* 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. 08-20106

Summary Calendar

THULE DRILLING ASA

Plaintiff - Appellant

v.

JACOB SCHIMBERG

Defendant - Appellee

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:07-CV-3328

Before JOLLY, CLEMENT, and HAYNES, Circuit Judges.

PER CURIAM:*

Thule Drilling (“Thule”) appeals the district court’s grant of summary

judgment in favor of Jacob Schimberg (“Schimberg”). Because the record before

us does not permit meaningful appellate review, we VACATE and REMAND.

Thule, a Norwegian company, brought suit against Schimberg based on

business transactions between Thule and QGM Group (“QGM”), a corporation

based in the United Arab Emirates. Schimberg served as the CEO of QGM.

United States Court of Appeals

Fifth Circuit

F I L E D

August 25, 2008

Charles R. Fulbruge III

Clerk
No. 08-20106

2

Thule entered into a contractual relationship with QGM in which QGM was to

do repair and construction work on three of Thule’s mobile drilling rigs. Thule

also entered into a contract with QGM in which it agreed to loan QGM funds so

that QGM’s work on the rigs could be completed. In its complaint, Thule alleged

that QGM breached the contracts that it had with Thule and that, accordingly,

Thule was entitled to take possession of the rigs. Thule further alleged that

Schimberg was the corporate agent of QGM, that he directly denied it access to

its rigs, and that in doing so he committed acts against Thule sounding in the

torts of conversion and trespass to chattel, as well as civil theft. See TEX. CIV.

PRAC.&REM.CODE § 134.004. Neither QGM nor Thule are located in the United

States; personal jurisdiction over Schimberg obtained based on Schimberg’s

citizenship and ownership of real property in Texas.

In the course ofthe proceedings below,the district court decided to convert

Schimberg’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)

into a motion for summary judgment under Rule 56. It then ruled in favor of

Schimberg in a brief order issued shortly after a conference in which it had

discussed its intent to convert the Rule 12(b)(6) motion. The district court gave

no rationale for its ruling. Thule now argues that this decision was improper

because the district court did not provide it the notice required by Rule 56 and

that, as a result, Thule was unable to present evidence that would have shown

the existence of a genuine issue of material fact.

“We review the grant of summary judgment . . . de novo, including the

question whether the court provided the notice required by Federal Rule of Civil

Procedure 56.” ResolutionTrust Corp. v. Sharif-Munir-Davidson Dev. Corp., 992

F.2d 1398, 1401 (5th Cir. 1993). Judging from the conference held before the

district court,the summary judgment here seems mostlikely to have been based

on the district court’s conclusion that Schimberg, as CEO of QGM, never acted

except in an agency capacity for the corporation. But this fact does not of itself
No. 08-20106

1 Where, as here, federal jurisdiction is established owing to the diversity of the parties,

“federal courts . . . apply state substantive law and federal procedural law.” Foradori v. Harris,

523 F.3d 477, 486 (5th Cir. 2008). We also apply the choice of law rules of the forum state.

See Hartford Underwriters Ins. Co. v. Foundation Health Servs., Inc., 524 F.3d 588, 593 (5th

Cir. 2008). The district court provided no discussion relating to choice of law rules, although

all of the activity forming the basis of this suit appears to have occurred in foreign settings.

Because both parties based their Rule 12(b)(6) arguments on Texas law, we assume that the

district court applied Texas law. We should note, however, that Texas applies the “most

significant relationship”testfor choice oflaw determinations, which, giventhe factsunderlying

this case, adds to our uncertainty about the basis for the district court’s decision. See Hughes

Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 205 (Tex. 2000).

3

provide a rationale for summary judgment. The one-sentence order pronouncing

final judgment offers no further guidance.

We note preliminarily that Texas law1 does permit corporate agents to be

liable for their own torts in many instances. In Texas, it is a “longstanding rule

that a corporate agent is personally liable for his own fraudulent or tortious

acts.” Miller v. Keyser, 90 S.W.3d 712, 717 (Tex. 2002); see generally Light v.

Wilson, 663 S.W.2d 813, 815 (Tex. 1983) (Spears, J., concurring) (collecting

cases). As such, “[a] corporation’s employee is personally liable for tortious acts

which he directs or participates in during his employment.” Leyendecker &

Associates v. Wechter, 683 S.W.2d 369, 375 (Tex. 1984). Or, stated another way,

“[a]n employee may be held individually liable for an employer’s tortious acts if

he knowingly participates in the conduct or has knowledge of the tortious

conduct, either actual or constructive.” Cass v. Stephens, 156 S.W.3d 38, 62

(Tex. App. 2004). “Instigating, aiding, or abetting the wrongdoing constitutes

participation. The employee or agent may be held liable regardless of whether

he receives any personal benefit from the tortious act.” Id. at 62-63. Texas law

in this respect is thus reflective of basic principles of agency law. See

RESTATEMENT (THIRD) OF AGENCY § 7.01 cmt. b (2005) (“An agent whose conduct

is tortious is subject to liability. This is so whether or not the agent acted with

actual authority, with apparent authority, or within the scope of employment.”).
No. 08-20106

4

Texas courts have accordingly concluded that suits in tort do not always require

piercing the corporate veil. See Kingston v. Helm, 82 S.W.3d 755, 759 (Tex. App.

2002).

The record before us does not permit meaningful appellate review; it

leaves us unable to determine on what basis the district court found that the

Texas laws related to corporate officer tort liability were not sufficient to make

Schimberg liable for his conduct or for the corporate conduct in which he is

alleged to have participated. See Hanson v. Aetna Life & Cas., 625 F.2d 573, 575

(5th Cir. 1980); Melancon v. Ins. Co. of North America,482 F.2d 1057, 1059 n.4

(5th Cir. 1973). Schimberg did submit affidavits indicating that he operated only

at the behest of his QGM superiors and that he was never a party to any of the

contracts between Thule and QGM. But what role these affidavits—and

arguably contrary declarations submitted by Thule—played in the district

court’s decision, we cannot say. Because we are uncertain about the rationale

for the district court’s decision, we VACATE and REMAND for entry of reasons

in support of the granting of summary judgment, or for such other proceedings

that may be appropriate.

VACATED and REMANDED.