* 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. 08-30333

Summary Calendar

BANK OF LOUISIANA

Plaintiff-Appellant

v.

SUNGARD AVAILABILITY SERVICES, LP

Defendant-Appellee

Appeal from the United States District Court for the

Eastern District of Louisiana

USDC No. 2:07-CV-01228

Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.

PER CURIAM:*

The Bank of Louisiana appeals the grant of summary judgment for

SunGard on the Bank’s breach of contract claim and SunGard’s counter-claim

for unpaid invoices. Because the district court’s decision displays no reversible

error of law or fact, we affirm. The district court’s opinion adequately presents

its reasoning and the relevant facts, and we write here merely to amplify three

points.

United States Court of Appeals

Fifth Circuit

F I L E D

January 23, 2009

Charles R. Fulbruge III

Clerk
No. 08-30333

2

First, the Bank of Louisiana insists that SunGard told Peggy Schaefer that

she would have to ship either the missing back-up tapes or the bank’s

prohibitively heavy computer to SunGard’s facilities in Smyrna, Georgia, and

that SunGard would not provide any other assistance. If true, such an

ultimatum might be evidence that SunGard breached its contract with the Bank

to provide any of four different types of “Mobile Recovery Services.” However,

the Bank does not cite any evidence that a SunGard employee made this

statement and failed to provide an affidavit claiming that this evidence exists.

Instead, the Bank merely reiterates that this statement was made. 

Second, the Bank argues that SunGard was contractually obliged to be

“proactive” and that SunGard’s failure to suggest other recovery methods

constituted breach of contract. Again, as the district court noted, the Bank does

not point to evidence that it asked SunGard for Mobile Recovery Services

covered by the contract, but not contemplated by the bank’s disaster recovery

plan, nor did the Bank submit an affidavit claiming that this evidence exists.

These two assertions are not evidence, and the Bank’s claims, without

more, are insufficient to show genuine issues of material fact. See Douglass v.

United States Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996). Because the Bank

fails to cite evidence that SunGard issued the alleged ultimatum or refused to

provide contractually required services, SunGard is entitled to a judgment as a

matter of law that it did not breach the contract.

Finally, because SunGard is not liable for breach, the Bank did not have

cause to terminate the contract. The Bank argues that the contract fails for lack

of “consideration” because the Bank altered its operations, making SunGard’s

services unnecessary. This argument mischaracterizes as consideration a

party’s benefit received under a contract for services performed. It is basic

contract law—including in Pennsylvania, this contract’s choice of law—that

consideration is a bargained for performance or return promise required at the
No. 08-30333

3

time of contractformation. U.S.Steel Corp. v. Unemployment Compensation Bd.

of Review, 858 A.2d 91, 105-06 & n.5 (Pa. 2004) (citing Restatement 2d of

Contracts § 71 (1981)). The contract between the Bank and SunGard is a valid

one, and the Bank does not argue otherwise. The Bank’s “consideration”

argument as a justification for non-performance is therefore misplaced.

Instead, the Bank is really claiming that it was justified in withholding

payment because the contract was no longer in its interest. Obviously, this is

not a legal excuse for non-performance of contractual obligations. See

Restatement 2d of Contracts §§ 261-72 (1981) (describing established excuses of

performance). The Bank’s failure to pay SunGard is therefore a breach of the

contract for which the Bank was correctly required to pay damages.

AFFIRMED.