UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-1926

VERCON CONSTRUCTION, INCORPORATED,

Plaintiff - Appellant,

versus

HIGHLAND MORTGAGE COMPANY,

Defendant - Appellee,

and

U.S. DEPARTMENT OF HOUSING & URBAN

DEVELOPMENT; MEL MARTINEZ, in his capacity as

Secretary of the United States Department of

Housing and Urban Development,

Defendants.

Appeal from the United States District Court for the District of

South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief

District Judge. (CA-03-1370-3)

Argued: May 24, 2006 Decided: June 20, 2006

Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.
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ARGUED: Donald Asendorf Harper, THE HARPER LAW FIRM, P.A.,

Greenville, South Carolina, for Appellant. Louis H. Lang,

CALLISON, TIGHE & ROBINSON, Columbia, South Carolina, for Appellee.

ON BRIEF: Cynthia Buck Brown, THE HARPER LAW FIRM, P.A.,

Greenville, South Carolina, for Appellant. 

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Vercon Construction, Inc. (Vercon) sued Highland Mortgage

Company (Highland) on theories of conversion, breach of fiduciary

duty, civil conspiracy, and tortious interference with contract,

all under South Carolina law. The district court rejected each

claim on the merits, granting Highland’s motion for summary

judgment and entering final judgment in favor of Highland. The

district court had also previously denied Vercon’s motion to amend

its complaint, which motion was untimely per the district court’s

scheduling order. On appeal, Vercon alleges as error both the

district court’s grant of Highland’s motion for summary judgment

and the district court’s denial of its untimely motion to amend.

Whether a party was entitled to summary judgment is a question

of law, which we review de novo. Higgins v. E.I. DuPont de Nemours

& Co., 863 F.2d 1162, 1167 (4th Cir. 1988). Summary judgment is

appropriate when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c). In reviewing a

district court’s grant of summary judgment, we must construe the

facts in the light most favorable to the non-moving party, here,

Vercon. Smith v. Virginia Commonwealth Univ., 84 F.3d 672, 675

(4th Cir. 1996) (en banc).
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We review for an abuse of discretion a district court’s denial

of a motion to amend the pleadings filed beyond the deadline set in

the scheduling order for the filing of such a motion. O’Connell v.

Hyatt Hotels of Puerto Rico, 357 F.3d 152, 155 (1st Cir. 2004).

Ordinarily, leave to amend is to be “freely given when justice so

requires.” Fed. R. Civ. P. 15(a). However, when granting leave to

amend, as was the case here, would require modifying the district

court’s scheduling order, Federal Rule of Civil Procedure 16(b)

requires that the movant must first show good cause. Leary v.

Daeschner, 349 F.3d 888, 909 (6th Cir. 2003) (after “scheduling

order’s deadline passes, a plaintiff first must show good cause

under Rule 16(b) for failure earlier to seek leave to amend before

a court will consider whether amendment is proper under Rule

15(a)”); Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th

Cir. 1998) (“If we considered only Rule 15(a) without regard to

Rule 16(b), we would render scheduling orders meaningless and

effectively would read 16(b) and its good cause requirement out of

the Federal Rules of Civil Procedure.”). Specifically, Federal

Rule of Civil Procedure 16(b) provides that a scheduling order

devised by a district court “shall not be modified except upon a

showing of good cause and by leave of the district judge . . . .”

Fed. R. Civ. P. 16(b). See also 6A Charles Alan Wright, Arthur R.

Miller, and Mary Kay Kane, Federal Practice and Procedure Civ. 2d,

§ 1522.1 (Rule 16(b) “specifically provides that the [scheduling]
*We note that on page nine of the district court’s memorandum

opinion granting Highland’s motion for summary judgment, the

district court appears to suggest that Vercon failed to submit its

final cost certifications to the United States Department of

Housing and Urban Development (HUD) in connection with the

financing of the construction project which underlies Vercon and

Highland’s dispute in this case. In our view, the record belies

such a suggestion. The matter, however, is of no moment. The

district court’s analysis is correct regardless.

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order can be modified only upon a showing of good cause. This

would require the party seeking relief to show that the deadlines

cannot reasonably be met despite the diligence of the party needing

an extension.”). 

Having thoroughly reviewed the district court’s opinions and

the parties’ briefs and submissions on appeal, and having heard

oral argument in this case, we conclude that the district court did

not err in granting summary judgment in favor of Highland, nor did

it err in denying Vercon’s untimely motion to amend its complaint.

We, therefore, affirm on the reasoning of the district court.

Vercon Construction, Inc. v. Highland Mortgage Co., C/A No.: 3:03-

1370-JFA (D.S.C. July 21, 2005) (granting Highland’s motion for

summary judgment); id. (D.S.C. Jan. 20, 2005) (denying Vercon’s

untimely motion to amend its complaint).*

AFFIRMED