IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-20340

Summary Calendar

LINDA D. SAPP,

Plaintiff–Appellant,

v.

MEMORIAL HERMANN HEALTHCARE SYSTEM,

Defendant–Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:08-CV-3511

Before WIENER, PRADO, and OWEN, Circuit Judges.

PER CURIAM:

*

Linda Sapp is a former nurse within the Memorial Hermann Healthcare

System (Memorial System). Contemporaneously with that employment, Sapp

also pursued an advanced nursing degree through Texas Woman’s University

(TWU). TWU placed her in a practicum at a hospital in the Memorial System.

Sapp has filed two suits stemming from this employment and education. Sapp

first filed suit against the Memorial System alleging, inter alia, sexual, racial,

United States Court of Appeals

Fifth Circuit

F I L E D

December 29, 2010

Lyle W. Cayce

Clerk

 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.

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age-based, and religious discrimination (Sapp I). One manifestation of this

discrimination, she claimed, was the Memorial System’s not properly crediting

her for a proposal written during the time of her employment and practicum.

Sapp lost that suit, and did not appeal. In the instant case, Sapp again filed suit

against the Memorial System (Sapp II), alleging that its use of the

aforementioned proposal constitutes copyright infringement, unfair trade

practices, and unfair competition. The United States District Court for the

Southern District of Texas stayed discovery and granted summary judgment on

the basis of res judicata. We affirm.

I

The Memorial System is a network of healthcare facilities. Linda Sapp

worked as a nurse within the Memorial System, specifically at its Woodlands

Facility. During that time, she also sought a masters in nursing from TWU. As

part of her education, Sapp completed a practicum at a different facility within

the Memorial System. During that practicum, Sapp worked on a proposal for a

new system of career advancement at the facility, a so-called “career ladder”

system. The parties disagree regarding the percentage of the work on this

proposal done by Sapp and by her preceptor, Julie Segovia. That said, Sapp

contends that she has not been properly credited for this proposal.

As a result, Sapp filed suit against the Memorial System in Sapp I. There

Sapp claimed, inter alia, sexual, racial, age-based, and religious discrimination,

arguing that she had been insufficiently credited for the career ladder proposal.

The federal district court granted summary judgment in favor of the Memorial

System. Sapp did not appeal.

Instead, Sapp filed Sapp II—the instant suit. In this suit, Sapp alleges

that the Memorial System’s use of the career ladder proposal violates a copyright

she holds on the career ladder proposal and constitutes unfair trade practices

and unfair competition. The court’s scheduling order, dated March 10, 2009,

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required motions to amend the pleadings and add new parties be filed by May

1, 2009. Both parties moved for summary judgment. Then, on October 12, 2009,

Sapp filed for leave to amend her petition to add TWU and Heather Kopecky, a

nursing supervisor. The court denied the motion and Sapp’s motion for a

continuance pursuant to Rule 56(f). It then stayed discovery pending resolution

of the summary judgment motion. Finally, it granted the Memorial System’s

motion for summary judgment on the basis of res judicata. It determined, as a

result, that Sapp’s motion for summary judgment was rendered moot. Sapp now

appeals the denial of the motion to amend the complaint, the denial of a

continuance, the suspension of discovery, the grant of summary judgment, and

the denial of her motion for summary judgment.

II

We first address the denial of Sapp’s motion to amend the complaint. The

district court reaffirmed the denial in its final order, and we have jurisdiction to

review a final order pursuant to 28 U.S.C. § 1291. We review decisions of the

district courts with respect to amending scheduling orders for abuse of

discretion.

1

Sapp sought to amend her pleading after the period for amendments under

the scheduling order. She relies upon Foman v. Davis, a case addressing Federal

Rule of Civil Procedure 15(a). Yet the rule that is actually applicable here is

2

Rule 16(b). We have stated that Rule 16(b) governs amendment of pleadings

after a scheduling order deadline passes. After that deadline, the “more liberal

3

standard of Rule 15(a) appl[ies]” only if the movant demonstrates good cause for

Meaux Surface Prot., Inc. v. Fogleman, 607 F.3d 161, 167 (5th Cir. 2010).

1

 371 U.S. 178, 182 (1962).

2

S&W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir. 3

2003).

3

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the modification of the schedule. Here a scheduling order had previously been

4

entered. The motion to amend came after the expiration of the time provided in

the scheduling order. Thus, the relevant rule is Rule 16(b), which permits

modification “only for good cause and with the judge’s consent.”

5

In considering whether the district court abused its discretion, this court

has noted a four-factor test designed to guide the district court’s analysis: “(1)

the explanation for the failure to timely move for leave to amend; (2) the

importance of the amendment; (3) potential prejudice in allowing the

amendment; and (4) the availability of a continuance to cure such prejudice.” 

6

We have recently reaffirmed that owing to “‘the importance of the pre-trial order

in achieving efficacy and expeditiousness upon trial in the district court,

appellate courts are hesitant to interfere with the court’s discretion in creating,

enforcing, and modifying such orders.’” No single factor is dispositive, nor must

7

all the factors be present.

8

Here the lower court denied the motion for leave to file an amended

pleading, but did so “without prejudice to being reurged, if appropriate, following

a ruling on the pending motions for summary judgment.” The court also

observed that Sapp had filed her own motion for summary judgment,

presumably indicating the lack of importance to her of amending her claims.

Moreover, in denying the motion the lower court explicitly noted the Memorial

System’s pending res judicata summary judgment motion—indicating a concern

 Id. 4

 FED. R. CIV. P. 16(b). 5

Meaux Surface Prot., Inc., 607 F.3d at 167.

6

Id. (quoting Quick Techs., Inc. v. Sage Group P.L.C., 313 F.3d 338, 345 (5th Cir. 7

2002)).

S&W Enters., L.L.C., 315 F.3d at 536-37. 8

4

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with the prejudice and delay that allowing amendment could bring to a party

potentially on the verge of concluding its involvement in the litigation. In light

of the foregoing, denying this motion was not an abuse of discretion.

III

We review the court’s denial of Sapp’s Rule 56(f) motion—to suspend

summary judgment pending discovery—for abuse of discretion. Rule 56(f) has

9

been recodified “without substantial change” as Rule 56(d).

10

The rule allows for a delay in summary judgment to facilitate discovery

when the non-movant cannot adequately oppose summary judgment at that

time. A motion under the rule “must set forth a plausible basis for believing

11

that specified facts, susceptible of collection within a reasonable time frame,

probably exist and indicate how the emergent facts, if adduced, will influence the

outcome of the pending summary judgment motion.” Here Sapp argued that

12

she required more time for discovery, specifically seeking depositions of Rebecca

Krepper, a TWU dean, and Heather Kopecky, a faculty member at TWU who

wrote Sapp a commendation letter for her role in authoring the career ladder

proposal.

While it is true that these motions are “broadly favored and should be

liberally granted,” here summary judgment was to be based solely on res

13

judicata. As we have said, “[i]f it appears that further discovery will not provide

evidence creating a genuine issue of material fact, the district court may grant

Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010).

9

 FED. R. CIV. P. 56(d) 2010 amend. cmt. (2010). 10

Raby, 600 F.3d at 561.

11

Id. (citing C.B. Trucking, Inc. v. Waste Mgmt. Inc., 137 F.3d 41, 44 (1st Cir. 1998))

12

(internal quotation marks omitted).

Id. (citing Culwell v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006)) (internal

13

quotation marks omitted). 

5

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summary judgment.” The discovery Sapp purported to need was designed to

14

prove or disprove the merits of her claim by elucidating the manner in which the

proposal came into use. That, however, was not responsive to the pending

summary judgment motion—which turned on whether the issue had been

previously litigated in Sapp I. Thus, it was not an abuse of discretion to deny

the motion.

IV

We review a decision to stay discovery pending a dispositive motion for

abuse of discretion. The Memorial System requested that the court stay

15

discovery pending the outcome of the summary judgment motion and quash the

upcoming deposition of Kopecky. The court granted the motion. We have

previously held that where discovery would not be useful to the resolution of a

pending summary judgment motion presenting a question of law, it is not an

abuse of discretion to grant such a motion. The res judicata effect of a previous

16

judgment is, in fact, a question of law. As we have previously said, it would be

17

“wasteful to allow discovery on all issues raised in a broad complaint when, for

example, the case will not reach” a determination on those merits. As

18

discussed above, the discovery here went to the underlying merits and not to the

pending summary judgment question of res judicata. Therefore, it was not an

abuse of discretion to stay discovery.

Id. (citing Access Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d 694, 720 (5th Cir. 14

1999)) (internal quotation marks omitted).

Brazos Valley Coal. for Life, Inc. v. City of Bryan, Tex., 421 F.3d 314, 327 (5th Cir. 15

2005).

Id. 16

Oreck Direct, L.L.C. v. Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009).

17

Corwin v. Marney, Orton Invs., 843 F.2d 194, 200 (5th Cir. 1988).

18

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V

We review the grant of summary judgment de novo. Though the federal

19

rule pertaining to summary judgment has been amended in the period of

pendency for this appeal, the change does not affect the substance of the rule.

20

The rule permits the grant of summary judgment “if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Here the district court granted summary

21

judgment on the basis of res judicata. “Under res judicata, a final judgment on

the merits of an action precludes the parties or their privies from relitigating

issues that were or could have been raised in that action.” The res judicata

22

effect of a previous judgment is also reviewed de novo.

23

We have developed a four-part test, each prong of which must be met for

res judicata to bar an action:

(1) the parties must be identical in the two actions; (2) the prior

judgment must have been rendered by a court of competent

jurisdiction; (3) there must be a final judgment on the merits; and

(4) the same claim or cause of action must be involved in both cases.

24

There is no dispute with respect to factors two and three. The district court in

Sapp I had jurisdiction to issue a final summary judgment, and it did. With

respect to the first factor, despite arguments designed to cloud the issue, the

Oreck Direct, L.L.C., 560 F.3d at 401.

19

 FED. R. CIV. P. 56 2010 amend. cmt. (2010). 20

 FED. R. CIV. P. 56(a) (2010). 21

Allen v. McCurry, 449 U.S. 90, 95 (1980). 22

Oreck Direct, L.L.C., 560 F.3d at 401.

23

Id. (citing In re Ark-La-Tex Timber Co., 482 F.3d 319, 330 (5th Cir. 2007)) (internal

24

quotation marks omitted).

7

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Memorial System is the named defendant in both suits. Thus the parties are

identical.

In evaluating the fourth factor, the district court employed the so-called

“transactional test.” We have recently reaffirmed that the transactional test is

appropriate in considering whether suits involve the same claim or cause of

action. It considers whether the two suits involve “the same nucleus of

25

operative facts.” This inquiry focuses upon “whether the facts are related in

26

time, space, origin, or motivation; whether they form a convenient trial unit;

and whether their treatment as a unit conforms to the parties’ expectations or

business understanding or usage.”

27

Here Sapp’s two suits arise from a single nucleus of operative fact: Sapp

worked on a proposal, and believes that she was not properly rewarded for it.

In Sapp I, Sapp sought to gain her purportedly deserved rewards through one

legal avenue. Upon her loss in Sapp I, Sapp brought a second suit alleging an

alternative theory of recovery, but seeking the same rewards she could not

secure in Sapp I. As we have said, “a single cause of action or claim cannot be

‘split’ by advancing one part in an initial suit and attempting to reserve another

part for a later suit.” Therefore, res judicata bars Sapp II, and summary

28

judgment was properly granted.

Notably, because it was not an abuse of discretion to deny leave to amend,

Sapp’s argument that “[j]udicial [e]stoppel defeats [r]es [j]udicata if [the]

[m]otion to [a]mend is allowed” is unavailing. Similarly, Sapp argues to this

Id. at 402-03. 25

Id. at 402 (citations omitted).

26

Id. (citing Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 313 (5th Cir. 2004))

27

(internal quotation marks and brackets omitted).

Tex. Emp’rs’ Ins. Assoc. v. Jackson, 862 F.2d 491, 501 (5th Cir. 1988) (en banc).

28

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court that there is a continuing harm that cannot be settled by res judicata.

She does so without citation and without having raised the issue in the district

court. Both independently constitute waiver of an issue. Similarly, the single

29

sentence, lacking citation and sandwiched between otherwise unrelated

arguments, averring that Sapp could not bring her copyright claim in

conjunction with her Sapp I claims constitutes waiver.

30

As the district court properly granted summary judgment, Sapp’s motion

for summary judgment remains moot.

* * *

For the foregoing reasons, we AFFIRM the order of the district court.

L & A Contracting Co. v. S. Concrete Servs., Inc., 17 F.3d 106, 113 (5th Cir. 1994);

29

Little v. Liquid Air Corp., 37 F.3d 1069, 1071 n.1 (5th Cir. 1994) (en banc) (per curiam).

L & A Contracting Co., 17 F.3d at 113. 30

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