The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-40766
Summary Calendar
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DAVID G. MANNING,
Plaintiff-Appellant,
VERSUS
BROWN & WILLIAMSON TOBACCO CORPORATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
(1:94-CV-494)
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March 9, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Plaintiff David Manning, proceeding pro se, appeals the
dismissal of his complaint pursuant to FED. R. CIV. P. 12(b)(6),
alleging that the district court abused its discretion when it
refused his requests for additional discovery and for leave to
amend his complaint. Finding no abuse of discretion, we affirm.
*
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should not be published and is not precedent except under the limited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.
Manning, a prison inmate, brought this diversity action
charging that defendant Brown & Williamson Tobacco Corporation
(“Brown & Williamson) had been negligent, grossly negligent, and
strictly liable for the sale of cigarettes and had conspired to
mislead the public on the dangers of consuming cigarettes. The
court entered a stay order pending a decision in American Tobacco
Co. v. Grinnell, 951 S.W.2d 420 (Tex. 1997). After the Grinnell
decision, the stay order was lifted, and Brown & Williamson moved
to dismiss, arguing that Manning had failed to state a claim upon
which relief can be granted. The court did not permit further
discovery but, accepting the magistrate judge’s recommendation,
granted the motion to dismiss.
II.
We review decisions regarding discovery and requests to amend
for abuse of discretion. Mayo v. Tri-Bell Indus., 787 F.2d 1007,
1012 (5th Cir. 1986). We find no such abuse here.
A.
Manning does not challenge the merits of the dismissal but,
instead, argues that the court abused its discretion by staying
discovery pending a determination of whether he had stated a claim
upon which relief could be granted. Unfortunately, Manning does
not explain how further discovery could affect that decision.
2
Because the court rejected the underlying theory Manning advanced,1
its decision to stay discovery pending resolution of this question
of law could not be an abuse of discretion.
B.
Manning also argues that as a pro se plaintiff, he should have
been given an opportunity to amend in the face of a rule 12(b)(6)
motion. See Bazarowx v. Scott, 136 F.3d 1053 (5th Cir.), cert.
denied, 119 S. Ct. 156 (1998). We agree with Brown & Williamson,
however, that the court did not err in refusing his request to
amend, because it gave Manning adequate notice of the motion to
dismiss and because he has alleged his best case. See id. at 1054.
A district court may consider factors such as undue delay,
repeated failures to cure deficiencies with prior amendment, and
futility of amendment when exercising its discretion to deny a
motion to amend. Davis v. United States, 961 F.2d 53, 57 (5th Cir.
1991). Manning had approximately seven months to file an
amendment; he did file responses to the motion to dismiss and to
the magistrate judge’s recommendation. Thus, he had plenty of
notice as well as ample opportunity to respond to the motion to
dismiss.
1
See Perez v. Brown & Williamson Tobacco Corp., 967 F. Supp. 920 (S.D.
Tex. 1997) (finding that cigarettes are inherently unsafe under Texas law, and
a products liability suit based on a manufacturing defect is barred by statute);
see also TEX. CIV. PRAC. & REM. CODE § 82.004(a). Manning’s claims that Brown &
Williamson breached its duty to warn of the dangers of cigarette smoking also
fails because this court has held that cigarette manufacturers have no such duty
under Texas law. See Allgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168, 172 (5th
Cir. 1996). Because there is no such duty, Manning’s claim of conspiracy to
withhold warnings also fails.
3
Additionally, we believe Manning has filed his best case,
because he could not amend his lawsuit to avoid the grounds for its
dismissal. Texas has barred all product liability actions based on
alleged defects in tobacco products. See TEX. CIV. PRAC. & REM. CODE
§ 82.004(a). Manning’s action constitutes such a “product
liability action” as defined in the statute. Thus, the district
court did not err when, following the reasoning of Perez, it found
that Texas law barred claims under Manning's theory of liability.
See Perez, 967 F. Supp. at 927.
AFFIRMED.
4