Ashker v. Horizon Offshore

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 00-30642 Summary Calendar _______________

GERALD ASHKER,

Plaintiff-Appellant,

VERSUS

HORIZON OFFSHORE CONTRACTORS, INC., FORMERLY KNOWN AS H L S OFFSHORE, L.L.C.,

Defendant-Appellee.

_________________________

Appeal from the United States District Court for the Eastern District of Louisiana 99-CV-1367-D _________________________ November 30, 2000

Before SMITH, BENAVIDES, and In this diversity action, Gerald Ashker ap- DENNIS, Circuit Judges. peals a summary judgment in favor of Horizon Offshore Contractors, Inc. (“Horizon”). JERRY E. SMITH, Circuit Judge:* Finding no error, we affirm.

Ashker sued Horizon, claiming that it orally * promised him that he could participate in a Pursuant to 5TH CIR. R. 47.5, the court has bonus pool consisting of ten percent of determined that this opinion should not be Horizon’s gross revenues if Horizon achieved published and is not precedent except under the limited circumstances set forth in 5TH CIR. $30 million in “revenues” from June 18, 1996, R. 47.5.4. through June 18, 1997. Even though Ashker

was transferred from his position on the sales the district court erred in proceeding without force in March 1997 and was laid off in June allowing additional discovery. 1998, he did not ask for his bonus until he filed the suit. A court may properly end discovery prior to granting summary judgment “despite the ex- Horizon filed two motions for summary istence of outstanding discovery requests.” judgment: one based on the inadequacy of Netto v. Amtrak, 863 F.2d 1210, 1215 (5th Horizon’s actual revenues (only $22 million) Cir. 1989). The court allowed extensive dis- and the other on the lack of contract formation covery, granting two continuances of the first as a matter of law even under Ashker’s version summary judgment motion and one of the sec- of the alleged contract terms. The district ond. Ashker’s pending motion to compel dis- court granted both motions. Ashker appeals, covery requested a complete download of asserting that he had an insufficient Horizon’s archived accounting system, hoping opportunity to conduct discovery; that a “to perform calculations” that would show that question of material fact existed as to the the figures reached by the defendants are amount of Horizon’s revenue, precluding the merely one interpretation of [the] financial rec- first motion for summary judgment; and that ords. Ashker also requested all of the e-mails the contract had definite terms, precluding the and electronic documents on Horizon’s second motion for summary judgment.1 network, hoping to find a document that would support the allegedly promised bonus. I. We review for abuse of discretion the de- Neither of these voluminous records would cision to provide sufficient opportunity to con- yield new information relevant to either duct discovery to respond to a motion for summary judgment motion. Horizon had summary judgment. King v. Dogan, 31 F.3d already provided financial records, audited by 344, 346 (5th Cir. 1994) (quoting Richardson Arthur Anderson, sufficient to determine its v. Henry, 902 F.2d 414, 417 (5th Cir. 1990)). revenue for the period in question. Moreover, Ashker claims the court erred in granting the second motion accepted Ashker’s summary judgment while a motion to compel statement of the facts arguendo, so documents discovery was pending. supporting his version of the contract would have no effect. The court did grant Ashker two continuances under FED. R. CIV. P. 56(f), but [A] plaintiff’s entitlement to discovery in its response to the second, the court set a before a ruling on a motion of summary deadline beyond which no further continuances judgment is not unlimited and may be would be granted. Ashker now contends that cut off when the record shows that the because discovery was not complete to his sat- requested discovery will not be likely to isfaction and because a motion to compel dis- produce facts he needs to withstand a covery was pending before a magistrate judge summary judgment motion. Paul Ka- at the time of the summary judgment hearing, dair, Inc. v. Sony Corp., 694 F.2d 1017, 1029-30 (5th Cir. 1983). A district judge “may exercise his discretion to 1 Although Ashker asserted contract and tort prevent the plaintiff from burdening the claims, he appeals only on the contract claim.

defendants with a needless round of Zenith Radio Corp., 475 U.S. 574, 588 discovery.” Id. at 1030. The court (1986). pointed out: “[I]t is clear that a plaintiff cannot defeat a motion for summary Horizon’s financial records created during judgment by . . . amplifying [his the normal course of business and the allegations] only with speculation about supporting affidavit of Dale Peltier, Horizon’s what discovery might uncover.” 694 Controller, show that Horizon’s gross F.2d at 1030 (quoting Contemporary revenues for the period between June 1996 Mission, Inc. v. United States Postal and June 1997 were approximately $22 Service, 648 F.2d 97, 107 (2d. Cir. million. Peltier based his testimony on 1981). “Revenue Accrual Worksheets,” schedules that form the basis for Horizon’s financial Netto, 863 F.2d at 1216. statements audited by Arthur Anderson.

Ashker did not show that the additional in- Ashker contends that Horizon’s revenue formation he requested from Horizon would accrual sheets do not reflect the revenues from have more than a speculative impact on his jobs successfully bid by sales staff but on ability to withstand a summary judgment mo- which work had not yet begun, i.e., gross tion. Thus, the court did not abuse its sales. Significantly, the district court noted in discretion in ruling on the summary judgment its minute entry that Ashker testified in motion despite the outstanding discovery. deposition that the $30 million threshold was based on gross revenues. Even using gross II. sales, however, Horizon did not earn $30 Ashker challenges the decision to grant million in the relevant time period. As the Horizon’s first motion for summary judgment, head of Horizon’s estimating department claiming that the amount of revenue Horizon testified, the maximum value of bids during the earned was a question of material fact. We re- relevant time was $25.6 million. This figure view a summary judgment de novo. Webb v. includes the value of all jobs through June Cardiothoracic Surgery Assoc., 139 F.3d 532, 1997 minus the value of jobs completed before 536 (5th Cir. 1998). A party is entitled to June 18, 1996, plus the value of jobs bid summary judgment “if the pleadings, before June 1997 that are not reflected on the depositions, answers to interrogatories, and accrual worksheet. admissions on file, together with the affidavits, if any, show that there is no genuine issue of Ashker submitted a one-page letter from an material fact and that the moving party is en- accountant stating that the sales figures totaled titled to judgment as a matter of law.” FED. R. $31,993,340 for the period in question. This CIV. P. 56(c). The moving party must prove letter may not support an opposition to “that there is an absence of evidence to summary judgment, because it was not support the nonmoving party’s case.” Celotex “attached to and authenticated by an affidavit v. Catrett, 477 U.S. 317, 325 (1986). The conforming to FED. R. CIV. P. 56(e).” 11 nonmoving party must then demonstrate JAMES W. MOORE ET AL., MOORE’S FEDERAL “specific facts showing that there is a genuine PRACTICE § 56.14[2][c] (3d ed. 1997); see issue for trial.” Matsushita Elec. Indus. Co. v. also FED. R. CIV. P. 56(e). Further, the letter

failed to meet the disclosure requirements judgment, the court correctly found that even under FED. R. CIV. P. 26(a)(2) because the accepting Ashker’s version of the terms of the expert revealed neither her qualifications nor contract as true, these terms did not establish the documents on which she relied. “Doc- a contract as a matter of law. Ashker bases umentary evidence for which a proper the existence of a contract on the following foundation has not been laid cannot support a facts: At a meeting on or around June 26, summary judgment motion, even if the 1996, with approximately six other people, documents in question are highly probative of Don Sites, then a principal with HLS Offshore a central and essential issue in the case.” 11 L.L.C., allegedly made an oral promise to pay, J AMES W. M OORE ET AL ., supra, in bonuses, ten percent of the company’s gross § 56.14[2][c].2 Even unsworn expert reports revenues for June 1996 through June 1997, “do not qualify as affidavits or otherwise ad- which Ashker believed would entitle him to missible evidence for the purpose of Rule 56, $3.8 million. Ashker never mentioned the bo- and may be disregarded by the court when rul- nus to anyone in the company until seven ing on a motion for summary judgment.” Id.3 months after he had left Horizon, nor did he The court properly rejected this letter, because ever confirm the bonus plan in writing. it did not comply with the relevant procedural rules. Even when Horizon’s attorneys interviewed Ashker about this meeting while investigating Thus, because the one shred of evidence a similar claim by another employee, Ashker Ashker produced in opposition to Horizon’s did not claim that he, too, was owed a bonus. figures did not meet the standards of proper Instead, one week after Sites supposedly summary judgment evidence, the district court promised the bonus, he issued a memorandum correctly found no genuine issue of material stating that he was just beginning to consider fact as to the amount of Horizon’s gross sales a bonus plan, that the bonus pool would or revenue. Because these figures fell short of contain a maximum of $150,000, that the the $30 million Ashker identified as the thresh- bonus would be contingent upon Horizon’s old for the promised bonus, his claim must fail. profitability, and that the plan would need revision before it became final. On these facts, III. the district court found that the parties did not Regarding the second motion for summary form a valid contract.

Louisiana law lists four elements of a valid 2 See also Canada v. Blain’s Helecopters, Inc., contract: capacity, consent, object, and lawful 831 F.2d 920, 925 (9th Cir. 1987) (disallowing the cause. J. Caldera & Co. v. Louisiana Stadium use of unauthenticated fuel invoices in a wrongful & Exposition Dist., 750 So. 2d 284, 288 (La. death action because they lacked a proper App. 5th Cir.), writ denied, 756 So. 2d 1144 foundation, even though the invoices were (La. 2000). Horizon challenges only consent probative of a central issue). and object. We need not address whether the 3 See also Lugue v. Hercules, Inc., 12 F. Supp. object of the contract is sufficiently definite, 2d 1351, 1358 (S.D. Ga. 1997) (holding that un- because the alleged verbal agreement plainly sworn expert reports prepared in compliance with lacks consent. rule 26(a)(2) are inadmissible because unsworn statements do not qualify as affidavits).

The plaintiff bears the burden of proving not inquire about the promise either in June that offer and acceptance establish a verbal 1997 or at the end of 1997 when he received contract. Id. Where testimony establishes that a $1,200 bonus. Finally, he did not ask about the minds of both parties did not meet the bonus when Horizon transferred him out of touching primary matters, the contract is in- sales or when he was terminated in October valid for lack of consent. Id. Testimony dem- 1998. Thus, the contract fails to satisfy the onstrates that Sites did not believe he had of- element of consent necessary to the formation fered a bonus plan during the meeting, because of a contract under Texas law; we need not his letter issued the following week indicated address the other elements. that the idea had not been finalized. Thus, Sites and Ashker did not have a meeting of the AFFIRMED. minds as to the offer.

Moreover, Ashker’s failure to raise, with Horizon, the issue of his bonus before suing indicates a lack of acceptance. Therefore, Ashker has not satisfied his burden of proving the existence of the contract under Louisiana law.

Similarly, Texas law requires six elements for a valid contract: (1) an offer; (2) acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4) a communication that each party has consented to the terms of the agreement; (5) execution and delivery of the contract with the understanding that it become mutual and binding on both parties; and (6) consideration. Angelou v. African Overseas Union, 2000 WL 1201802, at *7 (Tex. App.SSHouston [14th Dist.] 2000, no pet.); see also Villarreal v. Art Instit., 20 S.W.3d 792, 798 (Tex. App.SSCor- pus Christi 2000, no pet.). The bonus package Horizon purportedly promised Ashker fails this standard. Regardless of how one interprets Horizon’s actions, Ashker presented no evidence that he communicated his consent to Horizon.

First, Ashker testified that he neither bargained for the alleged promise nor changed his behavior in reliance on it. Second, he did