### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 60184 Summary Calendar

HANSAWORLD USA, INCORPORATED, a California corporation,

Plaintiff

- Appellant

v. DAMON G. CARPENTER, an individual,

Defendant

- Appellee

Appeal from the United States District Court for the Southern District of Mississippi U S D C No. 2:15

- CV

- 73

Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges

. PER CURIAM: * Plaintiff

- Appellant HansaWorld USA, Inc. (“HansaWorld”) brought claims of civil conspiracy and violations of Florida’s Civil Remedies for Criminal Practice Act, F LA

. S TAT

. § 772.101 (“Florida RICO”) against Defendant

- Appellee Damon Carpenter (“Carpenter”) . Thereafter, HansaWorld moved to amend its complaint, at tempting to add civil Racketeer Influenced

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 20, 2016

Lyle W. Cayce Clerk Case: 16-60184 Document: 00513727199 Page: 1 Date Filed: 10/20/2016No. 16

- 60184

2 and Corrupt Organizations Act, 18 U.S.C. § 1964(c)

– (d) (“Federal RICO”) and malicious interference claims, which the district court denied as futile. After discovery , the U.S. District Court for the Southern Dist rict of Mississippi granted Carpenter ’s m oti on for summary j udgment , dismissing HansaWorld’s
claims

. HansaWorld now appeals. We AFFIRM.
I. BACKGROUND HansaWorld’s former employee, Kimberlee Davenport (“Davenport”), hired Carpenter as her attorney after HansaWorld terminated her employment. Thereafter, Carpenter represented Davenport for approximately two weeks “for the purpose of negotiating with [HansaWorld] . . . to secure the most favorable terms possible resulting from [her] departure from that empl oyment.” HansaWorld alleges that during the course of her relationship with Carpenter, Davenport attempted to extort HansaWorld and unlawfully converted its property. After winning its case against Davenport, HansaWorld sought judg ment against Carpenter in connection with his representation of Davenport.
HansaWorld initially brought the instant matter in a Florida state court in February 2015. Carpenter then removed the case to the U.S. District Court for the S outhern Distric t of Florida, which on Carp enter’s motion, transferred
the case to the court below in May 2015. In its original complaint, HansaWorld brought Florida RICO and civil conspiracy claims, alleging that Carpenter conspired with Davenport to extort payments from it by : (1) making false employment discrimination and income tax withholding allegations, (2) conspiring with Davenport to shut down HansaWorld’s phone lines, and (3) advising Davenport to delay returning the company car. On October 1, 2015, the district court denied HansaWorld leave to amend its complaint to include Case: 16-60184 Document: 00513727199 Page: 2 Date Filed: 10/20/2016No. 16

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3 charges of malicious interference with business relations and Federal RICO
claims , finding that it had not pleaded a prima facie case for either claim

. 1 On March 8, 2016, the district court granted Carpenter’s m oti on for summary j udgment, finding that HansaWorld could not establish a n enterprise or pattern of continuing racketeering activity and had failed to show that Carpenter’s actions went beyond the scope of his representation or that he had any personal stake in the outcome of Davenport’s dispute with HansaWorld. HansaWorld filed this appeal.
II. STANDARD OF REVIEW This court ordinarily reviews a district court’s denial of a motion for leave to amend a complaint for an abuse of discretion. City of Clinton v. Pil grim’s Pride Corp. , 632 F.3d 148 , 152 (5th Cir. 2010). If, however, the court below denied the motion “based solely on futility, we app ly a de novo standard of
review identical, in practice, to the standard used for reviewing a dismissal under Rule 12(b)( 6).” Id. ( citing Wilson v. Bruks

- Klockner, Inc. , 602 F.3d 363, 368 (5th Cir. 2010 ) ). Under a Rule 12(b)(6) analysis, a complaint must allege enough facts that , if tak en as true , “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). A complaint that contains no more than “a formulaic recitation of the elements” or presents a “legal conclusion couched as a factu al allegation ” is insufficient. Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Two mbly , 550 U.S. at 555). Similarly, w hen review ing a district court ’ s grant of summary judgment, we review the district court’s ruling de novo

. Robinson v. Orient Marine Co. ,

1 Although the district court denied HansaWorld leave to add these two new allegation s, pursuant to the same motion, the court did grant HansaWorld leave to amend its complaint as it related to its Florida RICO allegations, including leave to add any additional facts in support thereof. Case: 16-60184 Document: 00513727199 Page: 3 Date Filed: 10/20/2016No. 16

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4 505 F.3d 364, 365 (5th Cir. 2007) (citation omitted). Summary judgment is

warra nted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. F ED

. R. C IV

. P

. 56 (a) ; Robinson , 505 F.3d at 366 (citation omitted) . “Unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.” Brown v. City of Houston , 337 F.3d 539, 541 (5th Cir. 2003) (citation omitted). “[R]easonable inferences are to be drawn in favor of the non

- moving party.” Robinson , 505 F.3d at 366 (citation omitted).
III. DISCUSSION HansaWorld raises two issues on appeal. First, it asserts that the district court erred when it denied HansaWorld’s motion to amend its complaint to inc lude a malicious interference with business relations claim

. Second, HansaWorld allege s that the district court erred when it granted summary judgment in favor of Carpenter on HansaWorld’s Florida civil conspiracy claim

. Both issues are discussed in turn

. 2 A. HansaWorld first argues that the district court erred when it denied HansaWorld’s motion for leave to include a malicious interference with
business rela tions claim against Carpenter

. We disagree

. In Mississippi, 3 a prima facie case for malicious interference requires a plaintiff to show that a person “engage[d] in some act with a malicious intent

2 HansaWorld does not appeal the district court’s di smissal of its Federal or Florida RICO claim s

. 3 In the court below, Carpenter argued that Mississippi law, not Florida law, should apply to this c ase. The district court found thro ugh a conflict of laws analysis that Florida law controlled. T he parties did not dispute , however, that Mississippi law applied to HansaWorld’s malicious interference claims; thus, the district court applied Mississippi law to that claim. Because this issue is not before the court, we apply, as the district court did, Mississ ippi law to HansaWorld’s malicious interference claims and Florida law to HansaWorld’s civil conspiracy claims. See Ferguson v. FDIC , 164 F.3d 894, 897 (5th Cir. 1999) (citing Kucel v. Walter E. Heller & Co. , 813 F.2d 67, 74 (5th Cir. 1987)); Wellogix, Inc. Case: 16-60184 Document: 00513727199 Page: 4 Date Filed: 10/20/2016No. 16

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5 to interfere [with] and injure the business of another, and injury does in fact
result .” Par Indus. v. Target Containe r Co. , 708 So.2d 44, 48 (Miss. 1998) (emphasis added) (quoting Cenac v. Murry , 609 So.2d 1257, 1271 (Miss. 1992)). The district court found that HansaWorld failed to allege it suffered any injury as a result of Carpenter’s actions. On appeal, HansaWorld argues that in stating in its original complaint that “ Davenport adversely impacted [HansaWorld’s] ability to conduct business and its relationships with customers and partners” suffices to meet the injury in fact requirement. Not
so. Even construed libe rally, this allegation cannot overcome 12(b)(6)’s low bar,

as it is merely “a formulaic recitation of the elements of a cause of action.” Richardson v. Axion Logistics, L.L.C. , 780 F.3d 304, 306 (5th Cir. 2015) (quoting Twombly , 550 U.S. at 555)). B ecause HansaWorld failed to allege facts establishing a prima facie case for this claim, the district court’s refusal to grant HansaWorld leave to amend was proper. See Stripling v. Jordan Prod. Co. , 234 F.3d 863, 872

– 73 (5th Cir. 2000) (“It is within the district court’s discretion to deny a motion to amend if it is futile.”). Accordingly, we find that the district court did not err in denying HansaWorld’s motion to amend.
B.
We now turn to HansaWorld’s argument that the district court err ed when it granted Carpenter’s motion for summary j udgment

. Under Florida law, an attorney cannot be found to have conspired with his client if his alleged bad conduct took place within the scope of his

re pre sentation and he does not have a personal stake in the matter, separate and distinct from his client’s interest

. Lipsig v. Ramlawi , 760 So.2d 170, 181 (Fla. Dist. Ct. App. 2000) ( holding that because “ all of [the defendant’s]

v. SAP Am., Inc. , 58 F. Supp. 3d 766, 775 (S.D. Tex. 2014), aff’d , No. 15

- 20184, 2016 WL 2772280 (5th Cir. May 12, 2016). Case: 16-60184 Document: 00513727199 Page: 5 Date Filed: 10/20/2016No. 16

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6 activities were within the sco pe of his agency as the . . . family attorney ” and the defendant had no personal stake in the matter, he was entitled to a directed verdict on the plaintiff’s civil conspiracy claim ) ; see also Rivers v. Dillards D ep’t Store, Inc. , 698 So.2d 1328, 1333 (Fla. D ist. C t. A pp. 1997) (“ [A] bsen t allegations that an employee acted in a personal capacity apart from his employee status, [a] corporation cannot consp ire with its own . . . employees.” (citation omitted)). Here, reviewing the facts in the light mos t favorable to HansaWorld, Carpenter’s actions fell squarely within the confines of his employment relationship with Davenport. HansaWorld’s assertion that Carpenter exceeded the scope of his employment by “conspiring wit h Davenport to commit crimes” is speculative and unsupported by the record

. Brown , 337 F.3d at 541

. Moreover , Carpenter did not have a pers onal stake in Davenport’s wrong doing , an issue HansaWorld fails to dispute on appeal . Finally, HansaWorld’s argument that Carpenter’s relationship with Davenport created a “particular power of coercion . . . [that] an individual acting alone does not possess” also fails because
the alleged bad acts that Davenport committed could have been done with or without Carpenter’s assistance

. Accordingly, w e conclude that because HansaWorld has not shown that Carpenter exceeded the scope of his representation or had a personal stake in Davenport’s dispute with HansaWorld, the district court did not err in granting summary judgment in favor of Carpenter.
IV. CONC LUSION
For the reasons stated above , we AFFIRM the district court’s rulings in full

. Case: 16-60184 Document: 00513727199 Page: 6 Date Filed: 10/20/2016