* 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. 07-10130

BARNEY HOLLAND OIL COMPANY,

Plaintiff-Appellant,

v.

FLEETCOR TECHNOLOGIES, INC 

FLEETCOR TECHNOLOGIES OPERATING COMPANY, LLC, 

Defendants-Appellees.

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:06-CV-183

Before JONES, Chief Judge, and GARWOOD and JOLLY, Circuit Judges.

PER CURIAM:*

Appellant challenges the district court’s grant of summary judgment on

its breach-of-contract and tort claims, arguing that the district court erred by

(1) prematurely ending discovery; (2) concluding there were no disputed issues

of material fact; and (3) concluding appellee had not terminated the parties’

license agreement. Because the district court’s judgment is supported by the

record, we AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

April 23, 2008

Charles R. Fulbruge III

Clerk
No. 07-10130

2

BACKGROUND

Defendant-appellees FleetCor Technologies, Inc. and FleetCor

Technologies Operating Company, LLC (collectively “FleetCor”), own and

operate a fuel-management system under the name “Fuelman” marketed to

businesses and government entities that operate fleets of vehicles. FleetCor

provides Fuelman cards to participating fleet owners to give to their drivers.

The cards function like normal credit cards and can be used to purchase fuel and

maintenance services at thousands of merchants around the country that have

agreed to accept the Fuelman card. But unlike normal credit cards, Fuelman

cards have a number of built-in limitations, called “pre-purchase controls,” on

how they can be used. Fleet-owners generally set limits on what can be

purchased with Fuelman cards, as well as permissible locations for purchase.

For instance, a fleet-operator could limit the Fuelman card’s use to a specified

grade of a gasoline at a particular gasoline vendor such as ExxonMobil. Not

surprisingly, the Fuelman system’s chief selling point is the ability to prevent

drivers and employees from using company resources to purchase lottery tickets,

beer, cigarettes, or even gasoline for their personal vehicles.

FleetCor originally marketed Fuelman indirectly through licensees in 30

territories and directly in three territories. Each licensee was responsible for

developing client relationships with both merchants and fleet owners, but

FleetCor continued to operate the computer system that processed the purchases

made with the Fuelman card. Each licensee was given the exclusive right to

market the Fuelman system in its assigned territory.

One original licensee, plaintiff-appellant Barney Holland Oil Co.

(“BHOC”), was licensed to marketthe Fuelman system in the Dallas/Fort Worth

(“DFW”) area. Although BHOC was originally a licensee of Gascard, one of
No. 07-10130

3

FleetCor’s competitors, FleetCor purchased Gascard in 1995 and entered into a

Bridging Agreement with BHOC to continue the relationship. A License

Agreement was later implemented with the earlier Bridging Agreement in mind.

The Bridging Agreement contains a “favored nations” provision that affects the

Fuelman system License Agreement by allowing BHOC to incorporate favorable

provisions in other licensing agreements into its own License Agreement. The

“favored nations” provision (“FNP”) is an important component ofthis litigation.

In 2001, FleetCor decided to increase its direct marketing and began to

terminate the exclusive Fuelman licenses around the country and convert those

to direct markets. FleetCor has since terminated all of the 30 licenses it

originally issued except for that of BHOC. After extensive negotiations in 2002,

the parties were unable to reach any agreementto end BHOC’s Fuelman license.

BHOC continues successfully to market the Fuelman system in the DFW area,

and has clients including retail service stations and unattended fuel sites

(“merchants”), and commercial fleet owners, municipalities, and school districts

(“customers”). BHOC has long-term contracts with some of these entities.

In January 2006, BHOC sued FleetCor in Texas state court alleging

FleetCor breached its License Agreement, de facto terminated the License

Agreement, and tortiously interfered with its business relationships. FleetCor

removed the case to the Northern District of Texas and later moved for summary

judgment on all of BHOC’s claims. BHOC moved to compel production of

documents, and sought FleetCor’s licensing agreements with other Fuelman

licensees. BHOC filed a second motion to compel release of documents related

to damages. On November 28, 2006, the district court granted BHOC’s motions

in part, ordering FleetCor to produce the relevant licensing agreements by

December 18, 2006. On December 27, 2006, BHOC filed a motion for sanctions
No. 07-10130

1 The transcript of this hearing is not in the record.

4

arguing that the license agreements FleetCor produced were incomplete. The

district court denied the motion because, according to FleetCor,the court agreed

during the telephone hearing that FleetCor produced every page of every

agreement it could locate.1

On December 28, 2006, the district court granted FleetCor’s motion for

summary judgment on all of BHOC’s claims exceptits claim related to FleetCor’s

modification of the “pre-purchase controls.” BHOC elected to dismiss the

remaining claim with prejudice and appeal the summary judgment.

DISCUSSION

This court reviews a district court’s grant of summary judgment de novo.

Morris v. Equifax Info. Servs., L.L.C., 457 F.3d 460, 464 (5th Cir. 2006).

Summary judgment is appropriate when, after considering the pleadings,

depositions, answers to interrogatories, admissions on file, and affidavits,“there

is no genuine issue as to any material fact and . . . the moving party is entitled

to a judgment as a matter of law.” FED. R. CIV.P. 56(c); Bulko v. Morgan Stanley

DW Inc., 450 F.3d 622, 624 (5th Cir. 2006). The moving party has the initial

burden of showing there is no genuine issue of material fact. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256 (1986). The movant may discharge this burden

by pointing out the absence of evidence to support one or more essential

elements of the non-moving party’s claim “since a complete failure of proof

concerning an essential element of the nonmoving party’s case necessarily

renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986).

I. Discovery
No. 07-10130

2 The Seventh Circuit has concluded in a similar case involving a favored-nations

provision that “Rule 56 does not require that discovery take place in all cases before summary

judgment can be granted.” Waterloo Furniture Components, Ltd. v. Haworth, Inc., 467 F.3d

641, 648 (7th Cir. 2006). It further stated, “the fact that discovery is not complete — indeed

has not begun — need not defeat a motion for summary judgment. Thus, the mere fact that

the district court granted [defendant’s] summary judgment motion prior to allowing any

discovery is irrelevant.” Id. (internal citation and quotations omitted).

5

BHOC makes two principal arguments why the district court’s decision to

end discovery and rule on FleetCor’s Motion for summary judgment was an

abuse of discretion. Each will be dealt with in turn.

Generally, summary judgment may be granted only after an “adequate

time for discovery.” Catrett, 477 U.S. at 322. The courts of appeal generally

review for abuse of discretion a claim that summary judgment was prematurely

entered because additional discovery was needed. Paul Kadair, Inc. v. Sony

Corp. of Am., 694 F.2d 1017, 1029 (5th Cir. 1983). A plaintiff’s entitlement to

discovery prior to a ruling on a motion for summary judgment is not unlimited,

and may be cut off when the record shows that the requested discovery is not

likely to produce the facts needed by plaintiff to withstand a Rule 56(e) motion

for summary judgment.2Id. at 1029-30. And district courts have broad

discretion to enforce the integrity of pretrial scheduling orders. Turnage v.

General Elec. Co., 953 F.2d 206, 208 (5th Cir. 1992).

A. Undiscovered licensing provisions

First, BHOC argues that the district court abused its discretion by

prematurely ending discovery before BHOC could adequately review the

documents FleetCor was compelled to produce. Thus, BHOC argues, the court

was not aware of the full extent of FleetCor’s contractual obligations when it

ruled on FleetCor’s Motion for summary judgment. In other words, because
No. 07-10130

6

BHOC did not have an opportunity to comb through other Fuelman licensing

agreements for favorable provisions it could have incorporated into its own

License Agreement, the district court did not know the full scope of FleetCor’s

contractual obligations and, therefore, it was premature to rule on FleetCor’s

motion for summary judgment.

The district court ruled, however, on the only three licensing provisions

that BHOC had already sought to incorporate into its License Agreement. After

finding that these provisions yielded no benefit to BHOC, the district court

concluded that others were unlikely to do so either. The court’s refusal to await

further revelations from BHOC’s review of other franchisees’ licensing

agreements was not done to prejudice BHOC, nor did it do so. The court

specifically concluded its discussion of the three proffered provisions by noting

that:

Such an adjudication [against BHOC] will be without prejudice to

the right the court has concluded that plaintiff has to receive from

FleetCor on requestfor review license agreements between FleetCor

and other licensees, see Epic Sys. Corp. v. Allcare Health Mgmt.,

2002 WL 31051023 (N.D. Tex. 2002), and to urge that it is entitled

to the benefit of any more favorable terms and provisions of which

plaintiff learns as a result of such review or by other means.

(emphasis added); (footnote omitted).

The district court’s decision to rule follows closely the mid-January 2007

discovery deadline as stated in its original scheduling order. Turnage, 953 F.2d

at 208. Furthermore, BHOC’s failure to make a Rule 56(f) motion prior to

summary judgment, object to the district court’s action, or ask for a rehearing

of FleetCor’s Motion for summary judgment “indicates that [appellant] had no

further evidence to present or argumentto make regarding any material dispute

of fact.” Exxon Corp. v. St. Paul Fire and Marine Ins. Co., 129 F.3d 781, 786–87
No. 07-10130

3 By not ruling on the applicability of the FNP, the district court aided BHOC by not

prejudicing its possible future claims against FleetCor.

4 The relevant provision states: 

7

(5th Cir. 1997). We also note that although nine days is not a lot of time to comb

through 1,000 pages of documents, it is certainly sufficient. Had BHOC found

anything truly beneficial in the documents, it could have made the

aforementioned motion. In fact, BHOC was not precluded from referring to any

additional favorable contract provisions in its brief to this court, for the purpose

of demonstrating prejudice from the district court’s prompt ruling. Based on all

these considerations, the district court did not abuse its discretion by ending

discovery of unincorporated provisions and ruling on FleetCor’s Motion for

summary judgment.

B. “Incorporated” provisions

BHOC next contends that the court abused its discretion by prematurely

ending discovery related to the WESCO provision it claimed to incorporate into

its License Agreement. BHOC’s argument initially depends upon the effect of

the Bridging Agreement’s FNP, which must be established before BHOC can

incorporate any provisions from other agreements. However, the district court

declined to rule on whether the FNP was applicable; it simply assumed

applicability for the purpose of its analysis.3 BHOC’s contention that the district

court essentially rejected FleetCor’s contention that the FNP did not apply is

thus inaccurate. Instead, the district court concluded that neither the WESCO

nor other cited provisions could be construed to lend any benefit to BHOC.

Further, the district court concluded that BHOC had not produced any evidence

related to a breach of the “WESCO” “new products and services” provision4
No. 07-10130

Exclusive Rights to New Products/Services. Marketer will have the exclusive

rights to market in the Licensed Territory new products and services offered by

Licensor. Neither the Licensor nor anyone acting on its behalf will circumvent

Marketer to market directly to their customers.

5

It would be imprudent to construe the License Agreement because the parties did not

brief the issue.

8

through FleetCor’s MasterCard and FleetAll fuel cards, and that FleetCor’s

Commercial Fuel Network (“CFN”) business was not a “new product or service”

under the provision.

Like the district court, we need not construe the License Agreement5 and

determine the applicability of the FNP because we agree, infra, that BHOC has

produced no evidence that FleetCor has breached the WESCO provision by

competing in the DFW area. It was within the court’s discretion to rule on

FleetCor’s Motion for summary judgment based on its conclusion that the three

licensing agreements submitted into evidence did not contain any favorable

provisions for BHOC that would defeat summary judgment, and because BHOC

submitted no evidence of breach. Paul Kadair, Inc., 694 F.2d at 1029-30.

II. FleetCor’s Competition in the DFW Area

BHOC vigorously contends that the district court erred by granting

judgment for FleetCor based on a factual finding that FleetCor was not

competing with BHOC, when there was no summary judgment evidence to

support such a finding, and when such a finding was contrary to FleetCor’s

admissions. BHOC argues that FleetCor’s motion for summary judgment was

premised on its purported admission that it was competing in the DFW area

through its MasterCard and CFN business, and that it had the right to do so.

FleetCor argues it did not admit competing with BHOC, it did meetits summary
No. 07-10130

6 AsFleetCornotes, Barney Holland’s statement “does not mention CFN or MasterCard,

identify any customers or sales that Mr. Holland believes BHOC has lost, or state what facts

support his opinion that BHOC lost them.”

9

judgment burden, and in any event, summary judgment was appropriate on

grounds not reached by the district court.

A. MasterCard

BHOC argues that FleetCor breached the License Agreement because

FleetCor is competing in the DFW area through its MasterCard fuel card.

FleetCor offered a sworn affidavit that it had never marketed the MasterCard

fleet card in the DFW area. The district court found that BHOC produced no

evidence in support of its MasterCard claim. BHOC’s only evidence of

competition is an affidavit by Barney Holland, Jr., that he believed BHOC

suffered financially due to FleetCor’s marketing of “competitive products” in the

DFW area. This does not raise a genuine issue of material fact.6 See Reese v.

Anderson, 926 F.2d 494, 499 (5th Cir. 1991) (conclusory affidavit did not defeat

summary judgment because, “[w]hat is needed in an affidavit of this sort are

facts, reasons, observations, and explanations—in a word, evidence—not

conclusions”). BHOC essentially admits there is no evidence other than

FleetCor’s “admission,” and the record supports the district court’s finding. See

Boudreaux v. Swift Transp. Co., 402 F.3d 536, 544 (5th Cir. 2005) (“On summary

judgment, the moving party is not required to present evidence proving the

absence of a material fact issue. . . .”); see also Liberty Lobby, 477 U.S. at 257.

On this record, we find no error in the district court’s finding.

B. CFN
No. 07-10130

7 The WESCO provision states:

Exclusive Rights to New Products/Services. Marketer will have the exclusive

rights to market in the Licensed Territory new products and services offered by

Licensor. Neither the Licensor nor anyone acting on its behalf will circumvent

Marketer to market directly to their customers.

10

BHOC also argues that section 1.1A ofthe original License Agreement and

the “new products and services” provision in the WESCO license agreement7

prohibit FleetCor’s subsidiary CFN business. As mentioned above, BHOC

argues that FleetCor failed to satisfy the evidentiary burden necessary to obtain

summary judgment on this issue. FleetCor responds that its subsidiary

purchased a business from CFN that works with independent marketers of the

CFN card, but the FleetCor subsidiary only processes transactions using the

CFN cards. FleetCor does not market them to potential customers and is not

competing with BHOC. The district court agreed that the undisputed evidence

shows FleetCor has not marketed a competing fuel card nor, with CFN as a cardprocessing arrangement, furnished a new “product or service” in the DFW area.

Unfortunately, BHOC has produced no evidence related to FleetCor’s

corporate structure, the nature of the CFN subsidiary, or whether FleetCor is

actually marketing CFN cards rather than simply processing transactions.

Again, Barney Holland’s affidavit stating that he “believes” BHOC has suffered

financially due to FleetCor’s marketing of competitive products does not raise a

genuine issue of material fact. See Reese, 926 F.2d at 499. And, as FleetCor

notes, Barney Holland’s statement does not specifically mention CFN. See

Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (stating that the nonmovant

must identify specific evidence in the record and articulate the precise manner

in which that evidence supports its claims) (internal quotation omitted).
No. 07-10130

8 See Johnson v. Sawyer, 120 F.3d 1307, 1316 (5th Cir. 1997) (stating that “[a]lthough

we can affirm a summary judgment on grounds not relied on by the district court, those

grounds must at least have been proposed or asserted in that court by the movant”); FDIC v.

Laguarta, 939 F.2d 1231, 1240 (5th Cir. 1991) (refusing to affirm summary judgment on

grounds “neither raised below ... nor even raised sua sponte by the district court”); Frank C.

Bailey Enter., Inc. v. Cargill, Inc., 582 F.2d 333, 334 (5th Cir. 1978).

9 This argument is a companion to BHOC’s argument in part I.B., supra. The

implication is that because the district court errantly granted summary judgment without any

evidence related to CFN’s activities, it also prematurely ended discovery, which constituted an

abuse of discretion. But based on our conclusion that BHOC’s failure to produce any evidence

of CFN’s purported competition was before the district court on summary judgment, the

district court did not err in ending discovery and granting FleetCor’s motion for summary

judgment.

10 The citation to the record used by BHOC to support its argument that FleetCor

admitted it was competing with BHOC actually supports FleetCor. In response to BHOC's

claim that FleetCor was competing in the DFW area, FleetCor stated that the “factual premise

of this allegation is wrong.” BHOC argues the statement is not “evidence” in support of

11

BHOC complains that because FleetCor premised its motion for summary

judgment on the legal inapplicability of the FNP, BHOC had no duty to produce

evidence of CFN’s activities in the DFW area. Moreover, FleetCor offered no

evidence of CFN’s actitivies in the district court on summary judgment, hence

we cannot consider it here.8 Finally, the district court erred in basing summary

judgment on facts of non-competition that were not proven as to CFN.9 These

arguments are misplaced.

The district court’s memorandum and order states that the “Grounds of

FleetCor’s Motion” include “that there is no evidence to support one or more of

the facts essential to the theories,” and that BHOC’s claims were precluded by

both the “terms of the operative contracts and by undisputed facts” (emphasis

added). Additionally, FleetCor’s motion for summary judgment specifically

disputed BHOC’s claim thatits CFN business competes with BHOC in the DFW

area10 and thus put BHOC on notice that it was advancing this theory and
No. 07-10130

FleetCor’s argument that it was not competing in the DFW area. That argument is correct,

but FleetCor’s assertion is supported by evidence in Charles Freund’s affidavit.

11 BHOC also argues it is entitled to a preliminary injunction to prevent FleetCor from

competing in the DFW area. But, as FleetCor argues, one seeking injunctive relief must

demonstrate a real and immediate threat that he will be subject to the behavior he seeks to

enjoin. See Gladden v. Roach, 864 F.2d 1196, 1198 (5th Cir. 1989). BHOC has presented no

evidence of any threatened competition in violation of the License Agreement and, therefore,

is not entitled to an injunction. Further, BHOC did not seek a declaratory judgment in the

district court and may not create such a claim on appeal.

12

placed the issue before the district court for consideration. See Johnson, 120

F.3d at 1316. Although FleetCor’s assertion in its summary judgment briefs is

not properly summary judgment evidence, BHOC failed to produce any evidence

that FleetCor was competing with BHOC in the DFW area through the CFN

business. And on summary judgment, FleetCor is not required to prove the

contrary. See Liberty Lobby, 477 U.S. at 257; Boudreaux, 402 F.3d at 544.

BHOC insists that it tried to uncover CFN’s DFW activities but was

stonewalled by FleetCor’s “dilatory” tactics. Although FleetCor had to be

compelled by the district courtto produce documents related to CFN’s activities,

this does not relieve BHOC of producing evidence necessary to survive a motion

for summary judgment. As the Supreme Court stated in Liberty Lobby: “[T]he

plaintiff must present affirmative evidence in order to defeat a properly

supported motion for summary judgment. This is true even where the evidence

is likely to be within the possession of the defendant . . . .”). 477 U.S. at 257. If

BHOC was convinced that additional evidence should have been adduced to the

district court, it could have filed a Rule 56(f) motion or asked for rehearing. Its

failure to do so suggests the futility of further evidentiary efforts. Exxon Corp.,

129 F.3d at 786–87. On this record, the district court did not err in granting

FleetCor’s motion for summary judgment.11
No. 07-10130

13

III. De Facto Termination

BHOC argues the district court erred in granting summary judgment on

its de facto termination claim by requiring BHOC to prove FleetCor’s intent to

injure BHOC, when such an element is not part of BHOC’s claim. Specifically,

BHOC argues that by competing in the DFW area, altering the basic tenets of

the Fuelman program through elimination of the pre-purchase controls, and

altering the financial structure of the program through the use of the retailminus formula, FleetCor has terminated the agreement. The district court

concluded that“[t]here is no summary judgment evidence . . . that FleetCor took

any of the actions of which plaintiff complains for the purpose of destroying, or

interfering with, the operation by plaintiff of its FleetCor System business.”

In general, constructive termination requires that the licensee be

effectively forced out of business. See, e.g., Portland 76 Auto/Truck Plaza, Inc.

v. Union Oil Co. of Ca., 153 F.3d 938, 948 (9th Cir. 1998); see also Petereit v. S.B.

Thomas, Inc., 63 F.3d 1169, 1183 (2d Cir. 1995) (holding that a constructive

termination claim requires proof of a “substantial decline in franchisee net

income”). But here, BHOC has presented no evidence that its business has

declined as a result of BHOC’s alleged termination of the License Agreement.

Furthermore, the three activities that BHOC argues constitute the

termination fail to support its claim. First, although BHOC relies on the fact

that FleetCor’s use of a retail-minus revenue formula will undermine its

business, it does not challenge the district court’s conclusion that FleetCor’s use

of the formula with Shell did not constitute a breach of the License Agreement.

Second, BHOC abandoned its “pre-purchase controls” claim, allowing it to be

dismissed with prejudice in order to pursue its appeal ofthe summary judgment.
No. 07-10130

14

BHOC cannot now use FleetCor’s elimination of the pre-purchase controls as a

rationale that it terminated the contract, especially because the issue did not go

to trial. Third, as shown above, BHOC failed to produce any evidence that

FleetCor was competing in breach of the License Agreement, nor did it

demonstrate thatthe challenged activities violated the agreement. Absent these

predicate breaches of the Licensing Agreement, BHOC cannot claim de facto

termination. This argument lacks merit.

CONCLUSION

For these reasons, the judgment of the district court is AFFIRMED.