* 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

March 24, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-30785

(Summary Calendar)

GEERD GUENTHER,

Plaintiff-Appellant,

versus

TIDEWATER, INC.

Defendants-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

(02-CV-2491-S)

Before SMITH, DEMOSS, and STEWART, Circuit Judges.

PER CURIAM: *

In this diversity case, Geerd Guenther (“Gunther”) seeks modification of the district court’s

summary judgment dismissing with prejudice his Louisiana Whistleblower’s Act claim for retaliation

against Tidewater, Inc. (“Tidewater”). Guenther primarily contends that the district court dismissed

the case for want of subject matter jurisdiction, which is not a judgment on the merits, and therefore1 Guenther voluntarily dismissed his claims that Tidewater discriminated against him on the

basis of his age and/or national origin.

2 the district court’s judgment can have no effect as a dismissal with prejudice. Guenther, however,

m istakenly confuses the district court’s determination that he failed to establish a claim un der

Louisiana law with a lack of subject matter jurisdiction. Because we find that the district court, which

properly exercised diversity jurisdiction over the matter, did not err in determining that Guenther was

not entitled to relief under the Whistleblower’s Act as a matter of law, we affirm the district court’s

grant of summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On August 15, 2002, Guenther, a citizen of La uda, Germany, brought this suit against

Tidewater, a citizen of Delaware and Louisiana, under the Louisiana Whistleblower’s Act, La. Rev.

Stat. Ann. 23: 967, asserting that Tidewater fired him in retaliation for his numerous complaints about

business decisions made by Tidewater and hi s allegat io ns that Tidewater had engaged in illegal

activity. 1 Upon completion of discovery, Tidewater filed a motion for summary judgment in which

it asserted that the Act does not have extraterritorial effect and thus does not apply to the events in

this case, all of which occurred either in India, West Africa, or Dubai. Tidewater also argued that

Guenther had no claim under the Act because (1) Gue nt her was not a Tidewater employ ee; (2)

T idewater did not violate Louisiana Law; and (3) Tidewater took no reprisals against him. In

response, Guen t her filed a three-line “Statement of No Opposition to Motion for Summary

Judgment,” stating that “Plaint iff concedes lack of jurisdiction. A dismissal without prejudice under

FRCP Rule 41(b) is required.” In its reply of July 15, 2003, Tidewater clarified it s summary

judgment arguments, explained that jurisdict io n was not at issue, and argued that a Rule 41(b)3

dismissal without prejudice was not appropriate in this case. On July 17, 2003, Guenther filed a surreply in which he conceded that the Louisiana Whistleblower’s Act did not apply extraterritorially.

Guenther also stated “Findings of fact are not necessary. Plaintiff’s concession should end the matter

as far as this court is concerned.” On July 18, 2003, the district court issued an Order and Reasons

granting Tidewater summary judgment and dismissing Guenther’s suit with prejudice. Guenther now

appeals.

DISCUSSION

Guenther argues that the district court erred in granting summary judgment, asserting that the

basis for the dismissal was a want of subject matter jurisdiction, and that the district court therefore

erred in proceeding to adjudicate the merits of the case. According to Guenther, the district court

should have treated Tidewater’s motion for summary judgment as a Rule 12(b)(1) motion and should

have dismissed the case without prejudice under Rule 41(b). We disagree.

As a threshold matter, we note that the district court properly established that it had diversity

jurisdiction over the case pursuant to 28 U.S.C. § 1332 because the amount in controversy exceeds

$75,000, Guenther is a citizen of Germany, and Tidewater is a citizen of Delaware and Louis i ana.

Therefore, Guenther’s assertion that the district court erred in refusing to convert Tidewater’s

summary judgment motion into a 12(b)(1) motion is without merit. Moreover, as the district court

correctly pointed out, Rule 41(b) applies only to involuntary dismissals and thus has no application

where, as here, the plaintiff has attempted to voluntarily dismiss his action.

Turning to the propriety of the district court’s grant of summary judgment, we likewise find

no error in the district court’s rulings. This Court reviews the grant of summary judgment de novo,

applying the same legal standards as the district court ap plied t o determine whether summary4

judgment was appropriate. F lock v. Scri pto-Tokai Corp

., 319 F.3d 231, 236 (5th Cir. 2003) (citing

Ramirez v. City of San Antonio

, 312 F.3d 178, 181 (5th Cir. 2002)). A summary judgment motion

is properly granted o nly when, viewing the evidence in the light most favorable to the nonmoving

party, the record indicates that there is “no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); C elotex Corp. v. Catrett

, 477

U.S. 317, 322 (1986). To determine “whether there is a dispute as to any material fact, we consider

all of the evidence in the record, but we do not make credibility determinations or weigh evidence.”

Flock

, 319 F.3d at 236 (citation omitted). Rather, “we draw all reasonable inferences in favor of the

nonmoving party.” Id.

After carefully considering the pleadings and the entirety of the recor d

, we agree with the

district court that Guenther utterly failed to adduce any evidence supporting his case and that he failed

to demonstrate why summary judgment was inappropriate. Once Tidewater alerted the district court

that there was an absence of evidence supporting one or more elements of Guenther’s claim, the nonmovant, Guenther, had the affirmative duty t o come forward with evidence to rebut the summary

judgment motion. Celotex , 477 U.S. at 325; A nderson v. Liberty Lobby, Inc ., 477 U.S. 242, 256

(1986). At that point, the non-movant must go beyond the pleadings and designate specific facts

showing that there is a genuine issue of material fact for trial. C elotex

, 477 U.S. at 325. As we have

previously stated, “[t]his burden is not satisfied with some metaphysical doubt as to the material facts,

by conclusory allegations, by unsubstantiated assertions, or by only a scint illa of evidence.” L ittle v.

Liquid Air Corp ., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam).

In this case, it was undisputed that all the events at issue took place in India, West Africa, or

Dubai, and that the Louisiana Whistleblower’s Act upon w hich Guent her’s claim is based has no5

extraterritorial application. See Salazar v. Freeport Overseas Service Co.

, No. 99-1210, WL

1099391, at *2 (E.D. La. Aug. 3, 2000). In addition, Guenther did not dispute any of the material

facts offe red by Tidewater or offer any evidence in support of his claim. Specifically, Guenther

provided no evidence that he was a Tidewater employee, that Tidewater violated Louisiana law, or

that Tidewater took any reprisals against him. Therefore, we agree with the di stri ct court that

Tidewater was entitled to judgment as a matter of law.

CONCLUSION

For the for ego ing reasons, we AFFIRM the district court’s grant of summary judgment in

favor of Tidewater and its dismissal of Guen t her’s Louisiana Whistleblower’s Act claim with

prejudice.

AFFIRMED.