* Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule

47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-20300

Summary Calendar

_____________________

CAROL OLSON,

Plaintiff-Appellant,

versus

WALLACE COMPUTER SERVICES, INC.,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(CA H 95-3502)

_________________________________________________________________

July 31, 1996

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:*

In June 1995, Carol Olson filed this action against her

employer, Wallace Computer Services, Inc., claiming age

discrimination, intentional infliction of emotional distress, and

breach of contract. On January 12, 1996, one week after the

district court dismissed this action (pursuant to FED. R. CIV. P.

12(b)(6)) and entered a final judgment (pursuant to FED. R. CIV. P.

58), Olson moved to vacate the dismissal and for leave to amend her
- 2 -

complaint. The district court denied her motion by order entered

February 8.

Olson contends that the district court erred by dismissing the

action, and abused its discretion by refusing to vacate the

dismissal and to grant leave to amend. But, because Olson’s notice

of appeal refers only to the February 8 order denying her postjudgment motion, and does not mention the January 5 order of

dismissal, the order of dismissal is not properly before us. See

FED. R. APP. P. 3(c); Capital Parks, Inc. v. Southeastern Advertising

& Sales System, Inc., 30 F.3d 627, 630 (5th Cir. 1994).

Although Olson’s motion for leave to amend her complaint was

filed after the entry of final judgment, the standards applicable

to FED. R. CIV. P. 15, rather than those applicable to FED. R. CIV. P.

59(e), govern our review of whether the district court’s denial of

leave to amend constituted an abuse of discretion. See Rourke v.

Thompson, 11 F.3d 47, 51 (5th Cir. 1993). Although leave to amend

“shall be freely given when justice so requires”, FED. R. CIV. P.

15(a), it “is by no means automatic”, Southern Constructors Group

v. Dynalectric Co., 2 F.3d 606, 612 (5th Cir. 1993); and our court

has affirmed such denials when the movant has engaged in undue

delay. See Whitaker v. City of Houston, Tex., 963 F.2d 831, 836-37

(5th Cir. 1992).

We find no abuse of discretion in the refusal to allow Olson

to amend. The motion to dismiss gave Olson clear notice of the
- 3 -

deficiencies in her original complaint. She could have responded

to the motion by filing an amended complaint, for which she would

not have had to seek leave of court. See FED. R. CIV. P. 15(a)

(pleading may be amended once as a matter of course at any time

before a responsive pleading is served); Whitaker, 963 F.2d at 834-

35 (a motion to dismiss is not a responsive pleading). Instead,

Olson moved for an extension of time to respond to Wallace’s

motion, asserting that she needed 75 days within which to conduct

discovery. Wallace opposed an extension, asserting that discovery

was unnecessary, and asking the court to order Olson to respond to

the motion with an amended complaint.

After receiving two extensions of time in which to respond,

and requesting a third extension for which the record contains no

ruling, Olson still did not seek leave to amend; instead, she filed

a response, three days late, in which she stated that, “at the

appropriate time she will seek leave of Court to amend”. She did

not seek such leave, however, until after the action had been

dismissed. Under these circumstances, we cannot say that the

district court abused its discretion by denying Olson’s untimely

request for leave to amend. Accordingly, the post-judgment order

is

AFFIRMED.