IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
WITCO CORPORATION; JOSEPH DALEY,
Appeal from the United States District Court for the Eastern District of Louisiana
October 27, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
Joseph Bruno sued Witco Corporation and Joseph Daley for
fraudulent misrepresentation. Bruno asserts that the district
court: erred in dismissing Daley as fraudulently joined, finding
no possibility of recovery against him; erred in granting summary
judgment in favor of Witco; and abused its discretion by denying
Bruno's motion to extend deadlines.
In a previous action against Witco, Bruno served as
plaintiffs' counsel. Those plaintiffs sued Bruno for malpractice,
following summary judgment being granted defendants on the basis
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this opinion should not be published and is not precedent except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.
that causation was not established. Bruno filed only one expert
report within the deadline set by the district court. Prior to the
dismissal of that action, Bruno took the deposition of Daley, as
Witco's corporate representative.
In the case at hand, Bruno maintains that, had Daley not
provided fraudulent testimony, he would have had sufficient
evidence to obtain expert testimony establishing causation.
However, even assuming Bruno's assertion is correct, he would not
have been allowed to file additional expert reports because he
failed to timely file a memorandum in opposition to defendant's
motion in limine to strike expert witnesses.
The deadline for filing expert reports was 9 December 1992.
On 7 January 1993, Witco filed a motion in limine to strike expert
witnesses. Bruno deposed Daley on 8 January 1993. On 28 January
1993, the district court granted Witco's motion in limine, because
Bruno failed to timely file an opposing memorandum.
Summary judgment is proper if, viewing the record in the light
most favorable to the non-movant, there is no material fact issue
and the movant is entitled to judgment as a matter of law. FED. R.
CIV. P. 56; see, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574
, 587 (1986). Pursuant to this standard and our
requisite de novo review of the record, Bruno has failed to
establish causation in this action.
In sum, we conclude that the district court did not err in
dismissing the claim against Daley as fraudulently joined and in
granting summary judgment for Witco. Furthermore, we find that, in
the light of Bruno's failure to conduct any discovery in the case
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at hand, it was not an abuse of discretion for the court to deny
Bruno's motion for an extension. Accordingly, we AFFIRM,
essentially for the reasons stated by the district court. Bruno v.
Witco Corp., No. 99-2354 (E.D. La. Mar. 9, 2000) (minute entry
explaining summary judgment and denial of extension); Bruno v.
Witco Corp., No. 99-2354 (E.D. La. Oct. 12, 2000) (minute entry
denying motion to remand).
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