Duet v. United States

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 9, 2001
• Docket: 01-30529
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-30529 Summary Calendar

SANDRA M DUET, wife of/and; GLEN C. DUET

Plaintiffs - Appellants

v.

UNITED STATES OF AMERICA

Defendant - Appellee _________________________________________________________________

RHONDA BARCELONA; JOHN M BARCELONA

Defendant - Appellee

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 00-CV-714 USDC No. 00-CV-1397 -------------------- October 4, 2001

Before KING, Chief Judge, and HIGGINBOTHAM and BENAVIDES, Circuit Judges.

PER CURIAM:*

Glen and Sandra Duet and Rhonda and John Barcelona appeal

the district court’s summary judgment in favor of the United

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-30529 -2-

States, dismissing their civil actions filed pursuant to the

Federal Tort Claims Act seeking to recover for property damage

allegedly caused during the construction of the Avenue D canal

flood-control project in Marrero, Louisiana. They argue that the

district court erred in denying them a continuance pursuant to

Fed. R. Civ. P. 56(f) to enable them to conduct additional

discovery. Because the Duets and Barcelonas did not explain

exactly what additional discovery was necessary or show that

additional discovery would produce evidence creating a genuine

issue of material fact, the district court did not abuse its

discretion in denying such a continuance. See Access Telecom v.

MCI Telecommunications Corp., 197 F.3d 694, 720 (5th Cir. 1999).

The Duets and Barcelonas argue that the district court erred

in holding that the discretionary-function exception precluded

their action against the Government for negligence. Because

Congress gave the United States Corps of Engineers discretion in

planning, approving the design, and constructing the Avenue D

canal project, the district court did not err in holding that the

discretionary function exception applies to the Corps’ actions

taken in connection with the project. See United States v.

Gaubert, 499 U.S. 315, 322 (1991); ALX El Dorado, Inc. v.

Southwest Sav. & Loan Ass’n, 36 F.3d 409, 411 (5th Cir. 1994).

AFFIRMED.