IN THE UNITED STATES COURT OF APPEALSGe

FOR THE FIFTH CIRCUIT

No. 16-60389

Summary Calendar 

TERESA MILLER, 

Plaintiff - Appellant 

v. 

WHIRLPOOL CORPORATION; A & E FACTORY SERVICES; 

SIEMENS CORPORATION, 

Defendants - Appellees 

Appeal from the United States District Court 

for the Southern District of Mississippi 

USDC No. 3:13-CV-747

Before JONES, WIENER, and CLEMENT, Circuit Judges. 

PER CURIAM:*

A fire destroyed a mobile home and personal property owned by plaintiffappellant Teresa Miller. Miller claims that the fire began when a 

subcontractor, A & E Factory Services, attempted to repair her broken 

Whirlpool dryer, during the course of which a breaker box allegedly designed 

or manufactured by Siemens Corporation blew. Armed with these allegations, 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

January 6, 2017 

Lyle W. Cayce

Clerk

 Case: 16-60389 Document: 00513824863 Page: 1 Date Filed: 01/06/2017
No. 16-60389

2 

Miller sued defendants-appellees A & E Factory Services, Whirlpool 

Corporation, and Siemens Corporation. The district court granted summary 

judgment in favor of all defendants. We AFFIRM. 

The district court disposed of the claims against each defendant in 

separate orders. First, as to Siemens Corporation, Siemens had filed a motion 

to strike Miller’s proffered expert report because it did not opine that the 

breaker box was defective or that the breaker box caused the fire. Siemens had 

also filed a motion for summary judgment, arguing that it did not design or 

manufacture the breaker box. The district court, finding that the expert report 

was speculative and inadmissible, granted the motion to strike. In addition, 

the district court granted summary judgment because Miller did not show that 

Siemens Corporation was the designer or manufacturer of the breaker box or 

was responsible for the fire. The district court therefore dismissed Siemens 

Corporation. 

Second, Whirlpool moved for summary judgment, arguing that it was not 

liable for the acts of its independent contractor, A & E, and there was no proof 

that the Whirlpool dryer caused or contributed to the fire. The district court 

granted the motion because Miller’s expert report did not say Whirlpool was 

responsible and, under Mississippi law, Whirlpool was not vicariously liable 

for A & E. The district court therefore dismissed Whirlpool as well. 

 Third, A & E had moved to strike Miller’s expert report and for summary 

judgment. After Miller did not respond to the motions for over nine months, 

the district court ordered Miller to show cause for her failure to respond. When 

Miller still did not respond, the district court granted both motions and 

dismissed Miller’s claims against A & E for failure to prosecute. 

In the meantime, Miller filed Rule 56(d) motions, requesting further 

discovery in response to Siemens’s and Whirlpool’s motions, which the district 

court denied. On appeal, she asserts only that the district court erroneously 

 Case: 16-60389 Document: 00513824863 Page: 2 Date Filed: 01/06/2017
No. 16-60389

3 

denied her request for further discovery. She claims that she was unable to 

fully inspect the breaker box and consequently was not able to determine the 

exact cause of the fire. 

This court reviews a district court’s denial of a Rule 56(d) motion for 

abuse of discretion. Am. Family Life Assur. Co. of Columbus v. Biles, 714 F.3d 

887, 894 (5th Cir. 2013). “Non-moving parties requesting Rule 56(d) relief ‘may 

not simply rely on vague assertions that additional discovery will produce 

needed, but unspecified, facts.’” Id. (internal citation omitted). 

We find no abuse of discretion. Miller raises no new arguments and 

offers no reason to find an abuse of discretion. Moreover, even if the court had 

allowed further discovery, Miller’s claims against defendants would fail for the 

reasons briefed in this court by the defendants. With regard to Siemens, 

Miller’s expert report does not indicate that further inspection would have 

revealed that Siemens manufactured the breaker box. With regard to 

Whirlpool, Miller does not allege that the Whirlpool dryer was defective, nor 

does Miller contest that A & E is an independent contractor for whom 

Whirlpool has no vicarious liability. See, e.g., Chisolm v. Miss. Dep't of Transp., 

942 So. 2d 136, 141 (Miss. 2006). Granting Miller’s request for additional

discovery would therefore not affect the outcome of this action. The district 

court did not abuse its discretion in denying Miller’s Rule 56(d) motion. 

Miller raises the same Rule 56(d) arguments against A & E, but she 

never filed a Rule 56(d) motion in response to A & E’s motions. In fact, she 

filed no responses to A & E’s motions. Moreover, on appeal, she has not 

challenged the district court’s order granting both motions and dismissal for 

failure to prosecute. It is well settled that “[a]ny issue not raised in an 

appellant's opening brief is deemed waived.” United States v. Pompa, 434 F.3d 

800, 806 (5th Cir. 2005). Miller waived this issue. 

The judgments of the district court are AFFIRMED. 

 Case: 16-60389 Document: 00513824863 Page: 3 Date Filed: 01/06/2017