United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 9, 2005
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 04-40756
HERMAN E. MITCHELL,
Plaintiff-Appellant,
versus
METROPOLITAN LIFE INSURANCE CO.;
ALLSTATE LIFE INSURANCE CO.,
Northbrook Illinois,
Defendants-Appellees..
Appeal from the United States District Court for
the Eastern District of Texas
(USDC No. 4:01-CV-30-PNB)
_________________________________________________________
Before REAVLEY, JONES and GARZA, Circuit Judges.
PER CURIAM:*
We affirm the opinion of the district court for the following reasons:
1. The district court properly entered summary judgment in defendants’
*
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should not be published and is not precedent except under the limited circumstances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.
favor. The record as a whole establishes that no genuine issue of material fact exists
supporting this independent action for fraud on the court. See Capital Concepts
Props. 85-1 v. Mut. First, Inc., 35 F.3d 170, 174 (5th Cir. 1994); Browning v.
Navarro, 826 F.2d 335, 345 (5th Cir. 1987). The evidence shows that Mitchell’s
employment was terminated when he retired as a result of the buy-out of Herring
Marathon Group, Inc., and not “by reason of sickness or accident.” He was
therefore ineligible to receive benefits under the presumptive disability provision he
alleges defendants wrongfully withheld in the underlying action. Mitchell’s affidavit
alleging otherwise cannot alone defeat summary judgment, and he presents no other
evidence showing that his loss of vision caused his retirement. Galindo v. Precision
Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
Mitchell presents no evidence supporting his allegation that “own occupation
disability” under the plan meant that the claimant, due to sickness or injury, could
not perform any material job duty. On the contrary, the record shows that “own
occupation disability” was defined as the inability of the claimant to perform each
material duty of his job (as opposed to any job), due to sickness or injury, and that
defendants used this definition in considering Mitchell’s claim.
Thus, the evidence shows that neither the presumptive disability provision nor
the definition of own occupation disability that Mitchell alleges were wrongfully
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withheld in the underlying action could have supported his claim for benefits in that
action. Consequently, Mitchell has not presented a triable issue that defendants’
actions foreclosed to him the opportunity to have a fair and complete trial or
rendered the trial so fundamentally unfair as to undermine our confidence that the
judgment was sound. Browning, 826 F.2d at 345. Summary judgment in favor of
defendants was therefore appropriate.
2. The district court acted within its discretion in denying Mitchell’s motion
for a continuance. See HC Gun & Knife Shows, Inc. v. City of Houston, 201 F.3d
544, 549 (5th Cir. 2000). Mitchell sought the continuance to depose attorneys Huck
and Chapman regarding their decision not to produce the underwriting file. Because
the district court correctly found that Mitchell could not establish fraud on the court
because defendants’ withholding of the file had not foreclosed to him the
opportunity to fully and fairly litigate the underlying action, further inquiry into
Huck’s and Chapman’s reasons for not producing the file would have been
pointless.
3. The district court acted within its discretion in permitting defendants to file
an answer after the scheduling deadline had passed. See S&W Enters. v. Southwest
Bank of Ala., 315 F.3d 533, 535 (5th Cir. 2003). The court correctly applied the
S&W factors. See id. at 535-36.
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4. We decline Mitchell’s invitation to review documents provided to the
district court for in camera inspection and “make a de novo determination as to
whether or not any additional documents should have been produced.” Mitchell
claims that the documents establish a scheme to defraud the district court in the
underlying action by withholding the underwriting file. The existence of such a
scheme is no longer relevant in light of our conclusion that the withholding of the
file, for whatever reason, did not diminish Mitchell’s ability to fully and fairly
litigate the underlying action.
AFFIRMED.
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