REVISED DECEMBER 22, 2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50369

Summary Calendar

EMILY MARY HU, 

 Plaintiff - Appellant

v.

MAKOTO HANEDA; MASAE HANEDA; TOKUSANDOTCOM, 

 Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:13-CV-798

Before DAVIS, JONES, and HAYNES, Circuit Judges.

PER CURIAM:*

This appeal concerns alleged contracts for the sale of handbags and 

accessories between plaintiff-appellant Mary Hu and the Japanese defendantappellees. Hu’s complaint alleges that the defendants breached these contracts

by failing to pay for goods that she shipped to them. In support of these 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

December 21, 2015

Lyle W. Cayce

Clerk

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No. 15-50369

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allegations, Hu attached two documents to her complaint: (1) a table that she 

prepared containing the defendants’ payment history and a calculation of late 

fees, and (2) an unauthenticated e-mail from defendant Makoto Haneda 

acknowledging an “unpaid debt.” Haneda filed a pro se motion to dismiss Hu’s 

complaint, alleging that the parties settled these claims, and he attached the

purported settlement agreement in support of his motion.

After considering the submissions, the magistrate judge recommended 

that if the district court treats Haneda’s motion as a motion for judgment on 

the pleadings, Hu’s complaint should be dismissed because: (1) it did not 

include a particularized statement of facts to support her contention that she 

entered into a contract with all three defendants, and (2) it did not allege that 

any contractual terms were reduced to writing, nor did Hu attach any writing, 

which is required by Texas’ statute of frauds for contracts for the sale of goods 

over $500. Alternatively, the magistrate judge recommended that if the 

district court considers evidence outside the pleadings and treats the 

defendant’s motion as a motion for summary judgment, the motion should be 

granted because Hu had not produced any evidence of a contract that was 

reduced to writing. After the magistrate judge issued her report and 

recommendations to the district court, but before the district court ruled, Hu 

moved to amend her complaint in response to the magistrate judge’s report.

She attached the amended complaint and an “affidavit” with fourteen exhibits 

(largely e-mail correspondence between Hu and the defendants) to her motion. 

The district court later adopted the magistrate judge’s report, granted the 

defendant’s motion to dismiss, and denied all other pending motions as moot. 

Hu appealed.

On appeal, Hu contends that: (1) the district court erred in granting 

Haneda’s motion to dismiss because Haneda admitted the existence of a 

contract in the pleadings thus taking the contract outside of the statute of 

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frauds under Texas law, and (2) that the district court abused its discretion in 

not permitting her to amend her complaint because an amendment would not 

cause undue delay.1

After a careful review of the briefing and the record, we find no reversible 

error of law or fact. We agree with the district court and magistrate judge that 

Haneda’s admission in an e-mail that he owed Hu an “unpaid debt” does not 

constitute an admission of the existence of a contract, sufficient to fall within 

an exception to the writing requirement of Texas’ statute of frauds. See TEX.

BUS. & COM. CODE § 2.201(c)(2) (Vernon 2009) (noting that a contract not 

meeting the requirements of the statute of frauds is enforceable against a party 

who admits “in his pleading, testimony or otherwise in court that a contract for 

sale was made” (emphasis added)). Additionally, the district court did not 

abuse its discretion in denying Hu’s motion to amend her complaint because, 

even accepting the amended complaint and attached exhibits as true, they are

still insufficient to demonstrate the existence and minimum required terms of 

a written contract. Id. § 2.201(a) (“a contract for the sale of goods for the price 

of $500 or more is not enforceable by way of action or defense unless there is 

some writing sufficient to indicate that a contract for sale has been made 

between the parties and signed by the party against whom enforcement is 

sought”); see, e.g, Westlake Petrochemicals, L.L.C. v United Polychem, Inc., 

688 F.3d 232, 241 (5th Cir. 2012) (holding that the contract at issue satisfied 

 

1 Hu also contends that the district court erred by purportedly granting Haneda’s 

motion for summary judgment. Though the magistrate judge’s report recommended, in the 

alternative, that if the district court were to consider evidence outside the pleadings it should 

treat Haneda’s motion to dismiss as a motion for summary judgment and grant it, a close 

review of the district court’s order indicates that the court treated Haneda’s motion as a 

motion to dismiss for failure to state a claim, not a motion for summary judgment. 

Accordingly, we do not consider this argument on appeal.

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the statute of frauds because it identified the quantity term, price, product, 

and delivery terms). Accordingly, we AFFIRM the district court’s order.

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