IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 00-30642

Summary Calendar

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GERALD ASHKER,

Plaintiff-Appellant,

VERSUS

HORIZON OFFSHORE CONTRACTORS, INC.,

FORMERLY KNOWN AS H L S OFFSHORE, 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 Ashker appeals a summary judgment in favor of Horizon

Offshore Contractors, Inc. (“Horizon”).

Finding no error, we affirm.

Ashkersued 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 million in “revenues” from June 18, 1996,

through June 18, 1997. Even though Ashker

* 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.
2

was transferred from his position on the sales

force 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

judgment: one based on the inadequacy of

Horizon’s actual revenues (only $22 million)

and the other on the lack of contract formation

as a matter oflaw even under Ashker’s version

of the alleged contract terms. The district

court granted both motions. Ashker appeals,

asserting that he had an insufficient

opportunity 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 opportunity to conduct discovery to respond to a motion for

summary judgment. King 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 erred in granting

summary judgment while a motion to compel

discovery was pending. 

The court did grant Ashker two

continuances under FED. R. CIV. 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 discoverywas not complete to hissatisfaction 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 without

allowing additional discovery. 

A court may properly end discovery prior

to granting summaryjudgment “despite the existence of outstanding discovery requests.”

Netto v. Amtrak, 863 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 performcalculations” that would showthat

the figures reached by the defendants are

merelyone interpretation of[the] financialrecords. Ashker also requested all of the e-mails

and electronic documents on Horizon’s

network, hoping to find a document that

would support the allegedly promised bonus.

Neither ofthese voluminousrecords would

yield new information relevant to either

summary judgment motion. Horizon had

already provided financial records, audited by

Arthur Anderson, sufficient to determine its

revenue for the period in question. Moreover,

the second motion accepted Ashker’s

statement ofthe facts arguendo,so documents

supporting his version of the contract would

have no effect.

[A] plaintiff’s entitlement to discovery

before a ruling on a motion of summary

judgment is not unlimited and may be

cut off when the record shows that the

requested discovery will not be likely to

produce facts he needs to withstand a

summary judgment motion. Paul Kadair, Inc. v. Sony Corp., 694 F.2d 1017,

1029-30 (5th Cir. 1983). A district

judge “may exercise his discretion to

prevent the plaintiff from burdening the 1 Although Ashker asserted contract and tort

claims, he appeals only on the contract claim.
3

defendants with a needless round of

discovery.” Id. at 1030. The court

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

cannot defeat a motion for summary

judgment by . . . amplifying [his

allegations] only with speculation about

what discovery might uncover.” 694

F.2d at 1030 (quoting Contemporary

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 requested from Horizon would

have more than a speculative impact on his

ability to withstand a summary judgment motion. Thus, the court did not abuse its

discretion in ruling on the summary judgment

motion despite the outstanding discovery.

II.

Ashker challenges the decision to grant

Horizon’sfirst motion forsummary judgment,

claiming that the amount of revenue Horizon

earned was a question of materialfact. We review a summary judgment de novo. Webb v.

Cardiothoracic Surgery Assoc., 139 F.3d 532,

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

summary judgment “if the pleadings,

depositions, answers to interrogatories, and

admissions on file, together with the affidavits,

if any, show that there is no genuine issue of

material fact and that the moving party is entitled to judgment as a matter of law.” FED.R.

CIV. P. 56(c). The moving party must prove

“that there is an absence of evidence to

support the nonmoving party’s case.” Celotex

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

nonmoving party must then demonstrate

“specific facts showing that there is a genuine

issue for trial.” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 588

(1986).

Horizon’s financial records created during

the normal course of business and the

supporting affidavit of Dale Peltier, Horizon’s

Controller, show that Horizon’s gross

revenues for the period between June 1996

and June 1997 were approximately $22

million. Peltier based his testimony on

“Revenue Accrual Worksheets,” schedules

that form the basis for Horizon’s financial

statements audited by Arthur Anderson. 

Ashker contends that Horizon’s revenue

accrualsheets do not reflect the revenuesfrom

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 testified in

deposition that the $30 million threshold was

based on gross revenues. Even using gross

sales, however, Horizon did not earn $30

million in the relevant time period. As the

head of Horizon’s estimating department

testified, the maximumvalue of bids during the

relevant time was $25.6 million. This figure

includes the value of all jobs through June

1997 minusthe value ofjobs completed before

June 18, 1996, plus the value of jobs bid

before June 1997 that are not reflected on the

accrual worksheet. 

Ashkersubmitted a one-page letter froman

accountantstating that the salesfigurestotaled

$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 FED. R. CIV. P. 56(e).” 11

JAMES W. MOORE ET AL., MOORE’S FEDERAL

PRACTICE § 56.14[2][c] (3d ed. 1997); see

also FED. R. CIV. P. 56(e). Further, the letter
4

failed to meet the disclosure requirements

under FED. R. CIV. P. 26(a)(2) because the

expert revealed neither her qualifications nor

the documents on which she relied. “Documentary evidence for 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 case.” 11

JAMES W. MOORE 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 properlyrejected thisletter, because

it did not comply with the relevant procedural

rules. 

Thus, because the one shred of evidence

Ashker produced in opposition 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 million Ashker identified asthe 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

the existence of a contract on the following

facts: At a meeting on or around June 26,

1996, with approximately six other people,

Don Sites, then a principal with HLS Offshore

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

in bonuses, ten percent ofthe company’s gross

revenues for June 1996 through June 1997,

which Ashker believed would entitle him to

$3.8 million. 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 interviewed

Ashker about this meeting while investigating

a similar claim by another employee, Ashker

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

Instead, one week 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 maximum of $150,000, that the

bonus would be contingent upon Horizon’s

profitability, and that the 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 contract is sufficiently definite,

because the 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

death 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, 1358 (S.D. Ga. 1997) (holding that unsworn expert reports prepared in compliance with

rule 26(a)(2) are inadmissible because unsworn

statements do not qualify as affidavits).
5

The plaintiff bears the burden of proving

that offer and acceptance establish a verbal

contract. Id. Where testimonyestablishesthat

the minds of both parties did not meet

touching primary matters, the contract is invalid for lack of consent. Id. Testimony demonstrates that Sites did not believe he had offered a bonus plan during the meeting, because

his letter issued the following week indicated

that the idea had not been finalized. Thus,

Sites and Ashker did not have a meeting of the

minds as to the offer. 

Moreover, Ashker’s failure to raise, with

Horizon, the issue of his bonus before suing

indicates a lack of acceptance. 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 contract: (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 terms of the agreement; (5) execution

and delivery of the contract with the

understanding that it become mutual and

binding on both parties; and (6) consideration.

Angelou v. African Overseas Union, 2000 WL

1201802, at *7 (Tex. App.SSHouston [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

HorizonpurportedlypromisedAshker fails this

standard. 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 reliance on it. Second, he did

not inquire about the promise either in June

1997 or at the end of 1997 when he received

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

the bonus whenHorizon transferred himout of

sales or 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.