Worldwide Detective Agency, Inc. v. Cannon Cochran Management Services, Inc. ( 2012 )

Case: 12-30368 Document: 00512089390 Page: 1 Date Filed: 12/19/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 19, 2012
No. 12-30368 Lyle W. Cayce
Summary Calendar Clerk
WORLDWIDE DETECTIVE AGENCY, INC.,
Plaintiff–Appellant
v.
CANNON COCHRAN MANAGEMENT SERVICES, INC., doing business as
CCMSI, formerly known as Management Services USA, Inc.; JERRY
ARMATIS,
Defendants–Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:10-CV-1563
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Plaintiff–Appellant Worldwide Detective Agency, Inc. (“Worldwide”)
appeals the district court’s decision to grant summary judgment for
Defendant–Appellee Cannon Cochran Management Services, Inc. (“CCMSI”) on
Worldwide’s breach-of-contract claim against CCMSI. Worldwide also appeals
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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the district court’s decision to deny its second motion for remand. For the
following reasons, we AFFIRM the district court’s decisions.
I. FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to a municipal contract with the City of New Orleans (the
“City”), CCMSI serves as a third-party administrator for the City’s workers’
compensation claims. CCMSI in turn engaged Worldwide to provide
investigative services in connection with its assessment of these claims. CCMSI
and Worldwide signed a Form DBE-1 which established that Worldwide, a
qualified disadvantaged business enterprise (DBE), would provide CCMSI with
these services, and that CCMSI was “committed to a minimum of 26% DBE
utilization on [the] contract” between the City and CCMSI (the “municipal
contract”). According to evidence offered by CCMSI, Worldwide was paid at least
26% of the fees earned by CCMSI during the years it was engaged to perform
work for CCMSI. Worldwide offers no evidence to dispute these figures. In early
March 2009, Jerry Armatis, CCMSI’s vice-president, terminated Worldwide’s
services upon discovering that Worldwide did not have a private investigator’s
license and was the subject of a cease-and-desist order issued by the Louisiana
State Board of Private Investigator Examiners.
On May 3, 2010, Worldwide filed suit against CCMSI in state court,
alleging, inter alia, that it had not received the entirety of its 26% share of
CCMSI’s total interest in the municipal contract and sought damages for the
remainder of what it was owed.
Worldwide joined Armatis to the suit, alleging fraud related to the
termination of the purported contract between CCMSI and Worldwide. CCMSI
removed the matter to the Eastern District of Louisiana on May 25, 2010 on the
basis of diversity jurisdiction, alleging that Armatis, a Louisiana resident and
the only non-diverse party, was improperly joined. The district court denied
Worldwide’s subsequent motion to remand, finding that the prescriptive period
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for any actions against Armatis had expired, and thus, Worldwide had failed to
plead a legally viable claim against Armatis. Because Armatis was the only non-
diverse party, the district court found that it had subject-matter jurisdiction
under 28 U.S.C. § 1332.
Worldwide then requested that the court reconsider its motion on the basis
that newly obtained evidence showed Armatis improperly paid Worldwide with
City funds, thus giving rise to a viable claim that could reasonably lead to
recovery against Armatis. The court denied the second motion for remand on the
grounds that Worldwide had still not shown any entitlement to an award for
damages. Meanwhile, CCMSI filed a motion for summary judgment regarding
Worldwide’s breach-of-contract claim. The district court granted CCMSI’s
motion, and Worldwide timely appealed.
II. DISCUSSION
A. Contract Dispute
1. Standard of Review
The court reviews the grant of a motion for summary judgment de novo,
applying the same standard as the district court. Threadgill v. Prudential Sec.
Grp., Inc., 145 F.3d 286, 292 (5th Cir. 1998). Summary judgment is appropriate
“‘if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.’” United Fire & Cas. Co. v. Hixson Bros. Inc., 453 F.3d 283, 285 (5th Cir.
2006) (citing Fed. R. Civ. P. 56(c) (later re-worded and re-numbered as present
Rule 56(a)). When considering a motion for summary judgment, the court must
view all facts and evidence in the light most favorable to the non-moving party.
Id. A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by (1) citing to particular parts of materials in the record, or (2)
showing that the materials cited do not establish the absence of a genuine
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dispute. Fed. R. Civ. P. 56(c)(1)(A)!(B). Furthermore, “[a] mere scintilla of
evidence is insufficient to present a question for the jury.” Int’l Therapeutics,
Inc. v. McGraw-Edison Co., 721 F.2d 488, 491 (5th Cir. 1983) (citing Boeing Co.
v. Shipman, 411 F.2d 365, 374–75 (5th Cir. 1969) (en banc), overruled in part on
other grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 336–39 (5th
Cir. 1997) (en banc)).
2. Analysis
Worldwide alleges that it entered into an oral contract with CCMSI which
entitled it to a 26% share of the total interest CCMSI had in its municipal
contract with the City. Even assuming that such a fee-sharing agreement did
exist, the most Worldwide would be entitled to receive is 26% of CCMSI’s total
interest in the municipal contract. According to CCMSI’s undisputed figures,
Worldwide received more than 26% of the total interest in the municipal contract
fee for the years in question. Therefore, without more evidence, it is unclear to
what extent Worldwide claims any damages. The district court was correct in
determining that Worldwide’s unsupported assertions that it has not received
the entirety of their 26% share, without more, do not survive summary
judgment.
Furthermore, exactly what Worldwide claims to be the total interest of the
municipal contract, from which Worldwide claims its 26% share, is ever-
changing. For the first time on appeal, and citing only its expert witness’s
account, Worldwide argues that, in addition to 26% of any fees paid by the City,
it is entitled to 26% of any amount “[the City] reimbursed CCMSI for costs and
expenses . . . .”1 Yet, Worldwide offers no evidence showing what
1
Even within its latest brief, Worldwide is not entirely consistent in its assertions of
what it is owed. At one point, referring to its expert-witness affidavit, Worldwide claims it
“was owed 26% of the amount that the [City] reimbursed CCMSI for its costs and expenses[,]”
while later arguing that all they seek is its “26% share of CCMSI’s contract fee, exclusive of
the expenses.”
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reimbursements, if any, CCMSI received from the City, nor does it offer evidence
that Worldwide was not compensated for those amounts. Without more, this
latest suggestion of entitlement to reimbursed costs and expenses does not
amount to more than a “mere scintilla of evidence,” as is required.
For its part, CCMSI denies the existence of an oral fee-sharing agreement
altogether. In its effort to prove the existence of the alleged fee-sharing contract
that could entitle Worldwide to any additional payment, Worldwide submitted
affidavits of both its sole shareholder and an expert witness regarding the
existence of the alleged contract. The district court found the affidavits did not
satisfy Worldwide’s burden of proof absent corroborating evidence. Though we
need not reach the issue given our conclusion that Worldwide was paid all it
would be entitled to under any such agreement, in an abundance of caution, we
find for CCMSI on this issue as well.
Under Louisiana law, contracts in excess of $500 “must be proved by at
least one witness and other corroborating circumstances.” La. Civ. Code Ann.
art. 1846. The party seeking to enforce performance bears the burden of proving
the existence of the contract by a preponderance of the evidence. B.M. Albrecht
Elec., Inc. v. Griffin, 413 So.2d 246, 247 (La. Ct. App. 1982). The trier of fact has
great latitude in what to accept as corroborating evidence. Id. On appeal, in
addition to its affidavits, Worldwide offers the argument that CCMSI’s
admission of having paid Worldwide at least 26% of its total interest in the
municipal contract is corroborating evidence of a fee-sharing agreement.
However, this merely proves that Worldwide was compensated at least 26% of
CCMSI’s total interest in the municipal contract, not that a fee-sharing contract
existed. Therefore, by failing to offer sufficient corroborating evidence of an oral
contract, Worldwide has failed to raise a genuine issue of material fact with
regard to the existence of an oral fee-sharing contract with CCMSI.
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To the extent that Worldwide urges a breach-of-contract claim against
CCMSI for wrongfully terminating its services because it was unlicensed, the
claim also does not survive summary judgment. Worldwide argues that by
providing services to a municipality, a state exemption statute exempts the
company from meeting Louisiana State licensing requirements. Worldwide
points to the affidavit of Pat Englade with the Louisiana Board of Private
Investigative Examiners (LBPIE), which had ordered Worldwide to cease and
desist its investigative operations. The LBPIE affidavit states that the “action
is considered closed until the agreement between his employer and CCMSI is
produced and the services provided are evaluated pursuant to the exemption
statute.” Worldwide, however, has offered no evidence that it meets the
requirements of any exemption statute, and thus, this claim does not survive
summary judgment.
B. Motion to Remand
1. Standard of Review
“A determination that a party is improperly joined and the denial of a
motion for remand to state court are questions of law reviewed de novo.” Kling
Realty Co. v. Chevron USA, Inc., 575 F.3d 510, 513 (5th Cir. 2009). In
determining whether a defendant is improperly joined, the Fifth Circuit asks
“whether [the plaintiff] has any possibility of recovery against the party whose
joinder is questioned.” Great Plains Trust Co. v. Morgan Stanley Dean Witter &
Co., 313 F.3d 305, 312 (5th Cir. 2002) (internal citation and quotation marks
omitted).
2. Analysis
We find that the district court’s decision to deny Worldwide’s second
motion for remand was proper. On appeal, Worldwide argues that because the
district court had to rely on state law to rule that the prescriptive period had
expired as to claims against Armatis, the denial of its motion for remand was
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error. This argument is without merit. The standard is whether the plaintiff
has a potentially viable claim against the questionably joined defendant, not
whether state law must be used to reach that conclusion. 28 U.S.C. § 1332.
Furthermore, Worldwide’s initial argument that Armatis is liable because
he improperly paid Worldwide from City funds fails because Worldwide concedes
in its brief that “Plaintiff’s expenses were properly paid by [the City.]”
Accordingly, the judgment of the district court is AFFIRMED.
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