English v. Aramark ( 2021 )

Case: 19-20412 Document: 00516055139 Page: 1 Date Filed: 10/14/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 14, 2021
No. 19-20412
Lyle W. Cayce
Clerk
Jake Anthony English,
Plaintiff—Appellant,
versus
Aramark Corporation; Aramark Correctional Services,
L.L.C.,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-1585
Before Haynes, Graves, and Willett, Circuit Judges.
Per Curiam:*
Proceeding pro se, Jake Anthony English, Texas prisoner # 01222980,
appeals the district court’s order denying his motion for continuance and
granting summary judgment to Aramark Corporation and Aramark
Correctional Services, L.L.C. (collectively, “Aramark”) on his Texas
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-20412 Document: 00516055139 Page: 2 Date Filed: 10/14/2021
No. 19-20412
Deceptive Trade Practices Act (the “DTPA”), TEX. BUS. & COM. CODE
ANN. §§ 17.41–.63, and fraud claims, and dismissing English’s case with
prejudice. We AFFIRM.1
I. Background
English wanted to buy shoes that he could safely wear in the shower.
He purchased item number 8076 from the jail commissary, which was
identified as “shower shoe V-Strap XL” (the “product”) created by
Aramark. The product was white in color with a spongy sole; a black rubber
flexible strap was affixed to the sole of the shoe but was not permanently
stationed in place.
The first time English used the product in the shower, the shoe
“became lodged or stuck to the shower surface.” English “attempted to
dislodge the shoe by slightly moving [his] foot,” but “the black rubber
material popped through the hole in the sole of the shoe” and caused his foot
to slip. English fell backwards onto the concrete surface, injuring his lower
back and right hip.
English brought a personal injury lawsuit against Aramark in Texas
state court, claiming that Aramark violated the DTPA
§ 17.46(b)(5), (7), (9), (24) and committed common law fraud.2 Specifically,
1
We also DENY English’s motion to file a supplemental brief.
2
English identified his fraud claim as “constructive” fraud. But it is clear that he
raised a common law fraud claim. See Jacked Up, L.L.C. v. Sara Lee Corp., 854 F.3d 797,
810 (5th Cir. 2017) (holding that a plaintiff alleges a common law fraud claim so long as his
pleading alleges facts upon which relief can be granted even if the claim “fails to categorize
correctly the legal theory giving rise to the claim”) (internal quotation marks and citation
omitted)). English alleged that Aramark made a “false specific material representation”
that it knew at the time of the representation and “induced” English to act on the false
information, which English relied on and caused him injury. Id. (explaining that the
elements of common law fraud are a false material misrepresentation that was either known
to be false when made or was asserted without knowledge of its truth, that was intended to
2
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English alleged that Aramark falsely represented and advertised the product
on the commissary menu as a “shower shoe” that could be safe for use in the
shower when the product was actually “thong sandals,” as identified in the
purchase order receipt and in the new kiosk system used for purchasing
commissary items. English maintained that he would not have purchased the
product had it been listed as “thong sandals” on the commissary menu. He
sought damages for the injuries he suffered from his slip and fall.
Aramark removed the suit to federal district court under 28 U.S.C.
§ 1441(b) based on diversity jurisdiction under 28 U.S.C. § 1332(a). It then
moved for summary judgment, arguing that there was no material
misrepresentation. English responded and, at the same time, moved for
continuance under Federal Rule of Civil Procedure 56(d)(1) and (2) to
request discovery. The district court denied English’s motion, holding that
English failed to allege what discovery he intended to pursue or how
discovery would raise a genuine issue of material fact. It also granted
Aramark’s summary judgment motion, holding that English failed to raise a
genuine material fact issue on his claims, and dismissed the entire case with
prejudice.
English moved to alter or amend the judgment under Rule 59(e). The
district court summarily denied the motion. English timely appealed.
II. Discussion
The district court had jurisdiction in this case under 28 U.S.C.
§ 1332(a)(1).3 We have jurisdiction over the district court’s final decision
be acted upon, was relied upon, and caused injury). Indeed, Aramark implicitly
acknowledges that English raised a common law fraud claim.
3
We previously issued a non-dispositive opinion in this case, remanding the case
to the district court to determine whether it had subject matter jurisdiction to consider the
appeal. The case was remanded because Aramark had asserted jurisdiction based on
3
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under 28 U.S.C. § 1291, which dismissed all of English’s claims with
prejudice.
English argues that the district court erred in denying his motion for
continuance and granting Aramark’s motion for summary judgment. We
address each in turn.
A. Motion for Continuance
English argues that the district court erred in denying his motion for
continuance to conduct discovery prior to ruling on Aramark’s summary
judgment motion. We review a district court’s denial of a motion for
continuance for abuse of discretion. United States v. Lewis, 476 F.3d 369, 387
(5th Cir. 2007). To justify continuance, the movant must demonstrate
(1) “why the movant needs additional discovery” and (2) “how the
additional discovery will likely create a genuine issue of material fact.”
Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 535 (5th Cir. 1999).
English moved for continuance the same day he filed his response to
Aramark’s motion for summary judgment, in which he had argued that the
evidence showed a genuine material fact dispute regarding whether the
product was misrepresented as a “shower shoe.” English’s motion for
continuance did not provide what additional discovery he thought was
required to defeat Aramark’s motion for summary judgment on the material
misrepresentation claims. In fact, English believed he had enough evidence
already, asserting that “the evidence undisputedly show[s] that defendant
made a material misrepresentation of its product.” So it is unclear what
diversity of citizenship but failed to correctly assert the citizenship of Aramark Correctional
Services, L.L.C. The district court concluded that diversity jurisdiction exists, and the case
was returned to us for disposition. Neither party takes issue with the district court’s
conclusions on jurisdiction. We affirm the district court’s finding of jurisdiction.
4
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discovery English needed to rebut Aramark’s summary judgment motion on
the material misrepresentation claims.4 We thus hold that the district court
did not abuse its discretion in denying English’s motion for continuance on
those claims.5
B. Motion for Summary Judgment
English argues that the district court erred in granting Aramark’s
motion for summary judgment on his DTPA and common law fraud claims.6
We review a district court’s grant of summary judgment de novo and
apply the same standard as the district court. Ferraro v. Liberty Mut. Fire Ins.
Co., 796 F.3d 529, 531 (5th Cir. 2015). In so doing, “[w]e view all facts and
evidence in the light most favorable to the non-moving party.” Id. Summary
judgment is proper when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a).
To defeat summary judgment on a DTPA claim, the plaintiff must
raise a material factual dispute that (1) he is a consumer; (2) the defendant
engaged in false, misleading, or deceptive acts, as enumerated in DTPA
4
In his brief on appeal, English speculates what evidence he could have found if
permitted to conduct discovery, but such information was not presented to the district
court, so we do not consider it. See Stearns, 170 F.3d at 535 (holding that we do not consider
justifications for granting a continuance if they were not presented with the original
motion).
5
Accordingly, we deny English’s motion to file a supplemental brief, which seeks
to cite additional authorities for his argument that the district court erred in denying his
motion for continuance.
6
In arguing that the district court erred, English claims that Aramark’s affidavit by
Glenn Stepherson, the Commissary Manager at Aramark, was defective. Because the
district court’s decision did not rely on the affidavit and because we do not rely on it either,
we do not consider whether the affidavit was defective.
5
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§ 17.46(b); and (3) these acts constituted a producing cause of the
consumer’s damages. Doe v. Boys Clubs of Greater Dall., Inc., 907 S.W.2d
472, 478 (Tex. 1995) (citing TEX. BUS. & COM. CODE ANN.
§ 17.50(a)(1)). English brought DTPA claims under § 17.46(b)(5), (7), (9),
which require a material misrepresentation, and under § 17.46(b)(24), which
requires a failure to disclose. See Gill v. Boyd Distrib. Ctr., 64 S.W.3d 601,
604 (Tex. App.—Texarkana 2001, pet. denied) (acknowledging that
§ 17.46(b)(5) and (7) require misrepresentation and a § 17.46(b)(24) claim
requires a failure to disclose); Perez v. Hung Kien Luu, 244 S.W.3d 444, 447–
48 (Tex. App.—Eastland 2007, no pet.) (noting that a § 17.46(b)(9) claim
requires a misrepresentation). However, English’s material
misrepresentation claims and failure-to-disclose claim are essentially one and
the same: English alleged that Aramark materially misrepresented the
“thong sandals” as a “shower shoe” and therefore failed to disclose that the
product was in fact “thong sandals.” We therefore consider them as one.7
For a common law fraud claim under Texas law, the plaintiff must
raise a genuine material fact dispute that the defendant made “(1) a material
misrepresentation that (2) was false (3) was either known to be false when
made or was asserted without knowledge of its truth (4) was intended to be
relied upon (5) was relied upon and (6) caused injury.” Jacked Up, L.L.C. v.
7
Accordingly, we conclude that English’s failure-to-disclose claim was sufficiently
addressed in district court, even though Aramark did not expressly move for summary
judgment on the failure-to-disclose claim and the district court did not expressly rule on it.
Indeed, in its motion for summary judgment, Aramark stated it had trouble deciphering all
of English’s claims and sought broad relief on all of English’s claims. After English
responded to the motion by rearticulating his failure-to-disclose claim, Aramark replied
that its arguments for why there lacked a genuine issue of material fact on the material
misrepresentation claims also applied to English’s failure-to-disclose claim.
6
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Sara Lee Corp., 854 F.3d 797, 810 (5th Cir. 2017) (internal quotation marks
and citation omitted).
In sum, at the summary judgment stage, English must raise a genuine
material fact issue on Aramark’s material misrepresentation of the product.
He failed to do this.
English alleged one material misrepresentation: that the product was
materially misrepresented as a “shower shoe” that could be safe for use in
the shower.8 To be sure, in listing the product as a “shower shoe,” Aramark
impliedly represented that the product was safe to use in the shower. See
Ricky v. Hous. Health Club, Inc., 863 S.W.2d 148, 151–52 (Tex. App.—
Texarkana 1993, writ denied) (recognizing that by stating that a track was a
“jogging” track, the defendant impliedly represented that the track was safe
for jogging).
English did not, however, allege why the product, as “thong sandals,”
was not safe to use in the shower. Cf. id. at 149 (noting allegations that the
jogging track covered in astroturf was not safe for jogging due to certain
characteristics of the astroturf); see also Martin v. Home Depot U.S.A., Inc.,
8
Because English’s fraud claim relied on the same allegedly material
misrepresentation, we hold that the district court did not err in ruling on English’s fraud
claim sua sponte. Although Aramark did not move for summary judgment on English’s
fraud claim, the motion put English on notice that English needed to come forward with all
of his evidence on why Aramark made a false misrepresentation, a necessary element for a
fraud claim. Malacara v. Garber, 353 F.3d 393, 404 (5th Cir. 2003) (acknowledging that a
district court may grant summary judgment sua sponte so long as the losing party had notice
that he had to come forward with all of his evidence); Cohen v. Univ. of Tex. Health Sci. Ctr.,
557 F. App’x 273, 278 & n.5 (5th Cir. 2014) (per curiam) (holding that the district court did
not err in sua sponte granting summary judgment on employment retaliation claims when
the defendant moved for summary judgment on only the employment discrimination claim
because both claims rested on the same elements and therefore the plaintiff had sufficient
notice to respond); see also Jacked Up, 854 F.3d at 810 (explaining that a fraud claim
requires a false misrepresentation).
7
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369 F. Supp. 2d 887, 894 (W.D. Tex. 2005) (granting summary judgment to
the defendant on a DTPA misrepresentation claim because plaintiffs failed
to state that the defendant represented that the item had characteristics, uses,
or benefits which it did not possess); Shkolnick v. Coastal Fumigators, Inc., 186
S.W.3d 100, 106 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding
that plaintiffs failed to raise a genuine material fact issue that defendants
misrepresented that their inspection services were in accordance with
industry standards because plaintiffs failed to identify an industry standard
that was not met).
In other words, English did not allege, nor offer any argument on, what
qualities are required for a shoe to actually serve as a “shower shoe” and why
“thong sandals” does not meet that standard. He alleged and argued only
that “the word ‘thong sandal’ does not imply . . . that the product was
adequate to be worn in a shower,” as evident by the fact that the product
“became lodged or stuck to the shower surface” and that in attempting to
dislodge the shoe, his foot slipped, and he fell. But English failed to explain
why an actual shower shoe would not get “lodged or stuck to the shower
surface,” nor why his injury specifically occurred because he was in a
“shower environment.” That is, English failed to raise a fact issue that
demonstrates the significance of a shower shoe and how a true shower shoe
would have prevented his injury.
Accordingly, we hold that English failed to demonstrate a genuine
material factual dispute that Aramark materially misrepresented the product
as a “shower shoe.”
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s denial of
English’s motion for continuance and its grant of summary judgment to
Aramark. We DENY English’s motion to file a supplemental brief.
8