* 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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 01-11277

Summary Calendar

__________________________

DAVID J. TEMPLE,

Plaintiff-Appellant,

versus

AMERICAN AIRLINES, INC.,

Defendant-Appellee.

___________________________________________________

Appeal from the United States District Court

For the Northern District of Texas

(No. 99-CV-2289)

___________________________________________________

April 26, 2002

Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM*:

David Temple (“Temple”), a pilot hired by American Airlines,

Inc. (“American”), sued for damages after American terminated his

employment. Temple subsequently sought leave to amend his

complaint to assert fraud and negligent misrepresentation claims

against American in addition to his original claims. The

magistrate judge denied leave to amend the complaint on both claims

and granted American’s motion for summary judgment. 
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I. Facts and Proceedings

Temple was a pilot for American Eagle Airlines, Inc. who

applied for a position as a pilot with American. Temple learned

that American had a practice of allowing newly hired pilots with

enough seniority to train on the F-100 aircraft, a two engine

craft, as opposed to the 727, a three engine craft to which new

pilots were automatically assigned. Temple was missing several

fingers on his left hand and found American’s policy desirable as

the F-100 aircraft would be easier to manipulate given his

disability. According to Temple, it was this policy which caused

him to accept employment with American. Once Temple commenced

employment with American he was assigned to the F-100 aircraft.

However, a union dispute forced American to discontinue its policy

of assigning new hires to the F-100, and American re-assigned

Temple to the 727 aircraft.

As part of the training, Temple was required to take an oral

exam which he failed. When questioned, Temple explained that his

brother-in-law had become gravely ill. Temple requested leave to

attend to his family and was given the requested leave. Upon

return, Temple was allowed to take the exam a second time and

passed. Temple was also required to take a simulator check ride

which he also failed. After remedial training was given, the test

was administered again, but Temple was again unable to pass.

Temple’s brother-in-law subsequently died, and Temple requested

leave to attend the funeral which was granted. However, upon his
1 Temple did not oppose summary judgment as to the FMLA and

the ADA claims. The only claim before the court for summary

judgment is the promissory estoppel claim.

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return from leave, Temple was terminated for failure to meet

American’s performance standards. 

Temple initially filed suit under the FMLA, the ADA, as well

as alleging promissory estoppel. Temple subsequently sought leave

to amend the complaint to add claims of fraud and negligent

misrepresentation arising out of his hire with American. The

magistrate judge refused to allow an amendment to assert the

negligent misrepresentation claim as time barred and also held that

it was not subject to the relation back doctrine under Fed.R.Civ.P.

15. The magistrate judge did permit Temple to more adequately

plead the fraud claim but subsequently held that he failed to meet

the pleading requirements of Rule 9(b). The court then granted

American’s motion for summary judgment as to all of Temple’s

claims.1 Temple appealed both the grant of summary judgment and

the denial of leave to amend his complaint.

II. Discussion

After reviewing the record and relevant case law, we conclude

that the magistrate judge did not err in refusing to allow Temple

to amend his complaint nor in granting summary judgment to

American. 

 A. Leave to Amend
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1. Negligent Misrepresentation

A court’s decision to grant or deny leave to amend is reviewed

for abuse of discretion. See Fed.R.Civ.P. 15; Dole v. Fireworks,

889 F.2d 543, 547 (5th Cir. 1989). Temple’s misrepresentation claim

was time barred and did not relate back to the initial complaint.

The claim allegedly arose out of statements made prior to and

immediately after Temple’s hire by American. "An amendment of a

pleading relates back to the date of the original pleading when ...

the claim or defense asserted in the amended pleading arose out of

the conduct, transaction, or occurrence set forth or attempted to

be set forth in the original pleading." Fed.R.Civ.P. 15(c)(2). The

allegations in Temple’s original complaint relate to his

termination. The negligent misrepresentation claim arose before or

at the time Temple was hired. The district court did not abuse its

discretion in denying Temple’s motion for leave to amend. See

F.D.I.C. v. Conner, 20 F.3d 1376, 1385-86 (5th Cir. 1994); In Re

Costal Plains, Inc., 179 F.3d 197, 215-16 (5th Cir. 1999).

2. Fraud

The magistrate judge refused to grant Temple leave to amend

his complaint to add the fraud claim for failure to comply with the

requirements of Fed.R.Civ.P. 9(b). The court denied the motion

without prejudice, granting Temple another chance to sufficiently

plead the fraud claim. The magistrate judge concluded, after a

second attempt at pleading the fraud claim, that Temple failed to
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meet the particularity requirements of Rule 9(b). This circuit

requires a claim of fraud to include the time, place, and contents

of the alleged false statements in addition to the identity of

those who made the statements and the information obtained

therefrom. Williams v. WMX Technologies, Inc., 112 F.3d 175,177

(5th Cir. 1997). The magistrate judge did not abuse its discretion

in concluding that Temple failed to meet the pleading requirements

required by this circuit for fraud claims. There was no material

misrepresentation or false statements made by American

representatives. Temple was informed that he would be able to

train on the F-100 aircraft and began doing so. It was not until

after American hired Temple and allowed him to begin training on

the F-100, that circumstances changed precluding the possibility of

training on the F-100 due to union negotiations. Temple was aware

of the negotiations. A change in circumstance does not equate to

a material representation. See Hamilton v. Segue Software, Inc.,

232 F.3d 473, 480 (5th Cir. 2000).

B. Motion for Summary Judgment

The district court’s grant of summary judgment is reviewed de

novo. See Dorn v. Int’l Brotherhood of Elec. Workers, 211 F.3d

938, 946 (5th Cir. 2000). Reviewing the facts in a light most

favorable to Temple, we conclude that the magistrate judge did not

err in granting summary judgment. 

Temple argues that there was a material issue of fact with
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respect to the estoppel claim. Promissory estoppel has four

elements under Texas law: "(1) a promise, (2) foreseeability of

reliance thereon by the promisor, and (3) substantial reliance by

the promisee to his detriment .... [and (4) ] a definite finding

that injustice can be avoided only by the enforcement of the

promise." Zenor v. El Paso Healthcare System, Ltd., 176 F.3d

847,864 (5th Cir. 1999), citing Clardy Manufacturing Co. v. Marine

Midland Business Loans, Inc., 88 F.3d 347, 360 (5th Cir. 1996).

First and foremost in a claim of promissory estoppel, there must be

a promise. The magistrate judge concluded and American contends on

appeal that there was no promise. We agree. The fact that Temple

was allowed leave to attend to his family does not constitute a

promise that no adverse employment would be taken against him for

taking such leave. Temple indicated that, while he did not think

taking leave would result in his termination, he did not consider

what effect his leave would have on his absences. 

Temple was fired for failure to meet American’s performance

requirements. The fact that this decision was made after Temple

returned from leave does not necessitate a finding that he was

fired for taking leave. 

AFFIRMED.
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