### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-10897 Summary Calendar

SUSIE M. WARD, Plaintiff-Appellant
v. CNH AMERICA, L.L.C., IND. & CASE NEW HOLLAND AMERICA, L.L.C., also known as Ford New Holland; SUN LIFE ASSURANCE COMPANY OF CANADA, Defendants-Appellees

Appeal from the United States District Court f or the Northern District of Texas U SDC No. 3:11-CV-00762-L

Before KING, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * Susie M. W ard filed state law claims in Texas state court stemming from the denial of death benefits under a life insurance policy. The distr i ct court denied Ward leave to amend her pleading and dismissed Ward’s state law causes
o f a ction on s ummary judgment. Ward appeals only t he denial of leave t o amend. We AFFIRM. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D J uly 1, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-10897 Document: 00512293178 Page: 1 Date Filed: 07/01/2013No. 12-10897

Ward’s l a te ex-husband was an employee of C NH America, L.L.C., and t h r o ugh CNH enrolled in a life insurance plan with Sun Life A ssurance Company of Canada. Although Ward and her husband w ere married at the time of enrollment, they were divorced at the time of the husband’s death in 2009. CNH a nd Sun Life removed the a ction to federal court on t he basis of both diversity and f

ederal question jurisdiction. The fe d e r a l qu e s t i on j urisdiction was based on the argument that Ward’s state law c laims were completely preempted by t he Employee R e t i r e m e n t Income Security Act, or ERISA. Approximately eight months l ater, after the deadline to amend p leadings h ad p assed and one day prior to the deadline for summary judgment b riefing, Ward moved for leave to amend her complaint to restate her claims under ERISA. T h e magistrate judge recommended that summary judgment on Ward ’ s state law claims be gr a n t e d i n favor of CNH and Sun Life and t hat leave to amend the pleading be denied. T he district court granted summary j u d gment in favor of CNH and Sun Life and denied l e a v e to amend. W ard appeals only from the denial of leave to amend. DISCUSSION Ward first argues that a district c ourt order vacating pretrial deadlines rendered h e r m o t i o n for leave to a mend timely, s uch that the district court should have considered the motion under the m ore liberal standards o f Fed. R. Civ. P. 15(a), rather than Rule 16(b)

. Absent “extraordinary c i rcumstances,” arguments not raised to such a degree that the district court h a s an opportunity to rule on them are waived on appeal. Vogel v . Veneman , 276 F.3d 729, 7 33 (5th Cir. 2002). Ward d id not raise this argument before the district court and has pointed to no extraordinary circumstances j u stifying that failure. Therefore, Ward has waived this argument. In the alternative, Ward contends the district court e rred in denying leave to amend a fter t he expiration of t he scheduling order deadline. “We review for

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abuse of discretion the district court’s denial of leave to amend.” S&W Enters., L.L.C. v. SouthTrust Bank of Ala., N A , 315 F.3d 533, 5 36 ( 5 t h Cir. 2003). To

excuse a failure to meet a scheduling order deadline, a movant must s how “good cause.” Id

. We review a district c ourt’s refusal to modify a scheduling order for an abuse of discretion by focusing on these factors: (1) the explanation for lack of a timely motion, (2) the amendment’s importance, (3) potential p r ej udicial impact if allowed, and (4) availability of a continuance to mitigate any prejudice. Id. First, the good cause inquiry “re q u i r es the ‘party s e eking relief to show that the deadlines cannot reaso n a b l y b e met despite the diligence o f the party needing the extension.’” Id. at 535. Ward conceded before the district court and concedes here that she h as “not provided a reasonable explanation f or the failure to timely move for leave to a mend” and asserts that this f ailure was simply “an innocent mistake.” Second, the district court accepted the magistrate j udge’s determination that allowing leave to amend was important. 1 Weighing in favor of this finding is the fact that, as leave to amend was denied in the same order dismissing all of Ward’s o ther claim s , d e n i a l o f leave left Ward with “no remaining t heory of recovery.” Meaux Surface Protection, Inc. v. Fogleman , 607 F.3d 161, 167 (5th Cir. 2010). Third, the district court adopted the magistra t e j u d g e ’ s f i n di n g o f p r e

j u dice to defendants, p rejudice by way of imposing “additional and avoidable costs” in the form of additional discovery and motion practice. See Parish v. Frazier , 195

1 Even if Ward w ere ultim ately allow ed to am end , it ap p ea r s – although we d o not d ecid e – that her p rim ary claim f or benef its und er the p lan w ould not s ucceed

. We have recognized “ERISA- es top p el as a cognizable theory. ” M el lo v . Sa ra Lee Corp

. , 431 F. 3d 440, 444 ( 5t h C i r. 2005)

. E RISA- es top p el is not p erm itted , how ever, on the bas is of oral
m od if ications , ap p arently the only m is rep res entation at is s ue here. See i d. at 446.

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F

. 3 d 7 6 1 , 7 6 4 (5th Cir. 1999). In opposition to this f inding, W ard argues t he need for additional discovery would be unnecessary or “minima l

. ” Ye t , di s c o v ery, t o d a t e , h a s b e e n m i nimal and Ward’s proposed amended complaint likely invi t e s additional discovery and certainly additional motion practice. Fourth, the nature of this prejudice does not render it cura b l e b y a continuance. District judges c ontrol their dockets by setting and enforcing adherence to reasonable deadlines. See S&W Enters., L.L.C. , 315 F. 3 d a t 537. Here, particularly the first factor, but also the third and fourth weigh against Ward. We have previously affirmed the exercise o f a district court’s discretion to deny leave to a mend, when the first and third factors w eighed against the movant

– emphasizing the first factor. See Fahim v. Marriott Hotel Servs., Inc. , 551 F.3d 344, 348 (5th C ir. 2 008). I n light o f the four-factor inquiry into “good cause” on t h e p resent s et of facts, we cannot s ay t hat the district court abused i t s discretion in refusing to grant leave to amend. AFFIRMED.

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