UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-41125
Summary Calendar
MARCOS VILLEGAS,
Plaintiff-Appellant,
VERSUS
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
(B-93-CV-111)
August 15, 1997
Before WISDOM, KING, and SMITH, Circuit Judges.
PER CURIAM:*
On July 20, 1992, Marcos Villegas was one of a large group of
illegal aliens attempting to evade detection and capture by the
U.S. Border Patrol approximately 100 miles north of Brownsville,
Texas, near the Sarita Border Patrol check point. At approximately
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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10:15 p.m., the group was spotted by Border Patrol agents, who
issued a warning that Immigration agents were in the area. As the
group scattered, Villegas hid in a field of tall grass by lying
with his face toward the ground.
Agent Robert Allman drove a Border Patrol vehicle in pursuit
of the aliens and accidentally struck and injured Villegas while he
was hiding. Villegas sued the Government for the negligence of its
employee pursuant to the Federal Tort Claims Act, 28 U.S.C. §
1346(b). He alleged that Allman was negligent for failing to keep
a proper lookout, failing to control his speed, and failing to
timely apply the brakes. The Government alleged that Villegas’s
injuries were the result of his own negligence.
At trial, Villegas attempted to introduce a new theory of
negligence, arguing that the Government was negligent for failing
to implement a policy under which officers would conduct foot
searches in front of vehicles looking for aliens. The Government
objected to this new theory. Villegas moved to amend the pleadings
to conform with his allegation. The magistrate refused to consider
the defendant’s argument because it was not pleaded in the
complaint, and no discovery was conducted on the issue.
Villegas contends that the magistrate judge erred in refusing
to consider his new claim. He urges that the claim was identified
in the joint pretrial order and, therefore, was properly before the
court under Fed. R. Civ. P. 16. He asserts that, even if not
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properly pleaded, the claims were tried by consent of the parties
under to Fed. R. Civ. P. 15(b) and that the magistrate judge erred
in refusing to allow an amendment to conform to the evidence. We
disagree, and for the reasons that follow, we AFFIRM.
Both a trial court's interpretation of a pretrial order and
its decision to deny an amendment to the pleadings are reviewed for
abuse of discretion. Thrift v. Hubbard, 44 F.3d 348, 356 (5th Cir.
1995); Moody v. FMC Corp., 995 F.2d 63, 65 (5th Cir. 1993).
The language in the pretrial order is insufficient to put the
Government on notice that Villegas was asserting a new theory of
negligence. As the Government points out, the pretrial order does
not specifically refer to a claim of negligence based upon the
failure to implement a foot-search policy, nor do the attached
witness or exhibit lists demonstrate that Villegas intended to
offer evidence in support of such a claim. Accordingly, the
magistrate judge did not abuse his discretion in interpreting the
pretrial order as failing to properly raise the new claim. See,
e.g., Lamborn v. Dittmer, 873 F.2d 522, 526-27 (2nd Cir. 1989).
The magistrate likewise did not abuse his discretion in
refusing to allow a trial amendment under to Fed. R. Civ. P. 15(b).
Rule 15(b) provides the limited circumstances in which a trial or
post-judgment amendment to conform the pleadings to the evidence
and assert claims not raised by the pleadings is permitted. The
rule directs a court to determine whether the parties expressly or
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impliedly consented to try the issue not raised in the pleadings.
Fed. R. Civ. P. 15(b). The record in this case does not support a
finding of express consent. To support a finding of implied
consent, a court must consider “whether the parties recognized that
the unpleaded issue entered the case at trial, whether the evidence
that supports the unpleaded issue was introduced at trial without
objection, and whether a finding of trial by consent prejudiced the
opposing party’s opportunity to respond.” Portis v. 1st Nat’l Bank
of New Albany, Miss., 34 F.3d 325, 332 (5th Cir. 1994), quoting
United States v. Shanbaum, 10 F.3d 305, 312-13 (5th Cir. 1994).
Generally, a court will find implied consent if a party fails to
object to evidence supporting issues that go beyond the pleadings.
Id.
Villegas asserts that the claim was tried by consent because
the Government did not object to the presentation of evidence
regarding policies, training, and whether agents should have posted
lookouts on the ground. It appears, however, that most of this
evidence was not objected to because it was relevant to Allman’s
duty to keep a proper lookout, one of the pleaded issues in the
case. Moreover, the Government did object to evidence regarding
Border Patrol policies on the grounds that the evidence fell
outside the scope of the pleadings and that the witnesses were not
qualified to testify about matters of policy.
The Government’s objections demonstrate lack of consent. This
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fact alone may support a court’s denial of a motion to amend.
Moody, 995 F.2d at 66. Further, trial by consent requires that the
parties actually recognize the issue to have been litigated.
Trinity Carton Co., Inc. v. Falstaff Brewing Corp., 767 F.2d 184,
192 (5th Cir. 1985). A party does not impliedly consent by failing
to object to evidence which is relevant to pleaded issues. Moody,
995 F.2d at 66. Thus, the Government’s failure to object to issues
relevant to the allegations in the complaint do not demonstrate
trial by consent.
Despite the Government’s objections, the magistrate judge may
have abused his discretion if allowing the proposed amendment would
have promoted the interests of justice without prejudice to the
Government. Id. In deciding whether to allow amendment over a
party’s objection, the district court should consider: 1) the
interests of justice; 2) the potential prejudice to the objecting
party; and 3) whether the requesting party unduly delayed its
request to amend its pleadings. Id. The magistrate judge found
that the Government was prejudiced by its inability to conduct
discovery on the policy issue and its corresponding failure to
present appropriate witnesses to testify at trial. The magistrate
also concluded that Villegas unduly delayed his request for an
amendment: discovery had long since been completed, trial was
nearly complete, and Villegas gave no reason for the delay. These
findings are not erroneous. See e.g., Moody, 995 F.2d at 66,
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holding that a motion to amend was unduly delayed because discovery
was completed, trial was already underway, and delay was
unexplained. The interests of justice did not override the
prejudice to the Government and the defendant’s undue delay in
requesting the amendment. We hold, therefore, that the magistrate
judge’s denial of the defendant’s motion to amend was not an abuse
of discretion.
AFFIRMED.
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