Ashker v. Horizon Offshore

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 00-30642
Summary Calendar
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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
DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
In this diversity action, Gerald Ashker ap-
peals a summary judgment in favor of Horizon
Offshore Contractors, Inc. (“Horizon”).
Finding no error, we affirm.
Ashker sued Horizon, claiming that it orally
promised him that he could participate in a
bonus pool consisting of ten percent of
Horizon’s gross revenues if Horizon achieved
$30 million in “revenues” from June 18, 1996,
through June 18, 1997. Even though Ashker
* 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determined that this opinion should not be
published and is not precedent except under the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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was transferred from his position on the sales
force in March 1997 and was laid off in June
1998, he did not ask for his bonus until he filed
the suit.
Horizon filed two motions for summary
judgment: one based on the inadequacy of
Horizon’s actual revenues (only $22 million)
and the other on the lack of contract formation
as a matter of law even under Ashker’s version
of the alleged contract terms. The district
court granted both motions. Ashker appeals,
asserting that he had an insufficient
opportunity to conduct discovery; that a
question of material fact existed as to the
amount of Horizon’s revenue, precluding the
first motion for summary judgment; and that
the contract had definite terms, precluding the
second motion for summary judgment.1
I.
We review for abuse of discretion the de-
cision to provide sufficient opportunity to con-
duct discovery to respond to a motion for
summary judgment. King v. Dogan, 31 F.3d
344, 346 (5th Cir. 1994) (quoting Richardson
v. Henry, 902 F.2d 414, 417 (5th Cir. 1990)).
Ashker claims the court erred in granting
summary judgment while a motion to compel
discovery was pending.
The court did grant Ashker two
continuances under FED. R. CIV. P. 56(f), but
in its response to the second, the court set a
deadline beyond which no further continuances
would be granted. Ashker now contends that
because discovery was not complete to his sat-
isfaction and because a motion to compel dis-
covery was pending before a magistrate judge
at the time of the summary judgment hearing,
the district court erred in proceeding without
allowing additional discovery.
A court may properly end discovery prior
to granting summary judgment “despite the ex-
istence of outstanding discovery requests.”
Netto v. Amtrak, 863 F.2d 1210, 1215 (5th
Cir. 1989). The court allowed extensive dis-
covery, granting two continuances of the first
summary judgment motion and one of the sec-
ond. Ashker’s pending motion to compel dis-
covery requested a complete download of
Horizon’s archived accounting system, hoping
“to perform calculations” that would show that
the figures reached by the defendants are
merely one interpretation of [the] financial rec-
ords. Ashker also requested all of the e-mails
and electronic documents on Horizon’s
network, hoping to find a document that
would support the allegedly promised bonus.
Neither of these voluminous records would
yield new information relevant to either
summary judgment motion. Horizon had
already provided financial records, audited by
Arthur Anderson, sufficient to determine its
revenue for the period in question. Moreover,
the second motion accepted Ashker’s
statement of the facts arguendo, so documents
supporting his version of the contract would
have no effect.
[A] plaintiff’s entitlement to discovery
before a ruling on a motion of summary
judgment is not unlimited and may be
cut off when the record shows that the
requested discovery will not be likely to
produce facts he needs to withstand a
summary judgment motion. Paul Ka-
dair, Inc. v. Sony Corp., 694 F.2d 1017,
1029-30 (5th Cir. 1983). A district
judge “may exercise his discretion to
prevent the plaintiff from burdening the 1 Although Ashker asserted contract and tort
claims, he appeals only on the contract claim.

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defendants with a needless round of
discovery.” Id. at 1030. The court
pointed out: “[I]t is clear that a plaintiff
cannot defeat a motion for summary
judgment by . . . amplifying [his
allegations] only with speculation about
what discovery might uncover.” 694
F.2d at 1030 (quoting Contemporary
Mission, Inc. v. United States Postal
Service, 648 F.2d 97, 107 (2d. Cir.
1981).
Netto, 863 F.2d at 1216.
Ashker did not show that the additional in-
formation he requested from Horizon would
have more than a speculative impact on his
ability to withstand a summary judgment mo-
tion. Thus, the court did not abuse its
discretion in ruling on the summary judgment
motion despite the outstanding discovery.
II.
Ashker challenges the decision to grant
Horizon’s first motion for summary judgment,
claiming that the amount of revenue Horizon
earned was a question of material fact. We re-
view a summary judgment de novo. Webb v.
Cardiothoracic Surgery Assoc., 139 F.3d 532,
536 (5th Cir. 1998). A party is entitled to
summary judgment “if the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the affidavits,
if any, show that there is no genuine issue of
material fact and that the moving party is en-
titled to judgment as a matter of law.” FED. R.
CIV. P. 56(c). The moving party must prove
“that there is an absence of evidence to
support the nonmoving party’s case.” Celotex
v. Catrett, 477 U.S. 317, 325 (1986). The
nonmoving party must then demonstrate
“specific facts showing that there is a genuine
issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 588
(1986).
Horizon’s financial records created during
the normal course of business and the
supporting affidavit of Dale Peltier, Horizon’s
Controller, show that Horizon’s gross
revenues for the period between June 1996
and June 1997 were approximately $22
million. Peltier based his testimony on
“Revenue Accrual Worksheets,” schedules
that form the basis for Horizon’s financial
statements audited by Arthur Anderson.
Ashker contends that Horizon’s revenue
accrual sheets do not reflect the revenues from
jobs successfully bid by sales staff but on
which work had not yet begun, i.e., gross
sales. Significantly, the district court noted in
its minute entry that Ashker testified in
deposition that the $30 million threshold was
based on gross revenues. Even using gross
sales, however, Horizon did not earn $30
million in the relevant time period. As the
head of Horizon’s estimating department
testified, the maximum value of bids during the
relevant time was $25.6 million. This figure
includes the value of all jobs through June
1997 minus the value of jobs completed before
June 18, 1996, plus the value of jobs bid
before June 1997 that are not reflected on the
accrual worksheet.
Ashker submitted a one-page letter from an
accountant stating that the sales figures totaled
$31,993,340 for the period in question. This
letter may not support an opposition to
summary judgment, because it was not
“attached to and authenticated by an affidavit
conforming to FED. R. CIV. P. 56(e).” 11
JAMES W. MOORE ET AL., MOORE’S FEDERAL
PRACTICE § 56.14[2][c] (3d ed. 1997); see
also FED. R. CIV. P. 56(e). Further, the letter

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failed to meet the disclosure requirements
under FED. R. CIV. P. 26(a)(2) because the
expert revealed neither her qualifications nor
the documents on which she relied. “Doc-
umentary evidence for which a proper
foundation has not been laid cannot support a
summary judgment motion, even if the
documents in question are highly probative of
a central and essential issue in the case.” 11
JAMES W. MOORE ET AL., supra,
§ 56.14[2][c].2 Even unsworn expert reports
“do not qualify as affidavits or otherwise ad-
missible evidence for the purpose of Rule 56,
and may be disregarded by the court when rul-
ing on a motion for summary judgment.” Id.3
The court properly rejected this letter, because
it did not comply with the relevant procedural
rules.
Thus, because the one shred of evidence
Ashker produced in opposition to Horizon’s
figures did not meet the standards of proper
summary judgment evidence, the district court
correctly found no genuine issue of material
fact as to the amount of Horizon’s gross sales
or revenue. Because these figures fell short of
the $30 million Ashker identified as the thresh-
old for the promised bonus, his claim must fail.
III.
Regarding the second motion for summary
judgment, the court correctly found that even
accepting Ashker’s version of the terms of the
contract as true, these terms did not establish
a contract as a matter of law. Ashker bases
the existence of a contract on the following
facts: At a meeting on or around June 26,
1996, with approximately six other people,
Don Sites, then a principal with HLS Offshore
L.L.C., allegedly made an oral promise to pay,
in bonuses, ten percent of the company’s gross
revenues for June 1996 through June 1997,
which Ashker believed would entitle him to
$3.8 million. Ashker never mentioned the bo-
nus to anyone in the company until seven
months after he had left Horizon, nor did he
ever confirm the bonus plan in writing.
Even when Horizon’s attorneys interviewed
Ashker about this meeting while investigating
a similar claim by another employee, Ashker
did not claim that he, too, was owed a bonus.
Instead, one week after Sites supposedly
promised the bonus, he issued a memorandum
stating that he was just beginning to consider
a bonus plan, that the bonus pool would
contain a maximum of $150,000, that the
bonus would be contingent upon Horizon’s
profitability, and that the plan would need
revision before it became final. On these facts,
the district court found that the parties did not
form a valid contract.
Louisiana law lists four elements of a valid
contract: capacity, consent, object, and lawful
cause. J. Caldera & Co. v. Louisiana Stadium
& Exposition Dist., 750 So. 2d 284, 288 (La.
App. 5th Cir.), writ denied, 756 So. 2d 1144
(La. 2000). Horizon challenges only consent
and object. We need not address whether the
object of the contract is sufficiently definite,
because the alleged verbal agreement plainly
lacks consent.
2 See also Canada v. Blain’s Helecopters, Inc.,
831 F.2d 920, 925 (9th Cir. 1987) (disallowing the
use of unauthenticated fuel invoices in a wrongful
death action because they lacked a proper
foundation, even though the invoices were
probative of a central issue).
3 See also Lugue v. Hercules, Inc., 12 F. Supp.
2d 1351, 1358 (S.D. Ga. 1997) (holding that un-
sworn expert reports prepared in compliance with
rule 26(a)(2) are inadmissible because unsworn
statements do not qualify as affidavits).

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

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