IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20228

JACQUELINE RIOS, Individually and as Personal Representative of the 

Estate of Russell Rios, 

 Plaintiff - Appellant

v.

CITY OF CONROE, TEXAS, 

 Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:13-CV-3457

Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Jacqueline Rios (“Rios”) appeals the district court’s 

denial of her motion for leave to file a Third Amended Complaint, arguing that 

the district court abused its discretion under Fed. R. Civ. P. 16(b). We conclude 

the district court did not abuse its discretion and therefore affirm.

 

* 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

December 29, 2016

Lyle W. Cayce

Clerk

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Background1

On July 31, 2013, Rios’s 19-year-old son, Russell Rios, was allegedly 

spotted shoplifting by Wal-Mart employees, who then followed him out of the 

store. Defendant Jason Blackwelder, an off-duty police officer with the City of 

Conroe Police Department, was in the parking lot with his wife. Rios alleges 

that despite being told by a Wal-Mart employee that his help was not required, 

Blackwelder chased down her son and shot him dead. Blackwelder was initially 

placed on administrative leave, but he was eventually convicted of 

manslaughter on June 11, 2014, at which point the City of Conroe terminated 

his employment and his law enforcement license was revoked.

Rios filed this lawsuit against Blackwelder on November 21, 2013, 

represented by attorneys David Bernsen and Christine Stetson. Attorney 

Clement Aldridge, Jr. was added as an additional attorney on December 5, 

2013. Rios filed her First Amended Complaint on February 10, 2014.

On February 24, 2014, the district court entered a Docket Control Order, 

establishing a deadline for amendment to pleadings of July 1, 2014, which it 

soon extended sua sponte to July 31, 2014. On July 23, 2014, before the 

deadline had passed, Rios filed an unopposed motion to extend the pleading

amendment deadline to September 30, 2014, which the court granted. The 

court granted a second extension of the pleading amendment deadline, on joint 

motion filed before the September 30 deadline passed, to December 1, 2014. It 

also extended the deadline for joinder of parties to October 31, 2014.

Rios filed her Second Amended Complaint on October 30, one day before 

the deadline for joinder of new parties. For the first time she added the City of 

Conroe (the “City,” also the appellee here) as a defendant, alleging that the 

 

1 The facts in this section come from the district court’s memorandum and order on 

Rios’s motion for leave to file a Third Amended Complaint, Rios v. Blackwelder, No. H-13-

3457 (S.D. Tex. Dec. 1, 2015) (“First District Court Order”).

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City had a policy of requiring its officers to apprehend misdemeanor theft 

suspects through any means necessary, including deadly force, and that the 

City ratified Blackwelder’s conduct by failing to properly discipline him.

On February 19, 2015, in connection with a discovery hearing, the 

district court issued an Amended Docket Control Order, setting April 13, 2015 

as the new pleading amendment deadline. Rios filed no further amendment 

before that deadline. In fact, no further filings were made in the case from 

February until late June of 2015, more than two months past the pleading 

amendment deadline. On June 30, 2015, Rios’s three attorneys, Bernsen, 

Stetson, and Aldridge, all moved to withdraw as her counsel. They told the 

court that a “Mr. McCotter” would soon make an appearance as counsel. The 

court granted the motion on July 17, 2015, but “Mr. McCotter” never appeared.

Instead, on July 31, 2015, attorney Patrick D. Hagerty filed a motion to 

appear pro hac vice, which the court conditionally granted on August 3, 2015, 

requiring him to apply for admission to the Southern District of Texas. Hagerty 

orally moved to withdraw that same day, but the district court denied the order 

and instead entered an amended scheduling order to accommodate his recent 

appearance. The court extended several deadlines but did not extend the 

pleading amendment deadline, which had expired on April 13, 2015. Because 

Hagerty failed to apply for admission to the Southern District of Texas, the 

district court ordered him removed from the case on August 31, 2015, leaving 

Rios in pro se status. In that order, the court expressly noted that the deadlines 

in the amended scheduling order “remain in effect and will not be extended.”

That same day, attorney Paul Gertz, Rios’s current attorney, entered his 

first appearance as her counsel of record—her fifth to date, and the second to 

be added after the expiration of the April 13, 2015 pleading amendment 

deadline, a deadline which had previously been extended multiple times. On 

September 2, 2015, Rios filed a motion for an amended scheduling order, 

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seeking a six-month extension of the deadlines in the August 3, 2015 

scheduling order. The August 3 scheduling order had not extended the 

pleading amendment deadline, and Rios did not seek an extension of the 

pleading amendment deadline at that time. The district court, noting that it 

had already stated that the August 3, 2015 amended scheduling order 

deadlines would not be extended, refused to give the six-month extension 

requested by Rios. Instead, it extended the applicable deadlines (excluding the 

pleading amendment deadline) by approximately three months, reiterating in 

heavily emphasized text that it would not permit any further extensions.

Motion for Leave to Amend and District Court Order2

On October 30, 2015, Rios filed a motion for leave to file a Third Amended 

Complaint. In that motion, which was filed more than six months after the 

April 13, 2015 pleading amendment deadline, she requested leave to amend 

her complaint because her new counsel, Gertz, did not believe the claim 

asserted against the City in the Second Amended Complaint was supported by 

the facts, but there might be a viable claim against the City for failure to train 

its officers concerning proper off-duty conduct.

The district court denied leave to amend. It noted that Fed. R. Civ. P. 

16(b)(4) provides the standard for requests to amend pleadings after a 

scheduling order’s deadline has expired. Specifically, Rule 16(b)(4) provides 

that “[a] schedule may be modified only for good cause and with the judge's 

consent.” The district court looked to Fifth Circuit law, under which “[t]he four 

factors relevant to good cause are: (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 

 

2 The facts in this section also come from the First District Court Order.

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to cure such prejudice.”3 The district court found that Rios failed to satisfy any 

of the four factors.

First, the district court found that Rios’s explanation for the delay in 

seeking to amend her pleading was inadequate because she failed to explain 

why none of her four previous attorneys had noticed this new theory of liability

or attempted to assert it prior to the April 13, 2015 deadline. (We note that one 

of those four, Hagerty, only entered an appearance in this case after the 

deadline had already passed, but the general point stands.) Rios argued that 

her previous attorneys did not even take depositions, but she failed to explain 

why they waited so long to do so, and she had access to other discovery that 

would have allowed her to assert the failure-to-train theory earlier.

In fact, Rios argued that her four previous attorneys had simply failed to 

recognize the failure-to-train theory. The district court reasoned that “[m]ere 

inadvertence is insufficient to constitute good cause under Rule 16,” even if 

that inadvertence is “coupled with [] lack of prejudice to the non-movant.”4 Put 

simply, the district court was not convinced that Rios’s previous attorneys had 

any excuse for failing to move to amend prior to the April 13, 2015 deadline.

Next, the district court rejected Rios’s argument that the proposed 

amendment was important because otherwise the claim asserted against the 

City in the Second Amended Complaint would be dismissed for failure of proof.

The district court noted that the new failure-to-train claim faced its own 

challenges because a “pattern of similar constitutional violations by untrained 

employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for 

 

3 E.E.O.C. v. Serv. Temps Inc., 679 F.3d 323, 334 (5th Cir. 2012) (internal quotation 

marks removed) (quoting Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir.

2008)).

4 First District Court Order at 8-9 (citing Klein v. Fed. Ins. Co., No. 7:03-CV-102-D, 

2014 WL 239652 (N.D. Tex. Jan. 22, 2014), and Manley v. Invesco, No. CIV.A. H-11-2408, 

2012 WL 2994402 (S.D. Tex. July 20, 2012)).

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purposes of failure to train.”5 The district court also noted that whether or not 

Rios has a viable claim against the City cannot affect her right to pursue the 

individual directly responsible for her son’s death, Blackwelder, who would 

remain in the suit no matter what. In other words, the court reasoned that 

because Rios would be able to pursue Blackwelder, the amendment changing 

her theory of municipal liability against the City, a lesser defendant, was not 

very important, particularly because the district court found it to lack merit.

Third, the court found that allowing the amendment would prejudice the 

City, in that allowing the totally new claim would require additional discovery 

on that claim, adding substantial time and expense. Fourth and finally, the 

district court found that any prejudice could not be cured with a continuance 

because the case had already been pending for more than two years, and, as 

just explained, allowing Rios to assert the new failure-to-train claim would 

only add time and expense.

Because the district court concluded that Rios had failed to satisfy any 

of the four elements of good faith, it declined to allow leave to file the Third 

Amended Complaint:

[T]his case has been pending for more than two years, and the 

Court is not inclined to extend the remaining deadlines in this case 

yet again. Instead, the Court exercises its discretion to preserve 

the integrity and purpose of an established Docket Control Order, 

particularly deadlines that have already been extended 

repeatedly. The Court has twice advised counsel clearly and 

unequivocally that no further extensions would be permitted. The 

Court exercises its discretion to enforce that admonition.6

 

5 Id. at 10 (quoting Kitchen v. Dallas Cnty., 759 F.3d 468, 485 (5th Cir. 2014)). 6 Id. at 11-12.

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Motion for Reconsideration and District Court Order7

Thereafter, Rios filed a motion to reconsider. She argued more fully that 

she had presented good cause to amend. The City filed a motion for summary 

judgment seeking dismissal of the claim against it under the Second Amended 

Complaint. The district court began by denying Rios’s motion to reconsider.

First, the district court explained that Rios was relying primarily on 

three Fifth Circuit cases from 1981 or earlier, as well as a 2010 Fifth Circuit 

case affirming the district court’s exercise of its discretion to allow a late 

amendment.8 (Because the abuse of discretion standard is highly deferential, 

a decision affirming a district court’s decision to allow an amendment does not 

necessarily mean that a court would not have affirmed a decision to deny an 

amendment on the same facts.) The district court correctly observed that this 

case is governed by Rule 16 and relevant case law, and the court is afforded 

broad discretion.

In her motion for reconsideration, Rios presented a more complete story 

concerning her previous attorneys’ failure to file an amendment to help show 

good cause in her delay. She claimed the City delayed in responding to her 

discovery until well after Blackwelder was convicted, which in turn delayed 

her previous attorneys from reviewing the documents in time. In particular, 

she claimed that her attorneys received approximately 2,600 pages of discovery 

documents on March 30, 2015, approximately two weeks prior to the April 13, 

2015 pleading amendment deadline. She claimed it would have taken her 

attorneys at least one month to review the documents and schedule 

appropriate depositions, and that at any rate her relationship with her first 

 

7 See generally the district court’s memorandum and order on Rios’s motion for 

reconsideration and the City’s motion for summary judgment, Rios v. Blackwelder, No. H-13-

3457 (S.D. Tex. Feb. 1, 2016) (“Second District Court Order”).

8 Second District Court Order at 9-10.

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three attorneys deteriorated during May and June of 2015, culminating in 

their withdrawal from the case.

Eventually her fifth and current attorney, Gertz, joined the case, and he 

filed the motion to amend “within days of realizing that the evidence did not 

support the claims in the Second Amended Complaint.”9 Although the district 

court recognized that Rios’s current attorney, Gertz, “has acted promptly and 

in good faith,”10 the district court rested firm on its finding that Rios had failed 

to show good reason for her previous attorneys’ failure to file a more timely 

motion for leave to amend. By the time Gertz joined the case, the pleading 

amendment deadline had long passed, and the district court had indicated 

multiple times that it would not extend deadlines any further.

Rios also argued that the amendment was important because her 

proposed failure-to-train claim did have merit, based on a footnote in City of 

Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 1205, 103 L. Ed. 2d 412 (1989). 

There, the Supreme Court hypothesized that even in the absence of a pattern 

of constitutional violations, a single instance might trigger municipal liability 

under a failure-to-train theory if the municipality knew “to a moral certainty” 

that a constitutionally risky situation would occur but still failed to train 

officers regarding “the constitutional limitations on the use of deadly force.”11

The district court rejected that argument because it found that “[n]o such 

situation is presented in Plaintiff’s proposed Third Amended Complaint, and 

it seems quite unlikely that she would be able to prevail on the ‘single-incident’ 

theory to support her failure-to-train claim against the City of Conroe.”12

 

9 Id. at 9.

10 Id. at 9 n.2.

11 489 U.S. at 390 n.10.

12 Second District Court Order at 11.

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Rios also argued that the district court “overstated” the prejudice to the 

City in the event it allowed her to file the Third Amended Complaint. The court 

rejected that argument on the ground that the City had already spent more 

than $13,000 in fees defending the case and would have to spend still more 

defending the new failure-to-train claim. Finally, the court noted that Rios is

not entitled to reconsideration of its order denying leave to amend merely 

because she thought Blackwelder could not satisfy a judgment against him, 

particularly when Rios failed to present evidence supporting that assertion.

Because the district court found Rios did not have good cause for seeking 

leave to amend so long past the April 13, 2015 pleading amendment deadline, 

it denied her motion for reconsideration. It also granted the City’s motion for 

summary judgment, dismissing Rios’s claim against the City under the Second 

Amended Complaint with prejudice.

Analysis

Rios timely filed a notice of appeal, arguing that the district court abused 

its discretion under Rule 16(b)(4) in denying leave to amend. She presents 

essentially the same facts and arguments she presented to the district court in 

her motion for leave and motion for reconsideration, particularly emphasizing 

her previous attorneys’ failure to state a viable claim prior to the pleading 

amendment deadline on April 13, 2015. As noted above, the district court’s 

denial of a pleading amendment past the deadline under Rule 16(b)(4) is 

subject to a very deferential standard of review, and we must remain mindful 

of the district court’s “broad discretion to preserve the integrity and purpose of 

the pretrial order.”13 We cannot say the district court abused its discretion on 

these facts.

 

13 S & W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 535 (5th 

Cir.2003) (internal quotation marks and citation omitted).

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We have reviewed the record in this case, and we find the district court’s 

summary of the procedural history and facts to be accurate. Rios filed her 

motion for leave to amend months after the pleading amendment deadline had 

passed, and after the district court had repeatedly emphasized that it would 

not extend deadlines further. The district court explained in detail in both of 

its orders why it found that Rios had failed to show good cause for the late 

motion for leave to amend, and we will not disturb those findings on appeal.

The crux of Rios’s explanation for her previous attorneys’ failure to 

amend her complaint prior to the deadline is that they did not have time to do

so. Rios claims her counsel received the City’s delayed discovery responses on 

March 30, 2015, shortly before the April 13, 2015, pleading deadline, and it 

would have taken at least one month to review them. At that time, Rios had 

three attorneys of record. Those attorneys, exercising reasonable diligence, 

certainly should have been able to review approximately 2,600 pages of 

discovery materials in approximately two weeks and determine whether they 

offered a new theory of liability against the City, which would have allowed 

time to amend the complaint as of right. Moreover, if her attorneys truly did 

not have the time to review the new discovery documents, for whatever reason, 

prior to the pleading amendment deadline, they could have requested an 

extension of the deadline before it passed. They failed to do that.

Finally, her attorneys at the time did not even seek leave to amend the 

complaint after the deadline passed. Even allowing for the fact that her

relationship with her attorneys deteriorated in May and June of 2015 (after 

the pleading amendment deadline had already passed), they should have 

already known whether the evidence supported a new theory of the case, 

having had more than one month to review the new documents.

Simply put, Rios’s attorneys had plenty of time to review the documents, 

either before or soon after the pleading amendment deadline passed, but they 

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failed to do anything, and the district court did not abuse its discretion by 

failing to find that explanation adequate. Similarly, the district court did not 

abuse its discretion in rejecting Rios’s argument that her attorneys 

inadvertently overlooked the possible basis for a failure-to-train claim. We 

reach the same conclusion on the other good faith factors. Rios has not 

presented any evidence that the district court abused its discretion when it 

found: (a) the amendment would prejudice the City in the form of additional 

discovery expenses, attorney’s fees, and time, and (b) that prejudice could not 

be cured by a continuance.

Finally, Rios argues that the amendment is important because she could, 

in fact, prevail on her failure-to-train theory. Although we note that the district 

court’s reasoning here appears sound, we decline to reach this question because 

it is clear it was not the district court’s primary basis for denying leave to 

amend. Instead, the district court emphasized that the case had gone on for 

approximately two years, the parties had already received multiple extensions, 

and the court had repeatedly stated that no further extensions would be 

granted. Indeed, the court seemingly suggested that the denial was warranted

even if there might be some merit to the proposed failure-to-train claim:

Notwithstanding whether the proposed amendment has potential 

merit, the Court notes that the case is pending against Defendant 

Blackwelder also, and the claims against him are not dependent 

on any municipal liability claim against the City of Conroe. 

Plaintiff will, if appropriate, have her “day in court” on her claims 

against Blackwelder—the individual who shot and killed her son—

regardless of whether the City of Conroe is a defendant at the time 

of trial.14

In sum, the district court found that Rios failed to meet a single factor 

demonstrating good cause in failing to file a motion to amend, and it seemed 

 

14 First District Court Order at 10.

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to place special emphasis on her inadequate explanation for the failure and the 

potential prejudice to the City. Rios has not pointed to anything that would 

permit us to conclude the district court abused its discretion under Rule 

16(b)(4) in denying the amendment of its own scheduling order, particularly 

where the court had long emphasized it would not grant further extensions.

Although we certainly sympathize with Rios and see some equities on her side, 

we conclude that we must, on these facts, afford the district court the “broad 

discretion to preserve the integrity and purpose of the pretrial order.”15

AFFIRMED.

 

15 S & W Enters., 315 F.3d at 535.

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