United States Court of Appeals

for the Fifth Circuit

No. 21-20146

In the Matter of: TMT Procurement Corporation; F 

Elephant, Incorporated

Debtors,

Hsin Chi Su, 

Plaintiff—Appellant,

versus

F Elephant, Incorporated, 

Defendant—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:14-CV-3342

Before Stewart, Haynes, and Graves, Circuit Judges.

Per Curiam:*

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 4, 2022

Lyle W. Cayce

Clerk

Case: 21-20146 Document: 00516153605 Page: 1 Date Filed: 01/04/2022
No. 21-20146

2

Appellant Hsin Chi Su (“Su”) is the former president of Appellee F 

Elephant, Inc. (“F Elephant Corp.”). F Elephant Corp. previously owned 

the M.V. Fortune Elephant (“F Elephant”), a large vessel capable of carrying 

both oil and ore, a technology Su allegedly patented. When the F Elephant 

failed to generate sufficient revenue, F Elephant Corp. filed for chapter 11 

bankruptcy, and the vessel was sold. Su then sued F Elephant Corp. 

requesting declaratory relief and alleging claims for unjust enrichment and 

money had and received related to the sale of the F Elephant. 

F Elephant Corp. filed a motion for judgment on the pleadings which 

the district court granted. It held that Su’s claim for declaratory relief was an 

impermissible request for an advisory opinion. It also held that because the 

alleged patents were separate and distinct from the F Elephant vessel, Su had 

no claim for money had and received or unjust enrichment. The district court 

entered judgment for F Elephant Corp. 

We agree with the district court and accordingly AFFIRM.

I. 

The following facts are taken from Su’s complaint, which for purposes 

of this appeal, are accepted as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

Around March 2010, Su made a financial presentation to a group of banks to 

secure funds to build and purchase multiple ships. Su received loans from 

these entities and subsequently financed and directed the construction of 

several vessels. One vessel, the F Elephant, incorporated an under-deck 

piping structure created by Su. The piping structure was protected by patents 

in Japan, Korea, and China. F Elephant Corp., founded and headed by Su, 

then purchased the F Elephant. Su never transferred any patent rights 

stemming from the under-deck piping to F Elephant Corp. Instead he 

“simply allowed [F Elephant Corp.] to use his design and technology . . . free 

of any royalty or license fees.” 

Case: 21-20146 Document: 00516153605 Page: 2 Date Filed: 01/04/2022
No. 21-20146

3

On June 20, 2013, F Elephant Corp. filed for Chapter 11 bankruptcy 

and moved to release the vessel from the automatic bankruptcy stay so it 

could be sold. On May 13, 2014, the bankruptcy court entered a Sale Order 

stating that the F Elephant could be sold. Ultimately, the bankruptcy court 

approved the sale of the F Elephant “free and clear of all Alleged Su IP 

Claims.” Su then filed the instant complaint “to determine the extent and 

priority of his ownership interest in the [F Elephant’s] sale proceeds” to the 

extent the sale proceeds pertain to his patent rights. The district court 

granted judgment on the pleadings for F Elephant Corp. and Su appealed.

II.

This court reviews a district court’s grant of judgment on the pleadings under 

Rule 12(c) de novo. See Brittan Commc’ns Int’l Corp. v. Sw. Bell Tel. Co., 313 

F.3d 899, 904 (5th Cir. 2002); Hughes v. The Tobacco Inst., Inc., 278 F.3d 417, 

420 (5th Cir. 2001). A motion for judgment on the pleadings under Rule 12(c) 

is subject to the same standard as a motion to dismiss under Rule 12(b)(6). 

Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004) (citing Great Plains 

Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 n. 8 (5th 

Cir. 2002)). “[T]he central issue is whether, in the light most favorable to 

the plaintiff, the complaint states a valid claim for relief.” Hughes, 278 F.3d 

at 420 (internal quotations omitted). Although we must accept the factual 

allegations in the pleadings as true, id., a plaintiff must plead “enough facts 

to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007).

III.

On appeal, Su argues that the district court erred in determining his 

patents were exhausted, that he has not authorized the sale of his patents 

such that exhaustion could have occurred, that his claims were not moot, and 

that the district court erred in granting judgment for F Elephant Corp. on his 

Case: 21-20146 Document: 00516153605 Page: 3 Date Filed: 01/04/2022
No. 21-20146

4

money had and received and unjust enrichment claims. F Elephant Corp. did 

not file an answering brief.

As to Su’s arguments on patent exhaustion, there seems to be 

confusion as to the scope of the district court’s order. Simply put, the district 

court did not discuss patent exhaustion in its order. Appellee F Elephant 

Corp. raised this argument in its motion for judgment on the pleadings, but 

the district court granted judgment on alternative grounds. Because we 

cannot affirm or reverse a determination that the district court never made, 

Su’s patent exhaustion arguments are misplaced. 

Next, Su claims that the sale of the F Elephant presented a “live 

controversy” regarding the extent of his ownership interest in the proceeds 

from the sale of the vessel and that he was not seeking an advisory opinion. 

However, the complaint requests “a declaratory judgment that [Su] has a 

valid claim against bankruptcy estate of each defendant” and that the valid 

claim “is entitled to administrative claim status under 11 U.S.C. § 503 in the 

amount of the value of the loss of his intellectual property rights.” “[T]he 

federal courts established pursuant to Article III of the Constitution do not 

render advisory opinions,” and parties must articulate “concrete legal issues, 

presented in actual cases, not abstractions” Golden v. Zwickler, 394 U.S. 103, 

108 (1969) (quoting United Public Workers of America (C.I.O.) v. Mitchell, 330 

U.S. 75, 89 (1947)). Here, Su sought a declaration that he could sue potential 

future patent infringers for potential future acts. Such a request is neither 

concrete nor actual. The district court was correct in determining that this 

request was advisory. Aptly put, if Su “wishes to later sue the participants in 

the bankruptcy, those claims need to be presented to the bankruptcy court.”

Lastly, regarding the money had and received and unjust enrichment 

claims, Su seemingly conflates two issues: the sale of his alleged patents and 

the sale of the F Elephant. Su argues that F Elephant Corp. profited from the 

Case: 21-20146 Document: 00516153605 Page: 4 Date Filed: 01/04/2022
No. 21-20146

5

sale of his patent rights, but no such sale occurred. The bankruptcy court 

specifically noted that the F Elephant was sold “free and clear” of all alleged 

patent claims and rights. Other evidence also indicates that the patents were 

not sold as part of the sale of the vessel: Neither the loan documents nor Su’s 

guarantee of the loan mention patents. And Su has consistently affirmed that 

the patents were never the property of the F Elephant Corp. such that F 

Elephant Corp. could have sold them. Importantly, Su’s patent rights are 

distinct from the patented technology in the ship. The sale of the ship did not 

encompass the sale of any patents. Because these two causes of action are 

wholly premised upon patent sales that did not occur, judgment on behalf of 

F Elephant Corp. was proper.

The judgment of the district court is AFFIRMED.

Case: 21-20146 Document: 00516153605 Page: 5 Date Filed: 01/04/2022