IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 01-11277
Summary Calendar
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DAVID J. TEMPLE,
Plaintiff-Appellant,
versus
AMERICAN AIRLINES, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
For the Northern District of Texas
(No. 99-CV-2289)
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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.
*
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this opinion should not be published and is not precedent except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.
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
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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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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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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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