* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30845

BRYANT HODGES; PEGGY COOPER

Plaintiffs – Appellants

v.

MOSAIC FERTILIZER LLC, formerly known as IMC-Agrico Company,

formerly known as Mosaic Phosphates Company

Defendant – Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:05-CV-5201

Before JONES, Chief Judge, and WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:*

Bryant Hodges and Peggy Cooper (“Appellants”) challenge the district

court’s dismissal on summary judgment of their state law spoliation of evidence

claim against Mosaic Fertilizer LLC (“Mosaic”). Because the court’s judgment

is supported by the record, we AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

July 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-30845

2

BACKGROUND

On August 8, 2005, Appellants, who were employees of Brand Scaffold

Builders, Inc.(“Brand Scaffolding”), were injured while working for Mosaic atits

fertilizer plant in St. James Parish, Louisiana. They were erecting scaffolding

near sulfuric acid feed pumps when the lanyard connected to Hodges’s safety

harness got caught on the lever of a ball valve and pulled the valve open. The

ball valve had been placed in the closed position to isolate a broken pressure

gauge that had been leaking sulfuric acid. When the lanyard pulled the valve

open, sulfuric acid began spraying in the area of the pumps and the scaffolding.

The acid sprayed on Appellants and burned them.

After this accident occurred, the ball valve that opened was removed and

replaced with a new valve. Mosaic has been unable to produce the valve that

was removed. During a deposition, Mosaic’s maintenance manager, Jeffrey

Roussel, testified that he did not know what happened to the valve after it was

removed, but that Mosaic normally discards such valves after they are removed.

He stated that, at the time the valve was removed, he did not recognize a need

to keep it. Roussel also testified that he was not aware that anyone at Mosaic

did anything to retain the valve.

Appellants received worker’s compensation benefits, including wages and

medical expenses, from their employer, Brand Scaffolding. On September 26,

2005, Appellants also filed a tort suit for damages against Mosaic in Louisiana

state court. Mosaic removed the case to federal district court. In federal court,

Appellants supplemented their complaint by adding state law claims of

intentional tort and spoliation of evidence. On May 17, 2007, Mosaic filed a

motion for summary judgment, which the court granted.

In its order granting summary judgment,the district court concluded that

Mosaic was Appellants’ statutory employer under the Louisiana Workers

Compensation Act (“LWCA”), LA. REV. STAT. ANN. § 23:1021, et. seq., and,
No. 07-30845

3

therefore, immune from tort liability for their injuries. The court recognized

that the LWCA does not shield an employer from tort liability for intentionally

injuring an employee, but it concluded that Appellants failed to show, using

proper summary judgment evidence, that a genuine issue of material fact existed

as to whether Mosaic committed an intentional tort. The court also dismissed

Appellants’ spoliation of evidence claim, noting in a footnote that “[b]ecause

summary judgment has been granted in favor of Mosaic, the plaintiffs have no

tort cause of action against Mosaic. Therefore, the plaintiffs’ last claim for

damages based on Mosaic’s alleged spoiliation [sic] of evidence is dismissed as

moot.”

On July 13, 2007, Appellants filed a motion for reconsideration, which the

district court correctly treated as a motion to alter or amend judgment under

Federal Rule of Civil Procedure 59(e). In their motion, Appellants did not

contest the district court’s dismissal of their negligence and intentional tort

claims. Instead, Appellants argued that their spoliation of evidence claim should

not have been dismissed because it was an independent cause of action. The

court denied the motion, concluding that Appellants were merely attempting to

re-litigate Mosaic’s motion for summary judgment. But the court did clarify its

order granting summary judgment by stating that it recognized that a claim of

spoliation of evidence “may stand alone at times as an independent cause of

action in tort for economic damages; however, the facts of this case do not

support such a claim.”

In their brief on appeal, Appellants argue only one issue: whether the

district court erred by dismissing on summary judgment their state law tort

claim for the intentional spoliation of evidence.

STANDARD OF REVIEW

This court reviews a district court’s order granting summary judgment

de novo, viewing all evidence in the light mostfavorable to the non-moving party
No. 07-30845

4

and drawing all reasonable inferences in that party’s favor. Pierce v. Dep’t of

U.S. Air Force, 512 F.3d 184, 186 (5th Cir. 2007). Summary judgment is

appropriate when the evidence reflects no genuine issues of material fact and the

non-moving party is entitled to judgment as a matter of law. Id. The moving

party has the initial responsibility of identifying the pleadings and evidence

which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986). If the

moving party meets this burden, the non-moving party must “identify specific

evidence in the record, and . . . articulate the ‘precise manner’ in which that

evidence support[s] [its] claim[s].” Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.

1994).

The non-moving party cannot satisfy its summary judgment burden with

“some metaphysical doubt as to the material facts, by conclusory allegations, by

unsubstantiated assertions, or by only a scintilla of evidence.” Little v. Liquid

Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (internal quotation marks

and citations omitted). If no reasonable juror could find for the non-moving

party, summary judgment will be granted. Miss. River Basin Alliance v.

Westphal, 230 F.3d 170, 174 (5th Cir. 2000).

DISCUSSION

Appellants ask this court to recognize an independent tort for the

intentional destruction of evidence for the purpose of depriving an opposing

party of its use. Because our jurisdiction in this case is based on diversity of

citizenship, we apply Louisiana law. See Erie R. Co. v. Tompkins, 304 U.S. 64,

58 S. Ct. 817 (1938). In their brief on appeal, Appellants cite a single case from

an intermediate state appellate court to support their argument. See Pham v.

Contico Int’l, Inc., 759 So. 2d 880, 882 (La. Ct. App. 2000). The Louisiana

Supreme Court has yet to address whether: (1) Louisiana law recognizes an

independent tort for the intentional spoliation of evidence, or (2) whether the
No. 07-30845

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LWCA would preclude an employee from bringing such a tort claim against his

employer.

If the Louisiana Supreme Court has not ruled on an issue, then this court

makes an “Erie guess” to “determine as best it can” what that court would

decide. Howe ex rel. Howe v. Scottsdale Ins. Co., 204 F.3d 624, 627 (5th Cir.

2000) (citations omitted). But we need not make an Erie guess here, because

even if the Louisiana Supreme Court decided that an employee may bring an

independent tort claim against his employer for the intentional spoliation of

evidence, Appellants’ claim would not survive summary judgment.

On review of pertinent portions ofthe record, we conclude that Appellants

have failed to carry their burden of presenting evidence that shows the existence

of a genuine issue of material fact as to spoliation of evidence. Appellants argue

that Mosaic intentionally destroyed the valve at issue for the purpose of

depriving them of its use. But Appellants cite no evidence, other than their mere

allegation, that tends to show that Mosaic intentionally destroyed the valve for

that reason. Therefore, the district court correctly dismissed on summary

judgment Appellants’ spoliation of evidence claim. See Burge v. St. Tammany

Parish, 336 F.3d 363, 373-74 (5th Cir. 2003) (Louisiana plaintiff presented no

evidence that defendant intentionally destroyed evidence for the purpose of

depriving plaintiff of its use).

CONCLUSION

For the reasons stated, we AFFIRM the district court’s judgment.