* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-40766

Summary Calendar

_______________

DAVID G. MANNING,

Plaintiff-Appellant,

VERSUS

BROWN & WILLIAMSON TOBACCO CORPORATION,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

(1:94-CV-494)

_________________________

March 9, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Plaintiff David Manning, proceeding pro se, appeals the

dismissal of his complaint pursuant to FED. R. CIV. P. 12(b)(6),

alleging that the district court abused its discretion when it

refused his requests for additional discovery and for leave to

amend his complaint. Finding no abuse of discretion, we affirm. 
2

I.

Manning, a prison inmate, brought this diversity action

charging that defendant Brown & Williamson Tobacco Corporation

(“Brown & Williamson) had been negligent, grossly negligent, and

strictly liable for the sale of cigarettes and had conspired to

mislead the public on the dangers of consuming cigarettes. The

court entered a stay order pending a decision in American Tobacco

Co. v. Grinnell, 951 S.W.2d 420 (Tex. 1997). After the Grinnell

decision, the stay order was lifted, and Brown & Williamson moved

to dismiss, arguing that Manning had failed to state a claim upon

which relief can be granted. The court did not permit further

discovery but, accepting the magistrate judge’s recommendation,

granted the motion to dismiss.

II.

We review decisions regarding discovery and requests to amend

for abuse of discretion. Mayo v. Tri-Bell Indus., 787 F.2d 1007,

1012 (5th Cir. 1986). We find no such abuse here.

A.

Manning does not challenge the merits of the dismissal but,

instead, argues that the court abused its discretion by staying

discovery pending a determination of whether he had stated a claim

upon which relief could be granted. Unfortunately, Manning does

not explain how further discovery could affect that decision.
 

1 See Perez v. Brown & Williamson Tobacco Corp., 967 F. Supp. 920 (S.D.

Tex. 1997) (finding that cigarettes are inherently unsafe under Texas law, and

a products liability suit based on a manufacturing defect is barred by statute);

see also TEX. CIV. PRAC. & REM. CODE § 82.004(a). Manning’s claims that Brown &

Williamson breached its duty to warn of the dangers of cigarette smoking also

fails because this court has held that cigarette manufacturers have no such duty

under Texas law. See Allgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168, 172 (5th

Cir. 1996). Because there is no such duty, Manning’s claim of conspiracy to

withhold warnings also fails.

3

Because the court rejected the underlying theory Manning advanced,1

its decision to stay discovery pending resolution of this question

of law could not be an abuse of discretion. 

B.

Manning also argues that as a pro se plaintiff, he should have

been given an opportunity to amend in the face of a rule 12(b)(6)

motion. See Bazarowx v. Scott, 136 F.3d 1053 (5th Cir.), cert.

denied, 119 S. Ct. 156 (1998). We agree with Brown & Williamson,

however, that the court did not err in refusing his request to

amend, because it gave Manning adequate notice of the motion to

dismiss and because he has alleged his best case. See id. at 1054.

A district court may consider factors such as undue delay,

repeated failures to cure deficiencies with prior amendment, and

futility of amendment when exercising its discretion to deny a

motion to amend. Davis v. United States, 961 F.2d 53, 57 (5th Cir.

1991). Manning had approximately seven months to file an

amendment; he did file responses to the motion to dismiss and to

the magistrate judge’s recommendation. Thus, he had plenty of

notice as well as ample opportunity to respond to the motion to

dismiss.
4

Additionally, we believe Manning has filed his best case,

because he could not amend his lawsuit to avoid the grounds for its

dismissal. Texas has barred all product liability actions based on

alleged defects in tobacco products. See TEX. CIV. PRAC. & REM. CODE

§ 82.004(a). Manning’s action constitutes such a “product

liability action” as defined in the statute. Thus, the district

court did not err when, following the reasoning of Perez, it found

that Texas law barred claims under Manning's theory of liability.

See Perez, 967 F. Supp. at 927.

AFFIRMED.