IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30660

BRAND SERVICES, L.L.C., 

 Plaintiff - Appellant

v.

IREX CORPORATION, 

 Defendant - Appellee

Appeal from the United States District Court 

for the Eastern District of Louisiana

Before KING, ELROD, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

Appellant Brand Services, L.L.C. (“Brand Services”) challenges the 

district court’s grant of summary judgment in favor of Appellee Irex 

Corporation (“Irex”) on Brand Services’s Louisiana Uniform Trade Secrets Act 

(“LUTSA”) claim and its common law conversion claim. Brand Services argues 

the district court erred by concluding that (1) Brand Services failed to produce 

sufficient evidence of damages and (2) LUTSA preempted its conversion claim. 

Brand Services also argues the district court improperly ruled on its claims 

without first considering Brand Services’s pending discovery motion. For the 

reasons set forth below, we AFFIRM the district court’s grant of summary 

judgment as to the common law conversion claim based upon trade secrets and 

United States Court of Appeals

Fifth Circuit

FILED

October 17, 2018

Lyle W. Cayce

Clerk

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REVERSE the remainder of the district court’s judgment, remanding for 

further consideration in light of this opinion.

I. Factual and Procedural Background

Brand Services, an industrial scaffolding company, claims that its former 

employee, James Stanich, stole trade secrets and confidential and proprietary 

information when he went to work for Irex, a competitor. Specifically, Stanich 

allegedly transferred from his work computer files containing information 

about software that Brand Services uses to, inter alia, invoice customers and 

track job productivity. Stanich then purportedly used this information to help 

Irex develop similar software. Brand Services filed suit based on this alleged 

misappropriation, asserting claims under LUTSA and for conversion under 

Louisiana common law. 

After Brand Services filed suit, the district court set the discovery 

deadline for February 17, 2017. Brand Services claims Irex filed improper 

blanket objections to Brand Services’s first request for production, and 

thereafter repeatedly promised to produce responsive documents but had not 

done so by the discovery deadline. Brand Services moved to compel production

of responsive documents on March 20, 2017. The magistrate judge denied the 

motion as untimely, but reminded Irex of its duty to supplement under Federal 

Rule of Civil Procedure 26(e). Irex never supplemented its responses. 

The district court then granted summary judgment for Irex on Brand 

Services’s LUTSA claim. The district court concluded that Brand Services 

failed to proffer evidence sufficient to create a fact issue on the amount of 

unjust-enrichment damages Irex obtained from allegedly using Brand 

Services’s trade secrets. Brand Services moved for reconsideration of the 

ruling, and Irex moved for summary judgment on Brand Services’s conversion 

claim. 

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While Irex’s second motion for summary judgment and Brand Services’s 

motion for reconsideration were pending, Brand Services discovered 

responsive documents produced in related proceedings in Pennsylvania. 

Although Brand Services moved to compel production of these documents in 

the Louisiana case, because the documents in the Pennsylvania case were 

provided under a protective order, Brand Services was unable to get 

representative documents in time to satisfy the magistrate judge in the 

Louisiana case, and the motion was denied. When Brand Services finally 

obtained the exemplar documents, it filed a motion for reconsideration. That 

motion remains unaddressed in the district court.

After Brand Services filed its motion for reconsideration of the discovery 

ruling, but before the magistrate judge ruled on that motion, the district court 

granted summary judgment on Brand Services’s conversion claim, holding 

LUTSA preempted that claim. The district court also denied Brand Services’s 

motion for reconsideration of the LUTSA ruling, reiterating that Brand 

Services failed to submit specific evidence to establish its damages. In doing 

so, the district court did not discuss Brand Services’s pending discovery motion. 

Brand Services timely appealed. 

II. Jurisdiction

Although the parties do not contest jurisdiction on appeal, we must 

consider our jurisdiction sua sponte. See Ruhrgas AG v. Marathon Oil Co., 526 

U.S. 574, 583 (1999); Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th 

Cir. 1999). Brand Services filed suit based on diversity jurisdiction under 

28 U.S.C. § 1332. Thus, we have jurisdiction over the district court’s final 

decision only if diversity jurisdiction was proper below. See 28 U.S.C. § 1291. 

Here, two issues exist: (1) whether the parties meet the diversity requirement 

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in light of Brand Services’s status as a limited liability company1 and (2) 

whether the $75,000 amount-in-controversy requirement is met. See 28 U.S.C. 

§ 1332(a). After we requested supplemental briefing on the former, Brand

Services submitted undisputed evidence that its members are citizens of 

Delaware and Georgia. Accordingly, we accept this filing as establishing 

diversity. See 28 U.S.C. § 1653; Carlton v. Baww, Inc., 751 F.2d 781, 789 (5th 

Cir. 1985); see also Burdett v. Remington Arms Co., L.L.C., 854 F.3d 733, 734 

n. 1 (5th Cir. 2017).

As far as the amount in controversy, the face of the complaint alleges 

facts showing it is more likely than not that more than $75,000 is at stake.2

When a complaint alleges an unspecified amount of damages, the party 

invoking diversity jurisdiction must show by a preponderance of the evidence 

that the amount-in-controversy requirement is met. See St. Paul Reinsurance 

Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998). We ask whether “it is 

facially apparent [from the complaint] that the claims exceed the jurisdictional 

amount,” and if it is not, the court may “rely on summary judgment-type 

evidence to ascertain the amount in controversy.” Id. (internal quotation 

marks omitted).

Here, Brand Services pleaded damages exceeding the $75,000 floor. 

Brand Services alleged that it invested more than $300,000 in 

“[r]edevelopment” costs associated with the allegedly misappropriated 

software. For its LUTSA claim, Brand Services may recover what it would cost 

 

1 In its complaint, Brand Services claimed it was diverse from Irex because Irex is a 

Pennsylvania corporation and it is a Delaware corporation with its principal place of business 

in Georgia. But a limited liability company’s citizenship turns on the citizenship of its 

members. See Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1079–80 (5th Cir. 2008).

2 We reach this conclusion based upon the pleadings before examining the merits 

question of whether Brand Services has proffered sufficient evidence of damages to survive 

summary judgment. 

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to acquire, lease, or develop misappropriated trade secrets. See Wellogix, Inc. 

v. Accenture, L.L.P., 716 F.3d 867, 879 (5th Cir. 2013) (applying Texas law). 

Accordingly, we conclude that Brand Services satisfied the amount-incontroversy requirement and that diversity jurisdiction was proper in the 

district court.

III. Standard of Review

“We review a district court’s grant of summary judgment de novo,

applying the same standard of review as would the district court.” Reingold v. 

Swiftships, Inc., 126 F.3d 645, 646 (5th Cir. 1997). “Summary judgment is 

proper only when it appears that there is no genuine issue of material fact and 

that the moving party is entitled to judgment as a matter of law.” Id. (citing 

FED. R. CIV. P. 56(c)). “On summary judgment the inferences to be drawn from 

the underlying facts contained in the affidavits, depositions, and exhibits of 

record must be viewed in the light most favorable to the party opposing the 

motion. Reingold, 126 F.3d at 646. 

IV. Discussion

Turning to the merits of the appeal, we begin with the discovery 

disagreement. Brand Services claims the district court prematurely granted 

summary judgment because Brand Services’s discovery motion was never 

ruled upon. Brand Services argues that the district court should not have ruled 

on its LUTSA and conversion claims before considering the import of the 

documents from the Pennsylvania litigation. 

A district court has discretion to deny as untimely a motion filed after 

the discovery deadline. See Vann v. Gilbert, 482 F. App’x 876, 879 (5th Cir. 

2012) (per curiam) (affirming summary judgment and finding no abuse of 

discretion in denying a motion to compel where the scheduling order required 

all discovery to be completed by a specific date and the motion was filed after 

that date); Curry v. Strain, 262 F. App’x 650, 652 (5th Cir. 2008) (per curiam) 

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(finding no abuse of discretion where the district court dismissed a motion to 

compel in part because it was filed almost one month after the discovery 

deadline). But when a properly filed discovery motion is pending, a district 

court should not grant summary judgment without first considering whether 

more discovery is required. See Smith v. City of Jackson, 351 F.3d 183, 197 

(5th Cir. 2003); Wichita Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 

919 n.4, 919–20 (5th Cir. 1992); Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 

1257, 1267 (5th Cir. 1991). 

Here, the district court failed to address the motion to reconsider the

proffered exemplar documents that Brand Services alleges would show that 

Irex failed to properly respond to the discovery requests and to supplement as 

directed by the magistrate judge. Brand Services claims it moved to compel 

immediately after discovering the responsive documents in the Pennsylvania 

litigation. There is some indication that Brand Services could not have 

reasonably discovered these documents sooner: Irex’s initial blanket objections 

to Brand Services’s discovery request were grossly improper, and thereafter

Irex did little to comply with Brand Services’s requests. Therefore, Brand 

Services was arguably diligent in seeking these documents even though it did 

not discover them until after the discovery deadline had passed. At a 

minimum, Irex’s conduct in this discovery proceeding is highly questionable 

and bears further examination in light of the exemplar documents. Thus, the 

district court improperly granted summary judgment without fully examining 

Brand Services’s unaddressed discovery motion.

We further conclude that the district court erred in granting summary 

judgment on Brand Services’s LUTSA claim because, even disregarding the 

Pennsylvania documents, Brand Services presented at least some evidence of 

the amount of its unjust-enrichment damages. 

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To recover damages under LUTSA, “a complainant must prove (a) the 

existence of a trade secret, (b) a misappropriation of the trade secret by 

another, and (c) the actual loss caused by the misappropriation.” Reingold, 126 

F.3d at 648 (internal citations omitted) (citing LA. STAT. ANN. §§ 51:1431, 

1433). “A complainant also may recover for the unjust enrichment caused by 

misappropriation that is not taken into account in computing damages for 

actual loss.” § 51:1433.

At summary judgment, “the nonmovant must identify specific evidence 

in the record . . . sufficient to sustain a finding in favor of the nonmovant on all 

issues as to which the nonmovant would bear the burden of proof at trial.” 

Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 

301 (5th Cir. 2004). We have previously suggested, applying Louisiana and 

other states’ laws, that a plaintiff fulfills its burden for proving trade secret 

damages by identifying evidence a jury could use to reasonably estimate 

damages in its favor. See Bohnsack v. Varco, L.P., 668 F.3d 262, 280 (5th Cir. 

2012); Reingold, 126 F.3d at 651; Univ. Computing Co. v. Lykes-Youngston 

Corp., 504 F.2d 518, 545 (5th Cir. 1974). A plaintiff need not prove precise 

damages, Bohnsack, 668 F.3d at 280; indeed, uncertainty in damages should 

not preclude recovery, Wellogix, 716 F.3d at 879. But a plaintiff must be able 

to show “the extent of the damages as a matter of just and reasonable inference, 

although the result be only approximate.” Id.

The district court determined that Brand Services failed to provide a just 

and reasonable inference of its damages. We disagree. Although Brand 

Services provided little in the way of detail about its claim that it spent 

“millions” to design the software allegedly stolen, it has, at a minimum,

provided some evidence from which a jury could reasonably estimate unjustenrichment damages. For example, it demonstrated that Irex’s use of the 

allegedly stolen information saved Irex at least two to three days a month in 

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time spent invoicing. Even assuming that Irex’s administrative personnel 

worked only an eight-hour day for minimum wage during those two to three 

days saved, this is a reasonable inference of unjust-enrichment damages. 

Thus, we conclude that Brand Services met its summary-judgment burden 

regarding the amount of its damages. Accordingly, we REVERSE the district 

court’s judgment on Brand Services’s LUTSA claim.

We now turn to Brand Services’s common-law conversion claim. We ask 

only whether, in theory, there can be a common-law conversion claim that 

survives LUTSA preemption. The district court went no further, so even if we 

determine that a theoretical claim could exist, we will not reach the question 

of whether the evidence supports such a claim here. We conclude that LUTSA 

preempts a common-law claim for conversion of trade secrets, but does not 

preempt a common-law conversion claim for confidential information that is 

not a trade secret.

Because the Louisiana Supreme Court has not decided this issue, we 

must make an “Erie3 guess” as to how it would do so. In re Katrina Canal 

Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007). We look first to Louisiana’s 

primary sources of law—here, LUTSA—and then to the decisions of state 

intermediate courts. Id. “[A]lthough we will not disregard the decisions of 

Louisiana’s intermediate courts unless we are convinced that the Louisiana 

Supreme Court would decide otherwise, we are not strictly bound by them.” 

Id. 

LUTSA’s preemption provision states:

A. This Chapter displaces conflicting tort, restitutionary, 

and other laws of this state pertaining to civil liability 

for misappropriation of a trade secret.

B. This Chapter does not affect:

 

3 Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

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(1) contractual or other civil liability or relief that is not 

based upon misappropriation of a trade secret, or

(2) criminal liability for misappropriation of a trade 

secret.

LA. STAT. ANN. § 51:1437. Official commentary to the statute explains that 

LUTSA “applies to duties imposed by law in order to protect competitively 

significant secret information.” Id. cmt. (1981) (Louisiana Official Revision 

Comments). But it does not apply to contractual duties or to “duties imposed 

by law that are not dependent upon the existence of competitively significant 

secret information, such as an agent’s duty of loyalty.” Id. A claim for 

conversion of trade secrets plainly seeks protection of competitively significant 

information. Thus, we conclude that the plain text of LUTSA would preclude 

a common-law conversion claim involving confidential information that 

qualifies as a trade secret under LUTSA. 

We also conclude that if confidential information that is not a trade 

secret is nonetheless stolen and used to the unjust benefit of the thief or 

detriment of the victim, then a cause of action remains under Louisiana 

common law. LUTSA’s uniformity provision instructs that LUTSA “shall be 

applied and construed to effectuate its general purpose to make uniform the 

law with respect to the subject of this Chapter among states enacting it.” LA.

STAT. ANN. § 51:1438. But courts interpreting their respective states’ versions 

of the Uniform Trade Secret Act (“UTSA”) have not uniformly applied UTSA’s 

preemption provision; instead, courts have come to varying conclusions about 

the preemption provision’s intended scope.4 Thus, because there is not enough 

 

4 See Spitz v. Proven Winners N. Am., LLC, 759 F.3d 724, 733 (7th Cir. 2014) 

(concluding that Illinois’s UTSA preempts claims “that are essentially claims of trade secret 

misappropriation, even when the alleged ‘trade secret’ does not fall within the Act’s 

definition”); Unique Paving Materials Corp. v. Fargnoli, 361 F. App’x 689, 690 (6th Cir. 2010)

(affirming without analysis the district court’s conclusion that Ohio’s UTSA preempted 

claims for “conversion, misappropriation of trade secrets, tortious interference, and unfair 

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uniformity among states to predict how the Louisiana Supreme Court would 

decide the issue, we look to intermediate state court decisions. See In re 

Katrina, 495 F.3d at 206.

The Louisiana appellate courts have twice held that LUTSA does not 

preempt where non-trade secret information was at issue.5 See B&G Crane 

 

competition”); C&F Packing Co. v. IBP, Inc., 224 F.3d 1296, 1307–08 (Fed. Cir. 2000) (holding 

that Kansas’s UTSA preempted a fraud claim where it was “indistinguishable from [the 

plaintiff’s] trade secret misappropriation” claim); Omnitech Int’l, Inc. v. Clorox Co., 11 F.3d 

1316, 1330 (5th Cir. 1994) (concluding that LUTSA preempted a fiduciary duty claim 

“grounded in . . . trade secret allegations”); Integrated Direct Mktg., LLC v. May, 495 S.W.3d 

73, 76 (Ark. 2016) (concluding that “intangible property, such as electronic data, standing 

alone and not deemed a trade secret, can be converted”); Am. Biomedical Grp., Inc. v.

Techtrol, Inc., 374 P.3d 820, 827 (Okla. 2016) (holding that Oklahoma’s UTSA preempts 

“conflicting tort claims only for misappropriation of a trade secret” and “does not displace tort 

claims for information not meeting this definition” (internal quotation marks and citation 

omitted)); Orca Commc’ns Unlimited, LLC v. Noder, 337 P.3d 545, 547 (Ariz. 2014)

(concluding that the state’s UTSA “leaves undisturbed claims that are not based on 

misappropriation of a trade secret,” including claims for misuse of confidential information 

(internal quotation marks omitted)); Robbins v. Supermarket Equip. Sales, LLC, 722 S.E.2d 

55, 58 (Ga. 2012) (concluding that Georgia’s UTSA did not except from its scope claims for 

“the misappropriation of proprietary or confidential information”); BlueEarth Biofuels, LLC 

v. Hawaiian Elec. Co., 235 P.3d 310, 323 (Haw. 2010) (concluding that Hawaii’s UTSA 

preempts common law claims for misappropriation of trade secrets and other confidential 

information); Burbank Grease Servs., LLC v. Sokolowski, 717 N.W.2d 781, 793–94 (Wis. 2006)

(holding that Wisconsin’s UTSA “leave[s] available all other types of civil actions that do not 

depend on information that meets the statutory definition of a ‘trade secret’”); Savor, Inc. v. 

FMR Corp., 812 A.2d 894, 898 (Del. 2002) (concluding that Delaware’s UTSA preempted 

common law unfair competition and conspiracy claims where they were based on the same 

alleged wrongful conduct as the trade secret claims); Mortg. Specialists, Inc. v. Davey, 904 

A.2d 652, 664 (N.H. 2006) (“[T]he [New Hampshire UTSA] preempts claims that are based 

upon the unauthorized use of information, regardless of whether that information meets the 

statutory definition of a trade secret.”); Frantz v. Johnson, 999 P.2d 351, 357–58, 357 n.3 

(Nev. 2000) (concluding that Nevada’s UTSA preempted various common law tort claims that 

“arose from a single factual episode, namely misappropriation of bidding and pricing 

information”); Weins v. Sporleder, 605 N.W.2d 488, 491 (S.D. 2000) (concluding that South 

Dakota’s UTSA “prevents a plaintiff from merely restating their trade secret claims as 

separate tort claims”); Fred’s Stores of Miss., Inc. v. M & H Drugs, Inc., 725 So. 2d 902, 908 

(Miss. 1998) (concluding that the state’s UTSA only preempts claims that would fall with a 

failed UTSA claim).

5 Both of these cases concern breach of fiduciary duty claims, an area specifically 

excepted from LUTSA’s preemption provision. We see no reason, however, that Louisiana 

courts would think differently about a conversion claim.

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Serv., L.L.C. v. Duvic, 935 So. 2d 164, 166–67 (La. Ct. App. 2006); Defcon, Inc. 

v. Webb, 687 So. 2d 639, 642–43 (La. Ct. App. 1997) (holding that LUTSA does 

not preempt breach of fiduciary duty claims for misappropriation of 

confidential information, as the statutory comments “make it clear that the Act 

. . . does not apply to duties . . . that are not dependant [sic] upon the existence 

of a trade secret”). These cases appear consistent with the plain text and stated 

purpose of LUTSA’s preemption provision: to preempt tort claims “pertaining 

to civil liability for misappropriation of a trade secret,” LA. STAT. ANN.

§ 51:1437, which the official commentary explains limits LUTSA’s preemption

to other laws that “protect competitively significant secret information,” id. 

cmt. (1981) (Louisiana Official Revision Comments). Because Defcon and B&G 

Crane support the plain-text reading of LUTSA’s preemption provision, we 

conclude that LUTSA does not preempt common-law claims for conversion of 

information that does not constitute a trade secret under LUTSA. Thus, we 

REVERSE the district court’s judgment on Brand Services’s common-law claim 

for conversion of confidential information outside the definition of a trade 

secret without reaching the merits of that claim.

V. Conclusion

For the foregoing reasons, we REVERSE the district court’s judgment as 

to Brand Services’s LUTSA claim and its common law claim for conversion of 

allegedly non-trade secret information and REMAND for further consideration 

in light of this opinion. We AFFIRM the summary judgment as to the common 

law claim for conversion of trade secret information.

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