantage requires a plaintiff to show that the defendant’s con- *535 district courts within our circuit, 2 have аpplied Rule 16(b) when leave to amend would require modification of the scheduling order. We take this opportunity to make clear that Rule 16(b) governs amendment of pleadings after a scheduling order deadline has expired. Only upon the mov-ant’s demonstration of good cause to modify the scheduling order will the more liberal standard of Rule 15(a) aрply to the district court’s decision to grant or deny leave.

The district court denied S&W leave to amend because its motion was untimely and because of potential prejudice to SouthTrust or, alternatively, unnecessary delay of the trial. The court premised its denial also on its conclusion that S&W offered no adequate explanation for its failure to comply with the scheduling order. 3 As the district court noted, the same facts were known to S&W from the time of its original complaint to the time it moved for leave to amend. S&W could have asserted interference with contract from the beginning, but fails to explain why it did not. S&W’s explanation for its delayed analysis of Sturges — inadvertence' — is tantamount to no explanation at ah.

In the context of allowing untimely submission of expert reports, this Court has applied a four-part test to determine whether the district court’s refusal to modify its scheduling order was an abuse of discretion. We find this test appropriate as well in the context of untimely motions to amend pleadings. We consider “ ‘(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 continuancе to cure such prejudice.’ ” Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257 (5th Cir.1997) (quoting Geiserman v. MacDonald, 893 F.2d 787, 791 (5th Cir.1990)). 4

Three of the four factors weigh against S&W — the first because S&W offers effectively no explanation, and the third because, as S&W would assert a different cause of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍action, SouthTrust would be re *536 quired to conduct additional discovery. The fourth factor weighs against S&W because, while a continuance could be granted for additional discovery, the district court found that a continuance would unnecessarily delay the trial. In view of district judges’ “power to control their dockets by refusing to give ineffective litigants a second chance to develop thеir case,” Reliance Insurance, 110 F.3d at 258, we conclude that it was within the judge’s sound discretion not to grant a continuance. Taking the court’s conclusions as a determination that good cause to modify thе scheduling order is absent, we find no abuse of discretion in the district court’s refusal to grant leave to amend.

II. SUMMARY JUDGMENT

A. Standard of review

We review a district court’s grant of summary judgment de novo, applying the same standards as would the district court. Pratt v. Houston, 247 F.3d 601, 605-06 (5th Cir.2001). Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once a movant makes a properly supported motion, the burden shifts to the nonmovant to show that summary judgment should not be granted. Id. at 321-25, 106 S.Ct. at 2551-54. The non-movant may not rest upon allegations in the рleadings, but must set forth and support with summary judgment evidence facts showing the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-57, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986). All evidence and the reasonable inferences to be drawn thеrefrom must be viewed in the light most favorable to the non-movant. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

B. SouthTrust’s motion for summary judgment

SouthTrust argued that its refusal to consent to the Assignment, reasonable or not, could not be the basis of the independent tort required by Sturges. S&W contended that SouthTrust’s conduct was tortious in that SouthTrust breached its duty to perform ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍its contract obligation to Daiwa with the “faithfulness” required by law, citing Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508 (1947). The district court granted summary judgment, concluding that S&W demonstrated no fact issue as to South-Trust’s unreasonableness.

S&W admits that it produced no evidence in support of the factual predicate tо its faithfulness argument, SouthTrust’s unreasonableness. It argues it was not required to do so because SouthTrust, having presented the district court with a pure question of law, never shifted to S&W the burden of demonstrating a fact issue. S&W argues аlso that SouthTrust conceded in its memorandum in support of summary 'judgment that it had acted unreasonably.

While we do not agree that South-Trust conceded its own unreasonableness, wе see merit in S&W’s contention that SouthTrust never shifted to S&W the burden of producing a fact issue. Even so, we conclude that we must affirm summary judgment because SouthTrust’s unreasonableness would not constitute an independent tort аs required by Sturges. Summary judgment must be affirmed if it is sustainable on any legal ground in the record, In re Jones, 966 F.2d 169, 172 (5th Cir.1992), and it may be affirmed on *537 grounds rejected or not stated by the district court. Landry v. Air Lines Pilots Ass’n, 892 F.2d 1238, 1252, (5th Cir.1990).

In support of its position that SouthTrust’s alleged unreasonableness violated a duty of faithfulness, S&W cites Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508, in which the Texas Supreme Court stated: “ ‘Accompanying every contract is a common-law duty to perform with care, skill, reasonable expedience and faithfulness ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the thing agreed to be done, and a negligent failure to observe any of these conditions is a tort, as well as a breach of the contract.’ ” Id. at 510 (quoting 38 Am.Jur. § 20 (1941)). This language from Scharrenbeck must be considered in context. The defendant in Scharrenbeck negligently repaired the plaintiffs heater, whiсh then caused a fire that destroyed the plaintiffs house. The Texas Supreme Court held that the plaintiff was not limited to recovery in contract; the basis for the plaintiffs tort recovery was a duty implied by law regardless of the contract obligation. As the supreme court later explained in Southwestern Bell Telephone Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex.1991), “Although the contract obligated the defendant to put the water heater back in good working order, the law also implied a duty to the defendant to act with reasonable skill and diligence in making the repairs so as not to injure a рerson or property by his performance.” In contrast, a duty owed only by virtue of contract obligation, such as that owed by SouthTrust, does not give rise to tort liability. Id. The damages аrising from the defendant’s conduct are instructive also; if damages arise solely from the loss of the contract benefit, the claim sounds only in contract. Id. at 495; Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex.1986). Other damages, such аs property damage or personal injury, can be recovered in tort. Id.

SouthTrust owed a duty not to withhold consent unreasonably solely because of the Participatiоn Agreement between it and Daiwa. SouthTrust’s breach would entitle Daiwa to recover only for loss of the contract benefit of obtaining SouthTrust’s consent to an assignment of Daiwa’s participation interest. We hold that South-Trust’s failure to consent to the Assignment, regardless of its reasonableness, was not independently tortious and therefore provides no basis for S&W’s interference with prospective advantage claim.

III. CONCLUSION

We find no abuse of discretion in the district court’s denial of leave to amend. SouthTrust’s unreasonableness in failing to consent to the Assignment is insufficient to constitute the indepеndent tort required by Sturges. We therefore affirm the judgment of the district court.

AFFIRMED.

Notes

. See, e.g., Dallas Area Rapid Transit v. Foster, 2002 WL 31433295, at *1 (N.D.Tex. Oct. 28, 2002); Howell v. Standard Motor Products, Inc. 2001 WL 196969, at *1 (N.D.Tex. Feb 26, 2001); Porter v. Milliken & Michaels, Inc. 2001 WL 378687, at *1 (E.D.La. April 12, 2001); Bakner v. Xerox Corp. Employee Stock Ownership Plan 2000 WL 33348191, at *13 (W.D.Tex. Aug. 28, 2000).

. "S&W offers no adequate basis for its failure to amend within the deadlines established by the court.... S&W offers no explanation for the delayed analysis of Sturges, which resulted in its untimely filing. Moreover, S&W wholly fails to explain why it could not have set forth a claim of tortious intеrference with a contract at the time its lawsuit was filed in 1998.” S&W Enters., L.L.C. v. Southtrust Bank of Ala., 180 F.Supp.2d 811, 815 (N.D.Tex.2001).

. Our previous opinions in Estate of Strangi v. Comm’r, 293 F.3d 279 (5th Cir.2002), and Lyn-Lea Travel Corp. v. American Airlines, Inc., 283 F.3d 282 (5th Cir.2002), did not apply the good cause standard. Estate of Strangi discussed Rule 15(a) because Tax Court Rule 41(a), which governs amendment ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of pleadings in the Tax Court, was modeled on Rule 15(a). Thе parties in Estate of Stran-gi were not subject to a deadline for amendment of pleadings. In Lyn-Lea Travel, we found no abuse of discretion in the district court’s allowing amendment after the deadline for plеadings had expired. We were not called upon in either case to consider the interaction between Rules 15(a) and 16(b). Having done so today, we conclude that the presence of a scheduling order renders the Rule 15 inquiry secondary. To the extent that Lyn-Lea Travel may be in tension with Geiser-man and Reliance Insurance, we are bound to apply Geiserman and Reliance Insurance, which predate Lyn-Lea Travel and are germane to the district court’s right to enforce its scheduling order.