Park Construction and Building Maintenance LLC v. Bureau Veritas Project Management LLC et al

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
PARK CONSTRUCTION AND 	§
BUILDING MAINTENANCE, LLC, 	§
§
Plaintiff, 	§
§
V. 	§ 	No. 3:23-cv-2270-E-BN
§
BUREAU VERITAS PROJECT 	§
MANAGEMENT LLC and RICHARD 	§
W. JOHNSON, 	§
§
Defendants. 	§
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Defendants Bureau Veritas Project Management LLC (“BVPM”) and Richard
W. Johnson have moved for summary judgment in this lawsuit that BVPM removed
from state court based on the Court’s diversity subject-matter jurisdiction, see Dkt.
No. 2; 28 U.S.C. § 1332, which United States District Judge Ada Brown then referred
to the undersigned United States magistrate judge for pretrial management under
28 U.S.C. § 636(b), see Dkt. Nos. 25, 70-74, & 76-78.
The Court has entered orders as to the showings that must be made at
summary judgment. See Dkt. Nos. 47, 48, & 75.
Plaintiff Park Construction and Building Maintenance, LLC (“PCBM”) filed
responses to the summary judgment motions. See Dkt. Nos. 79 & 80.
Defendants replied. See Dkt. Nos. 81 & 82.
And, for the reasons and to the extent explained below, the Court should
remand this lawsuit on its own motion for lack of subject-matter jurisdiction unless,
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 1 of 22 PageID <pageID>

- 2 -
within the time to file objections to that recommendation, BVPM – as the party that
has invoked the Court’s diversity jurisdiction through removal – provides evidence to
support its jurisdictional allegations, and, if it does, the Court should grant the
motions for summary judgment and dismiss this lawsuit with prejudice.
Legal Standards
Under Federal Rule of Civil Procedure 56, summary judgment is proper “if the
movant shows that 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). A factual “issue is
material if its resolution could affect the outcome of the action.” Weeks Marine, Inc.
v. Fireman’s Fund Ins. Co., 340 F.3d 233, 235 (5th Cir. 2003). And “[a] factual dispute
is ‘genuine,’ if the evidence is such that a reasonable [trier of fact] could return a
verdict for the nonmoving party.” Crowe v. Henry, 115 F.3d 294, 296 (5th Cir. 1997).
If the moving party seeks summary judgment as to his opponent’s claims or
defenses, “[t]he moving party bears the initial burden of identifying those portions of
the pleadings and discovery in the record that it believes demonstrate the absence of
a genuine issue of material fact but is not required to negate elements of the
nonmoving party’s case.” Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625
(5th Cir. 1998) (cleaned up). “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by: (A) citing to particular parts of materials in
the 	record, 	including 	depositions, 	documents, 	electronically 	stored 	information,
affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or (B) showing
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 2 of 22 PageID <pageID>

- 3 -
that the materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact.”
FED . R. CIV. P. 56(c)(1). “Summary judgment must be granted against a party who
fails to make a showing sufficient to establish the existence of an element essential
to that party’s case, and on which it will bear the burden of proof at trial. If the moving
party fails to meet this initial burden, the motion must be denied, regardless of the
nonmovant’s response.” Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511
(5th Cir. 2014) (internal quotation marks and footnote omitted).
“Once the moving party meets this burden, the nonmoving party must set
forth” – and submit evidence of – “specific facts showing a genuine issue for trial and
not rest upon the allegations or denials contained in its pleadings.” Lynch Props., 140
F.3d at 625; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc);
accord Pioneer Expl., 767 F.3d at 511 (“[T]he nonmovant 	cannot rely on the
allegations in the pleadings alone” but rather “must go beyond the pleadings and
designate specific facts showing that there is a genuine issue for trial.” (internal
quotation marks and footnotes omitted)).
The Court is required to consider all evidence and view all facts and draw all
reasonable inferences in the light most favorable to the nonmoving party and resolve
all disputed factual controversies in favor of the nonmoving party – but only if the
summary judgment evidence shows that an actual controversy exists. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Pioneer Expl., 767 F.3d at 511;
Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005); Lynch Props.,
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 3 of 22 PageID <pageID>

- 4 -
140 F.3d at 625.
“The evidence of the nonmovant is to be believed, and all justifiable inferences
are to be drawn in [her] favor. While the court must disregard evidence favorable to
the moving party that the jury is not required to believe, it gives credence to evidence
supporting the moving party that is uncontradicted and unimpeached if that evidence
comes from disinterested witnesses.” Porter v. Houma Terrebonne Hous. Auth. Bd. of
Comm’rs, 810 F.3d 940, 942-43 (5th Cir. 2015) (internal quotation marks and
footnotes omitted).
And “[u]nsubstantiated assertions, improbable inferences, and unsupported
speculation are not sufficient to defeat a motion for summary judgment,” Brown v.
City of Hous., 337 F.3d 539, 541 (5th Cir. 2003), and neither will “only a scintilla of
evidence” meet the nonmovant’s burden, Little, 37 F.3d at 1075; accord Pioneer Expl.,
767 F.3d at 511 (“Conclusional allegations and denials, speculation, improbable
inferences, 	unsubstantiated 	assertions, 	and 	legalistic 	argumentation 	do 	not
adequately substitute for specific facts showing a genuine issue for trial.” (internal
quotation marks and footnote omitted)); Hassen v. Ruston La. Hosp. Co., L.L.C., 932
F.3d 353, 355 (5th Cir. 2019) (A court must “view the evidence and draw all justifiable
inferences in favor of the nonmovant. Even so, barebones, conclusory, or otherwise-
unsupported assertions won’t cut it; the nonmovant ‘must go beyond the pleadings
and come forward with specific facts indicating a genuine issue for trial.’” (footnotes
omitted)).
So, “when the moving party has carried its burden under Rule 56(c), its
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 4 of 22 PageID <pageID>

- 5 -
opponent must do more than simply show that there is some metaphysical doubt as
to the material facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (internal quotation
marks omitted). Rather, the non-moving party must “set forth specific facts showing
the existence of a ‘genuine’ issue concerning every essential component of its case.”
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
“If a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact as required by Rule 56(c), the court may: (1)
give an opportunity to properly support or address the fact; (2) consider the fact
undisputed for purposes of the motion; (3) grant summary judgment if the motion and
supporting materials – including the facts considered undisputed – show that the
movant is entitled to it; or (4) issue any other appropriate order.” FED . R. C IV. P. 56(e).
And “[o]nly disputes over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary judgment.” Pioneer
Expl., 767 F.3d at 511 (internal quotation marks and footnote omitted). “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Scott, 550 U.S. at 380 (internal quotation
marks and emphasis omitted). And, “[w]hen opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version of the facts for purposes of
ruling on a motion for summary judgment.” Id.
“After the nonmovant has been given an opportunity to raise a genuine factual
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 5 of 22 PageID <pageID>

- 6 -
issue, if no reasonable juror could find for the nonmovant, summary judgment will be
granted.” DIRECTV, Inc. v. Minor, 420 F.3d 546, 549 (5th Cir. 2005) (footnote and
internal quotation marks omitted). “Where the record taken as a whole could not lead
a rational trier of fact to find for the nonmoving party, there is no genuine issue for
trial.” Scott, 550 U.S. at 380 (internal quotation marks omitted).
The Court will not assume “in the absence of any proof ... that the nonmoving
party could or would prove the necessary facts” and will grant summary judgment “in
any case where critical evidence is so weak or tenuous on an essential fact that it
could not support a judgment in favor of the nonmovant.” Little, 37 F.3d at 1075.
“Rule 56 does not impose upon the district court a duty to sift through the record in
search of evidence to support a party’s opposition to summary judgment,” and “[a]
failure on the part of the nonmoving party to offer proof concerning an essential
element of its case necessarily renders all other facts immaterial and mandates a
finding that no genuine issue of fact exists.” Adams v. Travelers Indem. Co. of Conn.,
465 F.3d 156, 164 (5th Cir. 2006) (internal quotation marks omitted).
Analysis
I. 	The Court currently lacks evidence that is at least sufficient to
support a jury finding of the citizenship of each party, a deficiency
that prevents subject-matter jurisdiction to grant the motions for
summary judgment in this case.
The Court must begin with its subject matter jurisdiction – its “power to say
what the law is.” United States v. Willis, 76 F.4th 467, 479 (5th Cir. 2023); see also
Louisiana v. U.S. Dep’t of Energy, 90 F.4th 461, 466 (5th Cir. 2024) (“Jurisdiction is
always first.” (citation omitted)).
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 6 of 22 PageID <pageID>

- 7 -
And, because “‘[f]ederal courts are courts of limited jurisdiction,’ possessing
‘only that power authorized by Constitution and statute,’” Gunn v. Minton, 568 U.S.
251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994)), “subject-matter delineations must be policed by the courts on their own
initiative even at the highest level,” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
583-84 (1999) (citations omitted).
As explained in the October 30, 2024 supplement to the amended scheduling
order,
[t]he United States Court of Appeals for the Fifth Circuit recently
explained that, in a diversity case under 28 U.S.C. § 1332,
 	“[a]t the pleading stage, the party invoking the federal court’s
jurisdiction must allege the citizenship of each” party;
 	“[a]t the summary judgment stage,” the party invoking the
federal court’s jurisdiction “must provide evidence sufficient to
support a jury finding of the citizenship of” each party; and,
 	“at trial,” the party invoking the federal court’s jurisdiction “must
prove the citizenship of each” party.
Megalomedia Inc. v. Philadelphia Indem. Ins. Co., 115 F.4th 657, 659
(5th 	Cir. 	2024) 	(published 	order); 	accord 	J.A. 	Masters 	Invs. 	v.
Beltramini, 	117 	F.4th 	321, 	323 	(5th 	Cir. 	2024) 	(published 	order);
MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310, 315 n.*
(5th Cir. 2019).
The Fifth Circuit has also long held that district courts can and
should do their own fact-finding and final determinations on their
subject-matter jurisdiction over a case at any stage, including before
summary judgment. See Dillon v. Rogers, 596 F.3d 260, 271 (5th Cir.
2010) (“Judges have the power to resolve certain threshold issues
without the participation of a jury before the adjudication of a case on
its merits. For example, when subject matter jurisdiction over a case
turns on disputed facts, judges have the power to resolve these disputes
in 	assuring 	themselves 	of 	their 	courts’ 	jurisdiction.”); 	Edwards 	v.
Associated Press, 512 F.2d 258, 262 n.8 (5th Cir. 1975) (“Consideration
of 	affidavits 	and, 	where 	necessary, 	the 	taking 	of 	testimony 	are
appropriate means for resolving jurisdictional disputes.”).
And, when district courts determine “the existence of subject
matter 	jurisdiction 	in 	fact,” 	the 	courts 	do 	not 	proceed 	under 	the
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 7 of 22 PageID <pageID>

- 8 -
strictures, burdens, or standards that apply to motions under Federal
Rules of Procedure 12(b)(6) and 56, such as attaching “presumptive
truthfulness … to [a] plaintiff’s [or removing defendant’s] allegations.”
Chatham Condo. Associations v. Century Vill., Inc., 597 F.2d 1002, 1012
(5th Cir. 1979) (cleaned up). A district court is instead “free to weigh the
evidence and satisfy itself as to the existence of its power to hear the
case”; “the existence of disputed material facts will not preclude the trial
court from evaluating for itself the merits of jurisdictional claims”; and
the party invoking the federal court’s jurisdiction “will have the burden
of proof that jurisdiction does in fact exist.” Id. (cleaned up).
To comply with this governing law, in this diversity case under 28
U.S.C. § 1332, the Court now orders that, as a supplement to the Court’s
Amended Scheduling Order [Dkt. No. 47],
 	the party invoking the federal court’s jurisdiction must include,
in any summary judgment motion or response that the party files,
evidence that is at least sufficient to support a jury finding of the
citizenship of each party but – better yet (to the extent there is a
difference in degree here) – evidence that is sufficient for the court
to evaluate and determine on its own the citizenship of each
party; and
 	the party invoking the federal court’s jurisdiction must also
include, in any summary judgment motion or response that the
party files, a section of its supporting brief that addresses the
necessary jurisdictional facts regarding each party’s citizenship
under Section 1332(a) and the supporting evidence submitted to
support the Court’s determinations.
Dkt. No. 48.
Through its summary judgment motion, BVPM provides that PCBM is a Texas
limited liability company; that, as an LLC, its citizenship is based on the citizenship
of all its members; and that PCBM’s sole member is Nathan Park, its CEO, who
resides in Rockwall, Texas. See Dkt. No. 74 at 14 (citing Dkt. No. 17 (PCBM’s amend.
compl., ¶ 1; Dkt. No. 78 (Park’s deposition tr.) at 12-13)); but see also Dkt. No. 17, ¶ 1
(“PCBM has two members, Nathan Park and Shannon Park, who both reside in
Rockwall County, Texas, and they intend to be domiciled there indefinitely and that
Texas is their true, fixed and permanent home, and thus they are domiciled in the
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 8 of 22 PageID <pageID>

- 9 -
state of Texas and are citizens of the state of Texas.”).
BVPM is correct that, “[f]or limited liability companies, § 1332 citizenship is
determined by the citizenship of all of its members,” so, “[t]o establish diversity
jurisdiction in a suit by or against an LLC, a party must specifically allege the
citizenship of every member of every LLC.” SXSW v. Fed. Ins. Co., 83 F.4th 405, 407-
08 (5th Cir. 2023) (cleaned up).
And, where its members are all natural persons, the LLC’s “§ 1332 citizenship
is determined by [each member’s] domicile, which requires residency plus an intent
to make the place of residency one’s permanent home.” Id. at 407.
So, “[a]n allegation of residency alone ‘does not satisfy the requirement of an
allegation of citizenship.’” Id. (quoting Strain v. Harrelson Rubber Co., 742 F.2d 888,
889 (5th Cir. 1984) (per curiam)); accord J.A. Maters Invs. v. Beltramini, 117 F.4th
321, 322 (5th Cir. 2024) (per curiam).
And, while the party invoking subject-matter jurisdiction is not required to
prove an intent to make the place of residency a party’s permanent home,
[i]n determining a litigant’s domicile, the court must address a variety
of factors. No single factor is determinative. The court should look to all
evidence shedding light on the litigant’s intention to establish domicile.
The factors may include the places where the litigant exercises civil and
political rights, pays taxes, owns real and personal property, has driver’s
and other licenses, maintains bank accounts, belongs to clubs and
churches, has places of business or employment, and maintains a home
for his family.
Coury v. Prot, 85 F.3d 244, 251 (5th Cir. 1996) (citations omitted).
BVPM has carried its burden at summary judgment to provide evidence to
support a jury finding as to PCBM’s citizenship, as at least the sworn deposition
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 9 of 22 PageID <pageID>

- 10 -
testimony reflects that its member is domiciled in Texas, where that testimony
reflects he resides and has a place of business. See Bank of Am., N.A. v. Ztar Mobile,
Inc., No. 3:23-cv-826-BN, 2025 WL 642052, at *5 (N.D. Tex. Feb. 27, 2025) (“BANA’s
evidence establishes that Haddad has a place of business (Ztar) in Texas, owns real
estate and maintains a home in Texas, and therefore at least pays property taxes in
Texas. The Court consequently concludes that BANA has offered evidence sufficient
to support a jury finding as [to] the citizenship of [this] party.”).
Regarding the Defendants, BVPM offers that Johnson is a citizen of Minnesota
and that it is a citizen of Delaware and Maryland based solely on allegations
contained in the pleadings. See Dkt. No. 74 at 15 (citing Dkt. No. 2 (its amend. notice
of removal); Dkt. 17 (PCBM’s first amend. compl.); Dkt. No. 54 (Johnson’s first
amend. answer)); see also FED . R. CIV. P. 7(a); Rachel v. State of Ga., 342 F.2d 336,
340 (5th Cir. 1965) (“[T]he petition for removal is the basis for the federal court’s
jurisdiction and it is a pleading of the facts necessary to vest jurisdiction in the federal
court.”).
As another judge in this district has observed, in Isquith ex rel. Isquith v.
Middle S. Utilities, Inc., 847 F.2d 186 (5th Cir. 1988),
the 	Fifth 	Circuit 	recognized 	that 	pleadings 	generally 	constitute
summary judgment evidence only where a verified pleading meets Rule
56(e)’s stringent summary judgment affidavit requirements, e.g., is
based on personal knowledge, states facts as would be admissible in
evidence, etc. 847 F.2d at 194. Courts have applied this standard
because “in those cases ... the pleadings were being used to support
summary judgment in favor of the party who drafted them.” Id. at 194-
95 (emphasis added). Where, however, a defendant seeks to use a
complaint’s allegations against the plaintiff, i.e., to assume for purposes
of the motion that plaintiff’s factual allegations are true, a court may
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 10 of 22 PageID <pageID>

- 11 -
review the “motion for summary judgment supported by the factual
allegations 	in 	plaintiffs’ 	complaint,” 	along 	with 	whatever 	other
admissible summary judgment proof a defendant may offer. Id. at 195.
Golden Spread Cooperative, Inc. v. Emerson Process Mgmt. Power & Water Solutions,
Inc., 360 F. Supp. 3d 494, 505 n.7 (N.D. Tex. 2019) (emphasis in original).
And, so, the Fifth Circuit has concluded that it sees “no reason why, for
purposes of resolution of [a defendant’s] motion for summary judgment only, [a court]
cannot treat the factual allegations of the complaint as admissions or stipulations.”
Isquith, 847 F.2d at 195.
But that treatment of a complaint does not allow BVPM to rely on the
pleadings as admissions or stipulations to carry its burden at summary judgment to
provide evidence that is at least sufficient to support a jury finding of the citizenship
of each party at least to the extent that BVPM points the Court just to the notice of
removal that it drafted as evidence of its own citizenship. See Dkt. No. 74 at 15.
And, so, considering the Fifth Circuit authority cited above, absent sufficient
evidence to support the citizenship of each party at this stage – to satisfy the Court
that there is subject matter jurisdiction to allow it to grant Defendants’ motion – the
Court likely cannot enter summary judgment but likely must remand this lawsuit for
lack of subject matter jurisdiction, as the removal statute “declares that, where
subject matter jurisdiction is lacking, the removed case ‘shall be remanded.’” Int’l
Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 89 (1991)
(emphasis 	in 	original; 	quoting 	28 	U.S.C. 	§ 	1447(c)); 	see, 	e.g., 	Riddley 	v.
CooperSurgical, Inc., ___ F. Supp. 3d ____, No. 2:24-cv-109-BR, 2025 WL 3062996, at
*5 (N.D. Tex. Nov. 3, 2025) (“At the summary judgment stage particularly, the
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 11 of 22 PageID <pageID>

- 12 -
requirement is for evidence, and there is no record evidence in this case on which a
reasonable jury could base a finding as to CooperSurgical’s citizenship. As a result,
Defendants, who bear the primary burden to make a showing of subject matter
jurisdiction in this removed case, have not carried that burden. Plaintiff, who bears
a secondary burden to the extent she wants the case to remain in federal court, has
also not carried it. As a result, the Court is unable to make a summary judgment
finding that it possesses subject matter jurisdiction. Without such a finding, the
Court lacks the power to consider the case at this stage of litigation.”); see also
MidCap, 929 F.3d at 315 n.* (“Citizenship issues, like every factual issue necessary
to support subject matter jurisdiction, must be supported in the same way as any
other matter on which the plaintiff bears the burden of proof, i.e., with the manner
and degree of evidence required at the successive stages of the litigation.” (cleaned
up)).
Even so, the 14-day period to file objections to these findings, conclusions, and
recommendation, as further explained below, allows BVPM an opportunity to submit
sufficient evidence to establish that each plaintiff’s citizenship is diverse from each
defendant’s citizenship and thus carry its burden to show, at this stage of the
litigation, that the Court possesses subject matter jurisdiction under Section 1332.
And, if BVPM can support the citizenship allegations with sufficient evidence,
Defendants are entitled to summary judgment on – and, so, dismissal of – PCBM’s
claims for the reasons set out below.
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 12 of 22 PageID <pageID>

- 13 -
II. 	If evidence can be offered to support the citizenship allegations,
the motions for summary judgment should be granted.
In sum, PCBM filed this lawsuit based on its allegations that Defendants
tortiously interfered with contractual relations and prospective contractual relations
regarding PCBM’s work for Home Depot.
As PCBM’s response to BVPM’s motion summarizes its position, it
had worked for many years with Home Depot on large structural
projects at numerous Home Depot locations throughout the United
States, 	after 	being 	awarded 	the 	Projects 	through 	a 	bid 	process.
Defendants Bureau Veritas Project Management LLC and Richard
Johnson controlled and managed the bid process for these Home Depot
Projects. In Fall 2022, Johnson demanded that PCBM provide to Bureau
Veritas and Johnson various types of internal PCBM records, like
employee pay stubs and bank account statements, and threatened that
if PCBM did not do so immediately, he would cause Home Depot to do
no 	more 	business 	with 	PCBM. 	The 	demand 	to 	PCBM 	for 	such
confidential 	and 	proprietary 	information 	appears 	to 	have 	been
motivated by personal interest for the use of PCBM’s information to
undercut PCBM’s bids or to provide to other contractors, or for some
other improper purpose. PCBM did not provide Bureau Veritas with
PCBM’s internal information, and soon thereafter, PCBM’s existing
contract with Home Depot on an on-going Project in Fort Smith,
Arkansas ($556,116 project), was terminated, and there was “slow pay”
on work already completed by PCBM on another Home Depot Project in
Dale City, Virginia. Further, PCBM thereafter (i) received no more
invitations to bid on the lucrative Home Depot structural projects; and
(ii) was not awarded any of its pending bids for Home Depot Projects,
despite historically being awarded about 30% of bids it had submitted.
As 	such, 	the 	evidence 	supports 	that 	Bureau 	Veritas 	intentionally
interfered with the existing contracts between PCBM for Home Depot
Projects and caused likely future contractual relationships between
PCBM and Home Depot to not occur.
Dkt. No. 79 at 4-5.
Under Texas law, “[t]he theory of tortious interference with business relations
by a third person includes two causes of action: (1) tortious interference with existing
contracts, and (2) tortious interference with prospective contractual relations.”
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 13 of 22 PageID <pageID>

- 14 -
Cooper v. Harvey, 108 F. Supp. 3d 463, 471 (N.D. Tex. 2015) (quoting Staton Holdings,
Inc. v. Russell Athletic, Inc., No. 3:09-cv-419-D, 2009 WL 4016117, at *2 (N.D. Tex.
Nov. 20, 2009)).
And, so, “Texas law distinguishes between tortious interference with an
existing contract and tortious interference with business relations.” Cloud49, L.L.C.
v. Rackspace Tech., Inc., No. 24-50385, 2025 WL 763474, at *5 (5th Cir. Mar. 11, 2025)
(per curiam) (citing Nix v. Major League Baseball, 62 F.4th 920, 934 (5th Cir. 2023)).
The elements of tortious interference with existing contractual
relations are “(1) an existing contract subject to interference, (2) a willful
and 	intentional 	act 	of 	interference 	with 	the 	contract, 	(3) 	that
proximately caused the plaintiff’s injury, and (4) caused actual damages
or loss.” Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d
74, 77 (Tex. 2000). The “act of interference” element generally requires
demonstration 	that 	the 	defendant 	“knowingly 	induced 	one 	of 	the
contracting parties to breach its obligations under a contract.” Funes v.
Villatoro, 352 S.W.3d 200, 213 (Tex. App. – Houston [14th Dist.] 2011,
pet. denied).
Nix, 62 F.4th at 934 (citation modified); see also Cloud49, 2025 WL 763474, at *5 &
n.4 (“[T]o succeed on a tortious interference with existing contract claim, the
defendant’s conduct must have resulted in ‘some obligatory provision of a contract
having been breached.’” (quoting WickFire, L.L.C. v. Woodruff, 989 F.3d 343, 354 (5th
Cir. 2021), as revised (Mar. 2, 2021) (cleaned up; quoting Walker v. Beaumont Indep.
Sch. Dist., 938 F.3d 724, 749 (5th Cir. 2019)); citing El Paso Healthcare Sys., Ltd. v.
Murphy, 518 S.W.3d 412, 421-22 (Tex. 2017) (“To prevail on a claim for tortious
interference with existing contract, Murphy had to present evidence that El Paso
Healthcare induced West Texas OB to breach the contract and thus interfered with
Murphy’s legal rights under the contract.” (cleaned up)))).
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 14 of 22 PageID <pageID>

- 15 -
And “a person must be a stranger to a contract to tortiously interfere with it.”
Morgan Stanley & Co., Inc. v. Tex. Oil Co., 958 S.W.2d 178, 179 (Tex. 1997). “This
stranger-to-the-contract requirement means that ‘a contracting party’s agent or
employee acting in the party’s interests cannot interfere with the party’s contract.’”
Mission Toxicology, LLC v. Unitedhealthcare Ins. Co., 499 F. Supp. 3d 350, 366 (W.D.
Tex. 2020) (citing Morgan, 958 S.W.2d at 179). And, so, “to recover for tortious
interference against an agent of a contracting party, ‘a plaintiff must prove that the
agent willfully or intentionally acted to advance the agent’s own interests at the
principal’s expense.’” Id. (citing Prudential, 29 S.W.3d at 79).
By contrast, a plaintiff bringing a claim of tortious interference
with business relations must allege that
(1) there was a reasonable probability that the plaintiff
would have entered into a business relationship with a
third party; (2) the defendant either acted with a conscious
desire to prevent the relationship from occurring or knew
the interference was certain or substantially certain to
occur as a result of the conduct; (3) the defendant’s conduct
was 	independently 	tortious 	or 	unlawful; 	(4) 	the
interference proximately caused the plaintiff injury; and
(5) the plaintiff suffered actual damage or loss as a result.
Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 923
(Tex. 2013) (deriving the elements from collected cases). Independently
tortious 	conduct 	is 	“conduct 	[that] 	would 	be 	actionable 	under 	a
recognized tort.” Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 726
(Tex. 2001). “Conduct that is merely ‘sharp’ or unfair is not actionable
and cannot be the basis for an action for tortious interference with
prospective relations.” Id.
Nix, 62 F.4th at 934 (citation modified).
Defendants’ grounds for summary judgment on the existing contract claim
include that PCBM has failed to offer evidence that Home Depot breached its contract
and that either BVPM or Johnson, as agents of Home Depot, interfered with the
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 15 of 22 PageID <pageID>

- 16 -
contract at Home Depot’s expense.
Defendants move for summary judgment on the prospective contract/business
relations claim for at least the reason that PCBM offers no evidence as to the
“independently tortious or unlawful” requirement.
And Defendants initially object to PCBM’s summary judgment evidence, the
affidavit of Park attached to the responses. See Dkt. No. 79, Ex. 1; Dkt. No. 80, Ex. 1;
Dkt. No. 81 at 2-4; Dkt. No. 82 at 2-3.
So, to reiterate, summary judgment is proper where “the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” F ED . R. CIV. P. 56(a). And, while “[a]ll reasonable
inferences are drawn in favor of the nonmoving party,” that party “cannot defeat
summary judgment with conclusory allegations, unsubstantiated assertions, or only
a scintilla of evidence.” Keister ex rel. Est. of Orr v. Dolgencorp, L.L.C., 139 F.4th 449,
452 (5th Cir. 2025) (quoting Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)).
And, so, as the Fifth Circuit also recently explained,
“[e]vidence proffered by one side to ... defeat a motion for summary
judgment will inevitably appear ‘self-serving,’” Dallas/Fort Worth Int’l
Airport Bd. v. INet Airport Sys., Inc., 819 F.3d 245, 253 n.14 (5th Cir.
2016), but “self-serving” evidence cannot be discounted on that basis
alone, Guzman v. Allstate Assurance Co., 18 F.4th 157, 161 (5th Cir.
2021). Self-serving declarations, like all summary judgment evidence,
must be “made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.” F ED . R. CIV. P. 56(c)(4). And
these facts must be particularized, not vague or conclusory. Guzman, 18
F.4th at 161 (citing Kariuki v. Tarango, 709 F.3d 495, 505 (5th Cir.
2013)). 	Broad 	legal 	or 	factual 	assertions 	in 	an 	affidavit 	that 	are
unsupported by specific facts are generally held to be conclusory. See id.
Cloud49, 2025 WL 763474, at *3 (footnote omitted); see also Renfroe v. Parker, 974
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 16 of 22 PageID <pageID>

- 17 -
F.3d 594, 598 (5th Cir. 2020) (“Material that is inadmissible will not be considered on
a motion for summary judgment because it would not establish a genuine issue of
material fact if offered at trial.” (quoting Geiserman v. MacDonald, 893 F.2d 787, 793
(5th Cir. 1990))); Duplantis v. Shell Offshore, Inc., 948 F.2d 187, 191 (5th Cir. 1991)
(“It has long been settled law that a [nonmovant] must respond to an adequate motion
for summary judgment with admissible evidence.” (citation omitted)); Henriquez v.
City of Farmers Branch, Tex., No. 3:16-cv-868-M-BN, 2022 WL 3127838, at *11 (N.D.
Tex. 	July 	8, 	2022) 	(“[R]egardless 	the 	evidence 	offered 	to 	support 	the 	factual
allegations of the nonmovant, those assertions must be supported by admissible
evidence to defeat a motion for summary judgment, as material that is inadmissible
does not establish a genuine issue of material fact if offered at trial.” (cleaned up)),
rec. accepted, 2022 WL 3104844 (N.D. Tex. Aug. 4, 2022).
The undersigned will consider Park’s affidavit under these standards to
determine if he testifies to specific facts based on his own knowledge such that any
testimony that he offers would be admissible at trial and thus create a genuine issue
of material fact that could defeat summary judgment.
A. 	If sufficient evidence can be offered to support the citizenship
allegations, 	the 	Court 	should 	grant 	summary 	judgment 	for
Defendants on the claim that they tortiously interfered with
contractual relations.
To refute Defendants’ contentions that PCBM has failed to support each
element of its tortious interference with contractual relations claim, Park submitted
an affidavit in which he testifies in part that, soon after, PCBM refused to
provide the information demanded by Bureau Veritas and Johnson, as
it involved internal confidential and proprietary information of PCBM
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 17 of 22 PageID <pageID>

- 18 -
such as the amounts it paid its employees and workers … , [and] despite
PCBM being awarded the Fort Smith Project and starting work on the
Project, Bureau Veritas and Johnson caused the termination of the
contract between PCBM and Home Depot on the Fort Smith Project, and
PCBM was paid only for the very initial work involving site clearing.
Also, soon after the threats to PCBM and me, Bureau Veritas and
Johnson caused payments owed for work performed by PCBM on a
Home Depot Project, at Dale City, Virginia Project, to be substantially
delayed.
Additionally, after the threats by Bureau Veritas and Johnson to
Park 	and 	PCBM, 	that 	it 	would 	destroy 	the 	PCBM/Home 	Depot
relationship, and PCBM’s refusal to provide such information to Bureau
Veritas, PCBM received no more invitations from Bureau Veritas to bid
on any Home Depot Projects. Also, at that time, PCBM had numerous
previously-submitted bids on Home Depot Projects that had not been
awarded; however, PCBM was awarded none of the Projects. Effectively,
Bureau Veritas and Johnson had caused the termination of PCBM’s
relationship with Home Depot on all structural bid-out projects.
Dkt. No. 79 at 20-21, ¶¶ 9-11.
First, to the extent that Park testifies that Defendants “caused” payments to
be substantially delayed – or contracts to be terminated – but provides no factual
content from which the Court may reasonably infer why or how he knows this to be
true, this testimony lacks the factual support to qualify as more than conclusory and
not based on Park’s personal knowledge and is therefore not competent summary
judgment evidence. See Guzman, 18 F.4th at 161 (“[S]elf-serving affidavits or
depositions [are] insufficient to create a fact issue … [if] their contents [are] either
conclusory, vague, or not based on personal knowledge.”).
Park’s testimony also does not show that Defendants’ conduct resulted in an
actual breach of the only contract at issue here – PCBM’s with Home Depot.
And “without sufficient proof that the defendant’s conduct resulted in some
obligatory provision of a contract having been breached, the plaintiff’s tortious
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 18 of 22 PageID <pageID>

- 19 -
interference claim is infirm as a matter of law.” WickFire, 989 F.3d at 354 (cleaned
up).
“To establish the element of a willful and intentional act of interference,
[PCBM] must produce evidence that [either Defendant] was a more-than-willing
participant and knowingly induced one of the contracting parties to breach its
obligations under the contract. To do so, [PCBM] must present evidence that an
obligatory provision of the contract was breached.” Duradril, L.L.C. v. Dynomax
Drilling Tools, Inc., 516 S.W.3d 147, 168 (Tex. App. – Houston [14th Dist.] 2017, no
pet.) (cleaned up).
And that’s hard to do when Park has also admitted that Home Depot did not
breach the sole contract at issue here, the Master Services Agreement with Home
Depot. See Dkt. No. 78 at 67-68 (“Q. So which contract provision did Bureau Veritas
or Mr. Johnson tortiously interfere with in PCBM’s contract with Home Depot? A. I
believe that he --- when he verbally threatened us is when he interfered. Q. That is
the act of interference? A. When he threatened us, yes. Q. Did Home Depot breach
their contract with PCBM? A. I don’t believe they did.”).
As to this required element, “evidence that a third party had a deleterious
financial effect on [a plaintiff’s] bottom line” is insufficient. WickFire, 989 F.3d at 356.
And, so, where “there is no evidence” that Defendants’ “conduct in fact induced
[Home Depot] to breach an agreement with [PCBM], [its] tortious interference with
contractual relations claim fails as a matter of law.” Id.
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 19 of 22 PageID <pageID>

- 20 -
B. 	If sufficient evidence can be offered to support the citizenship
allegations, 	the 	Court 	should 	grant 	Defendants 	summary
judgment on the claim that they tortiously interfered with
prospective contractual relations.
As set out above, to survive summary judgment on this claim, PCBM must
offer competent evidence that either Defendant’s “conduct would be actionable under
a recognized tort.” Sturges, 52 S.W.3d at 726 (providing examples and concluding that
“[c]onduct that is merely ‘sharp’ or unfair is not actionable and cannot be the basis
for an action for tortious interference with prospective relations, and we disapprove
of cases that suggest the contrary” (footnote omitted)); see also Shippitsa Ltd. v. Slack,
No. 	3:18-cv-1036-D, 	2019 	WL 	3304890, 	at 	*13 	(N.D. 	Tex. 	July 	23, 	2019)
(“‘Independently tortious’ means conduct that would violate some other recognized
tort duty ‘that is already recognized to be wrongful under the common law or by
statute.’” (quoting Staton, 2009 WL 4016117, at *2 (quoting Sturges, 52 S.W.3d at
713))).
PCBM has not done so.
Relying on Park’s affidavit, it instead concludes that
[t]he evidence shows that based on the length of the relationship
between PCBM and Home Depot that there was a reasonable probability
that 	PCBM 	would 	continue 	to 	be 	awarded 	bids 	on 	Home 	Depot
structural projects, as it had in the past. However, almost immediately
following Bureau Veritas’ demands to PCBM for its internal information
and improper threat to cause the termination of the PCBM/Home Depot
relationship, PCBM was not invited to bid on Home Depot Projects and
was not awarded any of the pending bids.
Dkt. No. 79 at 13-14.
But, even if that is true, it is not evidence of independently tortious conduct as
defined by controlling precedent.
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 20 of 22 PageID <pageID>

- 21 -
Recommendation
If 	within 	the 	time 	to 	file 	objections, 	Defendant 	Bureau 	Veritas 	Project
Management LLC (“BVPM”), as the party invoking the Court’s subject-matter
jurisdiction under 28 U.S.C. § 1332 through removal, provides evidence that is at
least sufficient to support a jury finding of the citizenship of each party, the Court
should grant its and Defendant Richard W. Johnson’s motions for summary judgment
[Dkt. Nos. 70 & 73] and dismiss the claims against them with prejudice.
But, if BVPM fails to timely provide this required evidence, the Court should
sua sponte remand this lawsuit to the state court from which it was removed for lack
of subject-matter jurisdiction.
A copy of these findings, conclusions, and recommendation shall be served on
all parties in the manner provided by law. Any party who objects to any part of these
findings, conclusions, and recommendation must file specific written objections
within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED . R. CIV.
P. 72(b). In order to be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and
specify the place in the magistrate judge’s findings, conclusions, and recommendation
where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the magistrate judge is not specific. Failure
to file specific written objections will bar the aggrieved party from appealing the
factual findings and legal conclusions of the magistrate judge that are accepted or
adopted by the district court, except upon grounds of plain error. See Douglass v.
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 21 of 22 PageID <pageID>

- 22 -
United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: January 15, 2026
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
Case 3:23-cv-02270-E-BN Document 83 Filed 01/15/26 Page 22 of 22 PageID <pageID>