*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 circumstancesset forth in 5THCIR. R. 47.5.4.

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UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-41125

Summary Calendar

MARCOS VILLEGAS,

Plaintiff-Appellant,

VERSUS

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

For the Southern District of Texas

(B-93-CV-111)

August 15, 1997

Before WISDOM, KING, and SMITH, Circuit Judges.

PER CURIAM:*

On July 20, 1992, Marcos Villegas was one of a large group of

illegal aliens attempting to evade detection and capture by the

U.S. Border Patrol approximately 100 miles north of Brownsville,

Texas, near the Sarita Border Patrol check point. At approximately
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10:15 p.m., the group was spotted by Border Patrol agents, who

issued a warning that Immigration agents were in the area. As the

group scattered, Villegas hid in a field of tall grass by lying

with his face toward the ground.

Agent Robert Allman drove a Border Patrol vehicle in pursuit

of the aliens and accidentally struck and injured Villegas while he

was hiding. Villegas sued the Government for the negligence of its

employee pursuant to the Federal Tort Claims Act, 28 U.S.C. §

1346(b). He alleged that Allman was negligent for failing to keep

a proper lookout, failing to control his speed, and failing to

timely apply the brakes. The Government alleged that Villegas’s

injuries were the result of his own negligence.

At trial, Villegas attempted to introduce a new theory of

negligence, arguing that the Government was negligent for failing

to implement a policy under which officers would conduct foot

searches in front of vehicles looking for aliens. The Government

objected to this new theory. Villegas moved to amend the pleadings

to conform with his allegation. The magistrate refused to consider

the defendant’s argument because it was not pleaded in the

complaint, and no discovery was conducted on the issue.

Villegas contends that the magistrate judge erred in refusing

to consider his new claim. He urges that the claim was identified

in the joint pretrial order and, therefore, was properly before the

court under Fed. R. Civ. P. 16. He asserts that, even if not
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properly pleaded, the claims were tried by consent of the parties

under to Fed. R. Civ. P. 15(b) and that the magistrate judge erred

in refusing to allow an amendment to conform to the evidence. We

disagree, and for the reasons that follow, we AFFIRM.

Both a trial court's interpretation of a pretrial order and

its decision to deny an amendment to the pleadings are reviewed for

abuse of discretion. Thrift v. Hubbard, 44 F.3d 348, 356 (5th Cir.

1995); Moody v. FMC Corp., 995 F.2d 63, 65 (5th Cir. 1993).

The language in the pretrial order is insufficient to put the

Government on notice that Villegas was asserting a new theory of

negligence. As the Government points out, the pretrial order does

not specifically refer to a claim of negligence based upon the

failure to implement a foot-search policy, nor do the attached

witness or exhibit lists demonstrate that Villegas intended to

offer evidence in support of such a claim. Accordingly, the

magistrate judge did not abuse his discretion in interpreting the

pretrial order as failing to properly raise the new claim. See,

e.g., Lamborn v. Dittmer, 873 F.2d 522, 526-27 (2nd Cir. 1989).

The magistrate likewise did not abuse his discretion in

refusing to allow a trial amendment under to Fed. R. Civ. P. 15(b).

Rule 15(b) provides the limited circumstances in which a trial or

post-judgment amendment to conform the pleadings to the evidence

and assert claims not raised by the pleadings is permitted. The

rule directs a court to determine whether the parties expressly or
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impliedly consented to try the issue not raised in the pleadings.

Fed. R. Civ. P. 15(b). The record in this case does not support a

finding of express consent. To support a finding of implied

consent, a court must consider “whether the parties recognized that

the unpleaded issue entered the case at trial, whether the evidence

that supports the unpleaded issue was introduced at trial without

objection, and whether a finding of trial by consent prejudiced the

opposing party’s opportunity to respond.” Portis v. 1st Nat’l Bank

of New Albany, Miss., 34 F.3d 325, 332 (5th Cir. 1994), quoting

United States v. Shanbaum, 10 F.3d 305, 312-13 (5th Cir. 1994).

Generally, a court will find implied consent if a party fails to

object to evidence supporting issues that go beyond the pleadings.

Id.

Villegas asserts that the claim was tried by consent because

the Government did not object to the presentation of evidence

regarding policies, training, and whether agents should have posted

lookouts on the ground. It appears, however, that most of this

evidence was not objected to because it was relevant to Allman’s

duty to keep a proper lookout, one of the pleaded issues in the

case. Moreover, the Government did object to evidence regarding

Border Patrol policies on the grounds that the evidence fell

outside the scope of the pleadings and that the witnesses were not

qualified to testify about matters of policy. 

The Government’s objections demonstrate lack of consent. This
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fact alone may support a court’s denial of a motion to amend.

Moody, 995 F.2d at 66. Further, trial by consent requires that the

parties actually recognize the issue to have been litigated.

Trinity Carton Co., Inc. v. Falstaff Brewing Corp., 767 F.2d 184,

192 (5th Cir. 1985). A party does not impliedly consent by failing

to object to evidence which is relevant to pleaded issues. Moody,

995 F.2d at 66. Thus, the Government’s failure to object to issues

relevant to the allegations in the complaint do not demonstrate

trial by consent. 

Despite the Government’s objections, the magistrate judge may

have abused his discretion if allowing the proposed amendment would

have promoted the interests of justice without prejudice to the

Government. Id. In deciding whether to allow amendment over a

party’s objection, the district court should consider: 1) the

interests of justice; 2) the potential prejudice to the objecting

party; and 3) whether the requesting party unduly delayed its

request to amend its pleadings. Id. The magistrate judge found

that the Government was prejudiced by its inability to conduct

discovery on the policy issue and its corresponding failure to

present appropriate witnesses to testify at trial. The magistrate

also concluded that Villegas unduly delayed his request for an

amendment: discovery had long since been completed, trial was

nearly complete, and Villegas gave no reason for the delay. These

findings are not erroneous. See e.g., Moody, 995 F.2d at 66,
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holding that a motion to amend was unduly delayed because discovery

was completed, trial was already underway, and delay was

unexplained. The interests of justice did not override the

prejudice to the Government and the defendant’s undue delay in

requesting the amendment. We hold, therefore, that the magistrate

judge’s denial of the defendant’s motion to amend was not an abuse

of discretion.

AFFIRMED.