## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 00-30642

Summary Calendar

_______________



### G ERALD 

### A SHKER



### ,

Plaintiff-Appellant,

VERSUS



### H ORIZON 

### O FFSHORE 

### C ONTRACTORS



### , I NC



### .,

F ORMERLY K

NOWN AS H L S O FFSHORE

, L.L.C.,



### Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

99-CV-1367-D

_________________________ November 30, 2000

Before SMITH, BENAVIDES, and

DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge: * In this diversity action, Gerald A shker appeals a summary judgment in favor of Horizon

Offshore Contractors, Inc. ( “ Horizon”).

Finding no error, we affirm.

Ashker sued Horizon, claiming that it orally

promised him

that he could participate in a

bonus pool

consisting of ten percent of

Horizon’s gross revenues if Horizon achieved

$30 millio n in “revenues” from June 18, 1996,

through June 18, 1997. Even though Ashker * Pursuan t to 5 T H C IR

. R. 47.5, the court has

determined that this opinion should not be

published and is not precedent except under the

limited c i rcumstances set forth in 5 TH C IR

. R. 47.5.4.2

was transferred from his position on the sales

fo rce in March 1997 and was laid off in June

1998, he did not ask for his bonus until he filed

the suit.

Horizon filed two motions for summary

j udgment: one based on the inadequacy of

Horizon’s actual revenues (only $22 millio n)

and the other on the lack of contract formation

as a matter of law even under Ashker’s version

of th e alleged contract terms. The district

court granted both motions. Ashker appeals,

asserting that he had a n insufficient

opportuni ty to conduct discovery; that a

question of material fact existed as to the

amount of Horizon’s revenue , precluding the

first motion for summary judgment; and that

the contract had definite terms, precluding the

second motion for summary judgment. 1

I.

We review for abuse of discretion the decision to provide sufficient opportuni ty to conduct discovery to respond to a motio n for

summary judgm

ent. K ing v. Dogan, 31 F.3d

344, 346 (5th Cir. 1994) (quoting Richardson

v. Henry, 902 F.2d 414, 417 (5th Cir. 1990)).

Ashker claims the court er red in granting

summary judgment while a motion to com pel

discovery was pending.

The court did gr ant Ashker two

continuances under F ED

. R. C IV

. P. 56(f), but

in its response to the second, the court set a

deadline beyond which no further continuances

would be granted. Ashker now contends that

because discovery was not complete to his satisfaction and because a motion to compel discovery was pending before a magistrate judge

at the time of the summary judgment hearing, the district court erred in proceeding wi t hout

allowing additional discovery.

A court may properly end discovery pri or

to granting summary judgment “despite the existence of out st anding discovery requests.”

N etto v. Amtrak, 8 63 F.2d 1210, 1215 (5th

Cir. 1989). The court allowed extensive discovery, granting two continuances of the first

summary judgment motion and one of the second. Ashker’s pending motion to compel discovery requested a complete download of

Horizon’s archived accounting system, hoping

“to perform calculations” that would show that

the figures reached by the defendants are

merely one interpretation of [the] financial records. Ashker also requested all of the e-mails

and electronic documents on Horizon’s

network, hoping to find a doc u ment that

would support the alleg edly promised bonus.

Neither of these voluminous records would

yield new information relevant to e ither

summary judgment mot io n. Horizon had

already provided financial records, audited by

Arth ur Anderson, sufficient to determine its

revenue for the period in question. Moreover,

t he second motion accepted Ashker’s

statement of the facts arguendo, so documents

supporting his versi on of the contract woul d

have no effect.

[A] plaint iff’s entitleme n t to discovery

before a ruling on a motion of summary

judgment is not unl

imited and may be

cut off when the record shows that the

requested discovery will not be likely to

produce facts he n eeds to wi thstand a

summary judgment moti on. P aul Kadair, Inc. v. Sony Corp., 694 F.2d 1017,

1029-30 (5th

Cir. 1983). A district

judge “may exercise his discreti on to

prevent the plaintiff from burdening the 1 Alt h ough Ashker asserted contract and tort

claims, he appeals only on the contract claim.3

defendants with a needless round of

discovery.” I

d. at 1030. The court

pointed out: “[I]t is clear that a plaint iff

c annot defeat a motion for summary

judgment by

. . . a mp lifying [his

allegations] only with speculation about

what discovery might uncover.” 694

F .2d at 1030 (quoting Contempora r y

Mission, Inc. v. United States Postal

Service, 648 F.2d 97, 107 (2d. Cir.

1981).

Netto , 863 F.2d at 1216.

Ashker did not show that the additional information he re q uested from Horizon would

have more than a speculative impact o n his

abilit y to withstand a summary judgment motion. Thus, the court di d not abuse i ts

discretion in ruling on the summary judgment

motion despite the outstanding discovery.

II.

Ashker challeng es the decision to grant

Horizon’s first motion for summary judgment,

claiming that t he amount of revenue Horizon

earned was a question of material fact. We review a summary judgment de novo

. W ebb v.

Cardiothoracic Surgery Assoc.

, 139 F.3d 532,

536 (5th Cir. 1998). A part y is entitled to

su mmary judgment “if the pleadings,

depositions, answers to interrogatories, and

admissions on file, together with the affidavits,

if any, show that t here is no genuine issue of

material fact and that the movi ng party is entitled to judgment as a matter of law.” F E D

. R.

C IV

. P. 56(c). The mo ving party must prove

“that there is an absence of e vidence to

support the nonmoving party’s case.” C elotex

v. Catre tt, 477 U.S. 317, 325 (1986). The

nonmoving party must then demonstrate

“specific facts showing that there is a genuine

issue for trial.” M

atsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 , 588

(1986).

Horizon’s financial records created during

the norma l co urse of business and the

supporting affidavit of Dale Peltier, Horizon’s

Controller, show t hat Horizon’s gross

revenues for the pe riod between June 1996

and June 1997 were approximately $22

millio n. Peltier based his t est imony on

“Revenue Accrual Workshee t s,” schedules

that form the basis for Horizon’s financial

statements audited by Arthur Anderson.

Ashker contends t hat Horizon’s revenue

accrual sheets do not reflect the revenues from

jobs successfully bid by sales staff but on

which work had not yet begun, i.e.

, gross

sales. Significantly, the district court noted in

its minute entry that Ashker t est ified in

deposition that the $30 millio n threshold was

based on gross revenues. Even using gro ss

sales, however, Horizon did not ear n $30

millio n in the rel e vant time period. As the

head of Horizon’s estimating dep a rtment

testified, the maximum value of bids during the

relevant time was $25.6 millio n. This figure

includes the value of

all jobs through June

1997 minus the value of jobs completed before

June 18, 1996, plus the value of jobs bid

before June 1997 that are not reflected on the

accrual worksheet.

Ashker submitted a one-page letter from an

accountant stating that the sales figures total ed

$31,993,340 for the period in question. This

letter may not support an opposition to

summary judgment, because it was not

“attached to and authenticated by an affidavit

conforming to F ED

. R. C IV

. P. 56(e).” 11

J AMES W. M OORE ET AL

., M OORE ’ S F EDERAL

P RACTICE § 56.14 [2][c] (3d ed. 1997); s ee

also F ED

. R. C IV

. P. 56(e). Further, the letter4

failed to meet th e disclosure requirements

under F ED

. R. C IV

. P. 26(a)(2) bec ause the

expert revealed neither her qualifications nor

the do cuments on which she relied. “Documentary evidence f

or which a proper

foundation has not been laid cannot support a

summary judgment motion, even if the

documents in question are highly probative of

a central and essential issue in the c ase.” 11

J AMES W. M OORE ET AL

., supra

, § 56.14[2][c]. 2 Even unsworn expert reports

“do not qualify as affidavits or otherwise admissible evidence for the purpose of Rule 56,

and may be disregarded by the court when ruling on a motion for summary judgment.” Id. 3

The court properly rejected this letter, because

it did not comply with the relevant procedural

rules.

Thus, because t he one shred of evidence

Ashker produced in op p osition to Horizon’s

figures did not meet the standards of proper

summary judgment evidence, the district court

correctly found no genuine issue of material

fact as to the amount of Horizon’s gross sales

or revenue. Because these figures fell short of

the $30 millio n Ashker identified as the threshold for the promised bonus, his claim must fail.

III.

Regarding the second motion for summary judgment, the court correctly found that even

accepting Ashker’s version of the terms of the

contract as true, these terms did not establish

a contract as a matter of

law. Ashker bases

t he existence of a contract on the following

facts: At a meeting on or around June 26,

1996, with approximately six other peopl e,

Don Sites, then a principal with HLS Offshore

L.L.C., allegedly made an oral promise to pay,

in bonuses, ten percent of the company’s gross

revenues for June 1996 through J une 1997,

which Ashker believed would entitle him to

$3.8 millio n. Ashker never mentioned the bonus to anyone in the company until seven

months after he had left Horizon, nor did he

ever confirm the bonus plan in writing.

Even when Horizon’s attorneys intervi ewed

Ashker about this meeting while investigating

a similar claim by anot her employee, Ashker

did not claim that he, too, was owed a bonus.

Instead, one wee k after Sites supposedly

promised the bonus, he issued a memorandum

stating that he was just beginning to consider

a bonus plan, that the bonus pool would

contain a max imum of $150,000, that the

bonus would be contingent upon Horizon’s

profitability, and tha t t he plan would need

revision before it became final. On these facts,

the district court found that the parties did not

form a valid contract.

Louisiana law lists four elements of a valid

contract: capacity, consent, object, and lawful

cause. J

. Caldera & Co. v. Louisiana Stadium

& Exposition Dist., 750 So. 2d 284, 288 (La.

App. 5th Cir.)

, writ denied

, 756 So. 2d 1144

(La. 2000). Horizon challenges only consent

and object. We need not address whether the

object of the co nt ract is sufficiently definite,

because t h e alleged verbal agreement plainly

lacks consent. 2 See also Canada v. Blain’s Helecopters, Inc.,

831 F.2d 920, 925 (9th Cir. 1987) (disallowing the

use of unauthenticated fuel invoices in a wrongful

de ath action because they lacked a proper

foundation, even though the invoices were

probative of a central issue).

3 See also Lugue v. Hercules, Inc.

, 12 F. Supp.

2d 1351, 13 58 (S.D. Ga. 1997) (holding that unsworn expert reports prepared in compliance with

r u le 26(a)(2) are inadmissible because unsworn

statements do not qualify as affidavits)

.5

The plaint iff bears the burden o f proving

th at offer and acceptance establish a verbal

contract. I

d. W here testimony establishes that

the minds of both parties did not m eet

touching primary matters, th e co ntract is invalid for lack of consent. I d. T estimony demonstrates that Sites did not believe he had offered a bonus plan during the meeting, because

his letter issu ed the following week indicated

that the idea had not been finaliz ed. Thus,

Sites and Ashker did not have a meeting of the

minds as to the offer.

Moreover, Ashker’s f

ailure to raise, with

Horizon, the issue of

his bonus before suing

indicates a lack of accepta nce. Therefore,

Ashker has not satisfied his burden of proving

the existence of the contract under Louisiana

law.

Similarly, Texas law requires six elements

for a valid co nt ract: (1) an offer; (2)

acceptance in strict compliance with the terms

of the offer; (3) a meeting of the minds; (4) a

communication that each party has consented

to the ter ms o f the agreement; (5) execution

and delivery of the contract with t h e

understanding tha t it become mutual and

binding on both parties; and (6) consideration.

Angelou v. African Overseas Union, 2000 WL

1201802, at *7 (T ex. App. 

### S S Houston [14th

Dist.] 2000, no pet.); see also Villarreal v. Art

Instit., 20 S.W.3d 792, 798 (Tex. App. 

### SSCorpus Christi 2000, no pet.). The bonus package

Horizon purportedly promised As hker fails t his

sta n dard. Regardless of how one interprets

Horizon’s actions, Ashker presented no

evidence that he communicated his consent to

Horizon.

First, Ashker testified that he neither

bargained for the alleged promise nor changed

his behavior in relianc e on it. Second, he did not inquire about the pro mise either in June

1997 or at the end of 1997 when he r eceived

a $1,200 bonus. Finally, he did not ask about

the bonus when Horizon transferred him out of

s ales o r when he was terminated in October

1998. Thus, the contract fails to satisfy the

element of consent necessary to the formation

of a contract under Texas law; we need not

address the other elements.

AFFIRMED.