IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________

No. 14-30423

___________

JAMES JOHNSON,

Plaintiff – Appellant

v.

PPI TECHNOLOGY SERVICES, L.P.,

Defendant – Appellee

__________________________

Appeals from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:11-CV-2773

__________________________

Before JOLLY and DENNIS, Circuit Judges, and RAMOS*, District Judge.

PER CURIAM:**†

On November 8, 2010, Appellant James Johnson (Johnson) was 

working as a drilling superintendent off the coast of Nigeria on an oil rig

affixed to the HIGH ISLAND VII. According to Johnson, Nigerian gunmen 

boarded the rig using stairs that rig employees had left extended in violation 

* District Judge of the Southern District of Texas, sitting by designation.

** 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not be published and is not precedent except under the limited circumstances set forth in 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

March 31, 2015

Lyle W. Cayce

Clerk

 

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of security precautions. The gunmen shot Johnson in the leg, causing severe 

damage to his leg and requiring months of hospitalization, numerous 

surgeries, and a knee replacement, leaving him with limited mobility. On 

November 8, 2011, Johnson filed a complaint seeking remedies under the 

Jones Act, 46 U.S.C. § 30104, and general maritime law against various 

corporate entities, including PPI Technology Services, L.P. (PPI Tech). 

At issue in this appeal is Johnson’s claim that PPI Tech was his 

employer and owed duties in negligence to Johnson. The District Court Chief 

Judge, Sarah S. Vance, denied PPI Tech’s motion to dismiss on the employer 

issue after converting it to a summary judgment motion and finding that 

there were disputed issues of material fact. After two years and extensive 

discovery, PPI Tech filed a second motion for summary judgment with 

additional evidence, reurging its argument that it was not Johnson’s 

employer. Judge Carl Barbier, to whom the case had been reassigned,

granted PPI Tech’s motion.

Johnson appeals, raising three issues. He claims that the trial court 

erred in (1) reconsidering the employment relationship on a second summary 

judgment after the first such motion was denied; (2) finding as a matter of 

law that PPI Tech was not his employer; and (3) refusing to allow him to 

amend his complaint to join a new defendant as his employer. Because we 

find no error or abuse of discretion, we affirm.

I.

SUCCESSIVE SUMMARY JUDGMENT MOTIONS

Johnson contends that Judge Barbier should have treated Chief Judge 

Vance’s prior holding—that material fact issues precluded summary 

judgment on PPI Tech’s status as Johnson’s employer—as a final one, 

permitting him to take the issue to the jury. PPI Tech responds that it was 

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appropriate to consider a second motion because the parties had, in the 

meantime, conducted extensive discovery with every opportunity to develop 

evidence that had not been submitted with the first motion.

We treat such matters as falling within a trial court’s discretion to 

control its docket. Enlow v. Tishomingo Cnty., Miss., 962 F.2d 501, 507 (5th 

Cir. 1992) (the timing and sequence of motions, including successive 

summary judgment motions, best lies at the district court’s discretion). That 

discretion may be exercised whether or not new evidence is submitted with

the subsequent motion. Id. at 506 (permitting successive motion on expanded 

record); Hudson v. Cleco Corp., 539 F. App’x 616, 617-18 (5th Cir. 2013) 

(subsequent motion allowed, despite lack of new evidence).

The trial court’s discretion to make these decisions regarding the 

manner in which the case proceeds is not limited by a prior judge’s 

participation in the case. Thus, despite another judge’s earlier decision, the 

matter may be reconsidered and decided differently. Cannon v. Principal 

Health Care of La., Inc., 87 F.3d 1311, *1 (5th Cir. 1996) (per curiam)

(unpublished) (refusing to apply the “law of the case” to bar reconsideration of

a motion accompanied by new evidence when the first motion was denied by a 

different judge). We therefore hold that Judge Barbier acted within his 

discretion to consider PPI Tech’s second motion for summary judgment

despite the fact that Chief Judge Vance had already denied a summary 

judgment motion on the same issue.

II.

PPI TECH AS EMPLOYER

A. Standard of Review

We review the granting of summary judgment de novo. Cal-Dive Int’l, 

Inc. v. Seabright Ins. Co., 627 F.3d 110, 113 (5th Cir. 2010). Summary 

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judgment should be affirmed when the evidence, viewed in the light most 

favorable to the non-movant, shows that there is no genuine issue as to any 

material fact and the moving party is entitled to judgment as a matter of law. 

Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 809 (5th Cir. 1991); 

Fed. R. Civ. P. 56(c). Here, the operative facts are not in dispute, although 

their legal significance is contested. 

B. Facts

Afren1 was responsible for operating the drilling rig on the HIGH 

ISLAND VII. Afren contracted with PPI Technology Services Nigeria (PPIN) 

to provide drilling services on the rig, including furnishing skilled and 

professional workers. PPIN met its contractual obligations to Afren through 

a Consulting Services Agreement (CSA) with Petroleum Services Limited 

(PSL) and PPI Tech. According to the CSA, PPI Tech would provide a 

number of support services to PSL for use in PPIN’s business and operations, 

including furnishing employees skilled in engineering support, project 

management support, quality assurance, materials and logistical support, 

and training. 

In return, PPIN agreed to pay a monthly fee to PPI Tech, along with a 

fee equal to “actual employee cost” plus fifteen percent and reimbursement of 

expenses for personnel supplied to PSL for PPIN’s operations. From those 

payments, PPI Tech transferred to PSL the amount to be paid to the 

employees. Further illustrating the relationship between PPIN, PSL, and 

PPI Tech, the CSA provided that PPIN and PSL would indemnify PPI Tech 

for all claims brought by PPIN’s or PSL’s employees for bodily injury or 

1 The record reflects that more than one corporate entity bearing the “Afren” name 

may have been involved in the drilling operations at issue in this case. The exact 

relationship of the various Afren companies is unclear. However, for purposes of this 

opinion, we need not distinguish them and thus use the name generically, as was done in 

the Johnson Agreement, described within.

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property damage. They would also indemnify PPI Tech for all claims of 

patent infringement for the use of equipment, tools, and methods of 

operations. Contractually, PPI Tech acted in relevant part as an employment 

agency for PPIN and PSL, staffing PPIN’s jobsite.

To fulfill its staffing obligations to PPIN and PSL, PPI Tech 

representative, John Arriaga, recruited Johnson to work on the drilling rig in 

Nigeria. Explaining that they run their “international guys” through a 

separate corporation, PPI Tech administrative assistant, Sandra Berkline,

had Johnson sign a Consulting Agreement (Johnson Agreement) with PSL. 

Later, with PSL’s consent, Johnson substituted his wholly-owned company, 

Global Oil Consulting, LLC (Global Oil), as the party contracting with PSL on 

his behalf. The Johnson Agreement describes the arrangement as follows:

WHEREAS, [Johnson/Global Oil] is engaged in 

an independent business related to services to be 

performed on behalf of [PSL]; and

WHEREAS, [PSL] is engaged in a third-party 

international onshore and offshore development 

project in West Africa (“Project”) performing services 

for its customer (“Client”); and

WHEREAS, the parties desire to enter into a 

service relationship to be governed by the terms and 

conditions set forth herein;

NOW THEREFORE, in consideration of the 

mutual promises set forth herein, the sufficiency of 

which is hereby acknowledged, the parties agree as 

follows:

1. Services.

Commencing on the Effective Date, [Johnson/

Global Oil] agrees to perform the usual and general 

services customary in the oil and gas industry of Well 

Site Supervisor on an international project team, on 

behalf of [PSL], and to perform work as directed from 

time to time by [PSL] and its Client. Your services

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have been contracted to Afren. You will get your 

instructions, duty charges, job responsibilities, etc. 

from Afren. You will be expected to adhere to Afren 

rules and regulations at all times during periods of 

compensation, i.e. from the time you board the plane 

to come to Nigeria until you disembark from the 

plane in your home country.

PSL agreed to pay Johnson a daily rate, reimburse out of pocket expenses, 

and provide medical coverage. According to the Johnson Agreement, the 

parties agreed that Johnson was an independent contractor and not a PSL 

employee and that he had sole control over the manner and means of 

performance under the Agreement. 

A number of the facts to which Johnson testified are entirely consistent 

with viewing PPI Tech as an employment recruiter and administrator 

according to the respective terms of the CSA and Johnson Agreement. After 

Arriaga2 recruited him for the PSL/Afren position, Birkline coordinated all 

administrative matters, such as his travel to and from Nigeria, and his 

insurance claims following the injury. PPI Tech handled the logistics of 

documenting Johnson’s time and getting him paid through PSL. PPI Tech 

also supplied Johnson with a PPI Tech email account for his use while on the 

job in Nigeria. After Johnson’s injury, Scott Kirklin, general counsel for PPI 

Tech, assured Johnson that the medical insurance procured by PSL would be 

required to pay for his treatment.

However, Johnson also testified that three apparent PPI Tech

employees, Ron Thomas, Galan Williams, and Jack Rankin, interacted with 

and supervised him while on the rig on a daily basis. They used PPI Tech 

email accounts and had signature lines indicating that they were officers of 

2 Arriaga’s email signature lists him as Project Coordinator, PPI Technology 

Services, with “713” area code phone numbers and a “ppitech.net” email address. 

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PPI Tech. In particular, Thomas was represented to be an engineer, a cofounder of PPI Tech, and its President, working out of the Houston, Texas 

PPI Tech office. Williams was represented as Vice-President for Contracts 

Administration for PPI Tech, working out of the Houston, Texas office. And 

Rankin’s email signature listed him as “Afren Energy Ebok Development 

Project PPI Technology Services.”

PPI Tech does not dispute that Thomas, Williams, and Rankin 

supervised Johnson, but it claims that they did not do so in any PPI Tech

capacity. Instead, Thomas, a member of the PPIN Board of Directors,

testified that he was a drilling advisor supplied by PPIN to Afren, and was 

paid by CIMA Management. He also testified that Williams and Rankin 

were project managers supplied by PPIN to Afren, with duties governed by a 

contract between PPIN and Afren. Williams testified that he was a 

consultant supplied by PSL to PPIN. He charged PSL for his services, PSL 

charged PPIN, and PPIN charged Afren. While these men held offices in PPI 

Tech, their supervision of Johnson was not related to the business of PPI 

Tech, which functioned as an employment agency with administrative duties, 

but was for PPIN and Afren, which functioned as drilling operators.

Ultimately, Johnson’s duties, along with those of Thomas, Williams and 

Rankin, were controlled by a well plan belonging to Afren. In that respect, 

PPIN had secured their services for Afren’s project. According to Kent 

Schwarz, the managing director for PPIN, PPI Tech had no presence or 

employees in Nigeria or on the HIGH ISLAND VII. PPI Tech did not direct 

or control any of the drilling operations. Johnson’s position, generally 

referred to as “company man,” was the highest ranking worker on the rig, 

representing Afren.

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C. Discussion

The Jones Act confers upon a seaman the right to sue his employer for 

negligence resulting in personal injury. 46 U.S.C. § 30104. According to his 

contract, Johnson (through Global Oil) was employed by PSL to work for 

Afren. To sustain Johnson’s argument that he was PPI Tech’s employee 

despite his nominal, contractual relationships, he must be able to 

demonstrate that he was a borrowed servant of PPI Tech. “An injured 

worker may show that he was a borrowed servant at the time of his injury by 

establishing that the employer against whom recovery is sought ‘had the 

power to control and direct the (servant) in the performance of (his) work.’” 

Baker v. Raymond Int’l, Inc., 656 F.2d 173, 178 (5th Cir. 1981) (citing Gaudet 

v. Exxon Corp., 562 F.2d 351, 355 (5th Cir. 1977)).

District courts decide the borrowed employee issue as a matter of law if 

sufficient factual issues are undisputed. Capps v. N.L. Baroid-NL Indus., 

Inc., 784 F.2d 615, 617 (5th Cir. 1986). “We will not insist upon expense and 

delay of a trial if the overall issue can be resolved through a preponderance of 

other factual matters not in dispute.” Gaudet, 562 F.2d at 358. The following 

nine factors, commonly referred to as the Ruiz factors, are used to determine 

when an employer has borrowed a servant:

1. Who has control over the employee and the work they are 

performing, beyond mere suggestion of details or cooperation?

2. Whose work is being performed?

3. Was there an agreement, understanding, or meeting of the 

minds between the original and the borrowing employer?

4. Did the employee acquiesce in the new work situation?

5. Did the original employer terminate his relationship with the 

employee?

6. Who furnished tools and place for performance?

7. Was the new employment over a considerable length of time?

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8. Who had the right to discharge the employee?

9. Who had the obligation to pay the employee?

Id. at 355 (citing Ruiz v. Shell Oil Co., 413 F.2d 310, 312-13 (5th Cir. 1969)). 

No single factor is determinative and we look to the “venture as a whole.” See 

Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 795 (1949). 

The district court held that all but one of the Ruiz factors—the right to 

terminate the employment relationship (factor 8)—weighed against a finding 

that Johnson was PPI Tech’s borrowed servant. Johnson only contests the

district court’s conclusions pertaining to three additional factors (factors 1, 2, 

and 3), discussed below. He argues that those four factors, together,

dominate the determination under Ruiz and defeat PPI’s requested summary 

judgment and, at least, entitle him to a jury determination of the issue.

Factor 1: Control. Thomas, Williams, and Rankin clearly controlled 

Johnson and his work. The question is whether they did so in their capacity 

as officers of PPI Tech or as consultants procured by PPIN to work for Afren. 

The Johnson Agreement provided that Johnson was employed by PSL to 

work for Afren. The supervision imposed by Thomas, Williams, and Rankin 

was related to Afren drilling operations. Afren had no relationship with PPI 

Tech and relied only on PPIN to supply professional manpower such as that 

offered by Johnson. All of these facts militate against a finding that PPI Tech 

was in control.

The only evidence to the contrary is Johnson’s subjective belief that his 

supervisors were supervising on behalf of PPI Tech because they had some 

association with PPI Tech. Johnson’s confusion, resulting from a complex

business structure involving multiple corporate entities in international 

operations, is insufficient to create a fact issue for the jury to decide. Baker, 

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656 F.2d at 173 (reversing a jury finding in favor of the employee under 

substantially similar facts). 

PPI Tech was not in the business of oil and gas drilling. Instead, it was 

in the business of recruiting employees and handling administrative tasks 

associated with those hires. Johnson was not employed to recruit others or to 

act as an administrative assistant. The district court found that the facts 

here do not support a finding that PPI Tech had control over Johnson and the 

work he was performing. We agree.

Factor 2: Whose Work. As already discussed, Johnson was performing 

Afren’s work on the HIGH ISLAND VII, as Afren owned the rights to the 

minerals it sought to extract from the seabed and Johnson was the company 

man on the rig. The Johnson Agreement expressly provided that Johnson 

was hired to do work for Afren, subject to Afren’s “instructions, duty charges, 

job responsibilities . . . rules and regulations.” Johnson does not dispute this, 

but suggests that some portion of the overall mission was parceled out to PPI

Tech, which he performed.

But PPI Tech was not given a portion of the drilling operation to 

perform. Instead, PPIN gave it the task of finding the people who could do 

Afren’s work on Afren’s terms. PPIN’s Kent Schwarz testified clearly and 

definitively that PPI Tech had no business, presence, or employees on the rig. 

To find that Johnson was performing PPI Tech’s work would require Johnson 

to be an employment agency administrator rather than a company man on a 

drilling rig. Consequently, we agree with the district court’s determination 

that this factor weighs against a finding that Johnson was PPI Tech’s 

employee.

Factor 3: Meeting of the Minds. The question is whether there was an 

agreement, understanding, or meeting of the minds between the original or 

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nominal employer and the borrowing employer as to the status of the 

employee. Johnson’s argument focuses on PPIN’s relationship with PPI

Tech. That relationship, defined by the CSA and including PSL, established 

a meeting of the minds that PPI Tech would recruit workers for PPIN to 

furnish to Afren. Nothing about the arrangements between them indicated 

an agreement that Johnson would work for PPI Tech rather than for PPIN, 

Afren, or PSL. Johnson’s argument is unsupported by evidence and we agree 

with the district court that this factor weighs against a finding that Johnson 

was PPI Tech’s employee.

Factor 8: Right to Discharge. The district court found only one factor, 

the right to discharge, slightly favored Johnson’s claim. PPI Tech disputes 

this finding as inconsistent with the evidence showing that any decision 

regarding Johnson’s supervision would be made pursuant to the powers 

retained by PPIN and Afren over the drilling operations. The district court 

acknowledged this aspect of control, but viewed the evidence in favor of 

Johnson as the non-movant in the summary judgment procedure. 

The district court credited testimony that Randy Sullivan, the Chief 

Executive Officer of PPI Tech, as well as a PPI Tech Country Manager, had 

the power to discharge Johnson. Additionally, the district court noted that, 

as a practical matter, any directive to discharge Johnson coming from PPIN 

or Afren would likely have to be administered through PPI Tech employees. 

We decline to disturb the district court’s finding on this factor. We further 

concur with the district court’s assessment that the factor has only slight 

weight when balancing the issues governing the determination of a borrowing 

employer. 

Totality of the Circumstances. Johnson did not contest the district 

court’s findings as to the remaining five Ruiz factors. The trial court held 

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that those factors supported a conclusion that PPI Tech was not Johnson’s 

borrowing employer and we agree: (1) Johnson acquiesced in working for 

PSL, PPIN, and Afren, although it likely went unnoticed that he was not 

working for PPI Tech due to the complexity of the business structure; (2) PSL 

did not terminate its relationship with Johnson during the employment 

arrangement; (3) PPI Tech did not furnish tools and a place for performance

and was contractually absolved of responsibility therefor; (4) there was no 

“new employment” to consider; and (5) PSL had the continuing obligation to 

pay Johnson through Global Oil.

In reviewing the evidence as a whole, and considering this Court’s 

holding in Baker and the nine Ruiz factors, we hold that PPI Tech was not 

Johnson’s borrowing employer as a matter of law. Johnson’s subjective belief 

and his supervisors’ nominal positions with PPI Tech are insufficient to show 

that genuine disputes exist over enough determinative facts to preclude 

summary judgment.

III.

MOTION FOR LEAVE TO AMEND

In response to PPI Tech’s summary judgment motion, Johnson sought 

leave to amend his complaint in order to name PPIN as a defendant. 

Johnson argues that the district court abused its discretion because Rule 15 

provides for the “liberal amendment” of pleadings. While the district court 

did not squarely address Johnson’s request, the entry of the district court’s 

order dismissing Johnson’s claims should be construed as an implicit denial 

of any outstanding motion for leave to amend. Stokes v. Dolgencorp, Inc., 367 

F. App’x 545, 549 (5th Cir. 2010) (citing Tollett v. City of Kemah, 285 F.3d 

357, 369 n.* (5th Cir. 2002)). 

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A district court’s determination of whether to allow a party to amend 

his pleadings is ordinarily reviewed under the abuse of discretion standard. 

Wilson v. Bruks-Klockner, Inc., 602 F.3d 363, 368 (5th Cir. 2010). Pursuant 

to Fed. R. Civ. P. 15(a), leave to amend “shall be freely given when justice so 

requires.” Leave to amend may be denied for undue delay, bad faith, or 

dilatory motive and when the amendment would be futile—for instance when 

the amended claim would not survive a Fed. R. Civ. P. 12(b)(6) review. 

Foman v. Davis, 371 U.S. 178, 182 (1962); Stripling v. Jordan Prod. Co., LLC, 

234 F.3d 863, 872-73 (5th Cir. 2000). When leave to amend is refused on the 

sole basis that the amendment would be futile, review is de novo. Wilson, 

602 F.3d at 368. 

We find that Johnson has not demonstrated that the district court 

abused its discretion. The district court’s May 24, 2013 scheduling order was

entered over 18 months into the litigation and over 6 months prior to 

Johnson’s motion. It prohibited any additional amendments to pleadings. It 

was within the district court’s discretion to control its docket in this way. So 

while Johnson complains that the case was not set for trial at the time of his 

request, that argument disregards the additional delay attendant to joining a 

new party and protecting that new party’s due process rights in the litigation. 

See generally, Acevedo v. Allsup's Convenience Stores, Inc., 600 F.3d 516, 521 

(5th Cir. 2010) (district courts have the discretion to refuse joinder in the 

interest of avoiding prejudice and delay, ensuring judicial economy, or 

safeguarding principles of fundamental fairness). Johnson’s remaining 

arguments regarding delay and prejudice reveal only a failed trial strategy 

that does not define the limits of discretionary docket management.

Additionally, PPI Tech argues that any amendment would have been 

futile as a matter of law and it thus would have been an abuse of discretion to 

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grant the request. In particular, PPI Tech recites, and Johnson does not 

dispute, that a three-year statute of limitations period applies. Johnson, 

however, argues that his claim against PPIN would have related back to the 

original filing of this case against PPI Tech. “Although the district court did 

not address futility in its order, we may affirm for any reason supported by 

the record, even if not relied on by the district court.” United States v. 

Gonzalez, 592 F.3d 675, 681 (5th Cir. 2009) (citing LLEH, Inc. v. Wichita 

Cnty., Tex., 289 F.3d 358, 364 (5th Cir. 2002)). This Court reviews the futility 

argument de novo. 

Whether an amended complaint relates back to an original complaint

against a new defendant for statute of limitation purposes is governed by 

Fed. R. Civ. P. 15(c), which has been described as requiring the moving party

to satisfy the following elements:

(1) [The claim] must arise from the same transaction 

or occurrence as the original pleading . . . and (2) . . . 

the party named in the amended pleading must have 

both received sufficient notice of the pendency of the 

action so as not to be prejudiced in preparing a 

defense, and have known or should have known that 

but for a mistake of identity the party would have 

been named in the original pleading.

Sanders-Burns v. City of Plano, 594 F.3d 366, 373 (5th Cir. 2010) (citation 

omitted).

Johnson’s claims against PPIN clearly arose out of the incident set 

forth in the original complaint. But he did not demonstrate that his failure to 

sue PPIN was a matter of mistake.

The classic example of mistake is misnomer; that is, 

when a plaintiff misnames or misidentifies a party in 

its pleadings but correctly serves that party. In these 

cases, relation back is appropriate because the 

defendant is already before the court . . . . In some 

cases a legal mistake can lead to misnomer, as when 

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a plaintiff names an institutional defendant because 

of confusion as to whether an individual or an 

institutional defendant is the proper party, but the 

individual is properly served and, therefore, has 

notice of the mistake. In contrast, a conscious choice 

to sue one party and not another does not constitute a 

mistake and is not a basis for relation back.

Id. (emphasis added and citation omitted). Johnson has not claimed any 

mistake on his part concerning the identity of the proper party. Instead, his 

arguments acknowledge that he had timely access to the identities of all 

entities involved in the drilling venture and even included them in his 

discovery efforts. Because Johnson has not demonstrated mistake, the Court 

need not consider whether PPIN knew or should have known that, but for the 

mistake, the litigation would have been filed against it.

The district court did not err in failing or refusing to permit Johnson to 

amend his pleading to assert his claims against PPIN. 

CONCLUSION

The district court’s summary judgment is in all respects therefore,

AFFIRMED.

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