* 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opinion should not be published and is not precedent except under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 20, 1999

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-30876

Summary Calendar

 

LISA ALACK PETERS; MICHELLE WINTERSTEIN, 

Through her next friend, Lisa Alack Peters; 

JOSEPH WINTERSTEIN,

Plaintiffs-Appellants,

versus

CONNIE LOWRY, also known as Connie Lowery Pea, Juvenile Officer,

Tangipahoa Parish Sheriff's Office, Individually and in her

official capacity; J. EDWARD LAYRISSON, Sheriff, Tangipahoa Parish

Sheriff's Office, Individually and in his official capacity; CRAIG

ANDREWS, Office of Community Services Worker, Individually and in

his official capacity; DALE FRAZIER, Office of Community Services

Supervisor, Individually and in his official capacity; THOMAS HALL,

Office of Community Services Supervisor, Individually and in his

official capacity, UNIDENTIFIED PARTY,

Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 94-CV-2738

- - - - - - - - - -

January 20, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges

PER CURIAM:*

On August 19, 1994, the plaintiffs brought a suit under § 1983

and various state laws against the defendants arising from

allegations of violations of the plaintiffs’ civil rights during an

investigation of child abuse. The defendants filed a 12(b)(6)

motion which was granted in part and denied in part. In that
 

**The hearing on the summary judgment motions was delayed over one

year by an interlocutory appeal relating to discovery disputes.

2

order, dated September 7, 1995, the plaintiffs were instructed to

amend their complaint to provide further facts addressing the

officers’ liability; no deadline was provided. On February 8,

1996, a minute entry provided that all amended pleadings were to be

filed by March 22, 1996.

On June 11, 1996, the defendants filed motions for summary

judgment based on qualified immunity. On July 31, 1996, the

plaintiffs filed a motion to amend their complaint. On June 24,

1997, the district court granted the defendants’ motions for

summary judgment, dismissing all federal claims with prejudice and

all state claims without prejudice.** At the same time, the

district court denied plaintiffs’ motion to file the first amended

complaint because it was untimely and futile. The district court

explained that the plaintiffs’ motion to file the first amended

complaint “came eleven months after the court had ordered

amendment, four months after the deadline for amendments and a

month after the interlocutory appeal was filed (thus the inability

of the Court of Appeals to consider it).” Peters v. Lowery, No.

CA-94-2738, (E.D.La. July 21, 1997).

The plaintiffs argue that the district court abused it

discretion by denying their motion to amend their complaint. The

plaintiffs do not challenge the district court’s entry of summary

judgment for the defendants, but instead allege that if they had

been allowed to amend their complaint they could have advanced
3

specific facts against the defendants’ claim of qualified immunity

through additional discovery. Once a motion for summary judgment

has been filed, a nonmoving party may seek a continuance if he

believes that additional discovery is necessary to respond to the

motion. Fed.R.Civ.P. 56(f); King v. Dogan, 31 F.3d 344, 346 (5th

Cir. 1994). Yet, the plaintiffs never sought a continuance for

additional discovery and failed to show that discovery was

necessary to establish any issue of material fact that would

preclude summary judgment. 

As part of its discretion in determining whether to allow a

leave to amend, the trial court may consider such factors as undue

delay, bad faith or dilatory motive on the part of the movant,

repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party by virtue of

allowance of the amendment, and futility of the amendment. Wimm v.

Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993). In light of

the late date at which the plaintiffs moved to amend their

complaint and the fact that plaintiffs did not seek a continuance

for additional discovery after the defendants filed motions for

summary judgment, the district court’s denial of the plaintiffs’

motion to amend was not an abuse of discretion. 

AFFIRMED.