United States Court of Appeals

for the Fifth Circuit

No. 21-20207

MDK Sociedad De Responsabilidad Limitada, 

Plaintiff—Appellant/Cross-Appellee,

versus

Proplant Incorporated (Texas); Proplant Incorporated 

(Nevada), 

Defendants—Appellees/Cross-Appellants.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CV-485 

Before Jones, Higginson, and Duncan, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

MDK Sociedad de Responsabilidad Limitada (“MDK”), a Bolivian 

entity, and Proplant, Inc., a Texas-based corporation, jointly pursued a 

lucrative operations and maintenance contract with Bolivia’s state-owned 

energy company. After the deal fell through, MDK sued Proplant under both 

breach of contract and tort theories. Before discovery was complete, the 

United States Court of Appeals

Fifth Circuit

FILED

February 9, 2022

Lyle W. Cayce

Clerk

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2

district court granted Proplant’s motion for summary judgment. We 

AFFIRM.

1

I.

MDK’s complaint alleges that Proplant provided MDK with a 

proposed contract for subcontractor services in October 2016 (“the October 

Document”). MDK alleges that as of November 11, 2016, it had not executed 

the October Document. The district court found that MDK never signed the 

October Document, and nothing in the record indicates otherwise.

MDK alleges that, in November 2016, Proplant told MDK that 

Proplant would provide the bid and performance bonds for a “potential 

contract in Bolivia.” Proplant allegedly waited until the final days before the 

due date before asking for more time to provide the bond. On December 13, 

2016, Proplant allegedly informed MDK that, because of complexities 

relating to sending money overseas, it could not submit the bond. Proplant 

allegedly asked MDK to submit the bond instead. MDK allegedly replied that 

it would only submit the bond if Proplant signed a contract promising to pay 

MDK for the bond.

The record indicates that on December 13, 2016, MDK and Proplant 

executed a “Commitment Agreement.” The Commitment Agreement 

explained that Yacimientos Petroliferos Fiscales Bolivianos (“YPFB”), 

Bolivia’s state-owned energy company, was soliciting bids for an operations 

and maintenance (“O&M”) contract. The Commitment Agreement 

1 On the same day that the district court granted Proplant’s summary judgment 

motion, it also granted MDK’s motion to dismiss Proplant’s counterclaims against MDK. 

Proplant filed a notice of cross-appeal but stated in its brief that it “waives its cross-appeal 

in the event this Court issues an opinion affirming the district court’s summary judgment 

in favor of Proplant.” Because we affirm the district court’s summary judgment in favor of 

Proplant, we do not consider Proplant’s cross-appeal.

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provided that MDK would assist Proplant with its efforts to obtain this O&M 

contract by collecting and filing certain documents for Proplant and by 

tendering to YPFB a bid bond of $500,000. In return, Proplant promised to 

furnish MDK with certain documents. Proplant also promised to take several 

other actions if it were “awarded” the O&M contract. Specifically, Proplant 

promised (1) “to execute the O&M agreement with YPFB pursuant to the 

terms set forth in” certain documents; (2) to pay MDK $500,000, plus bank 

charges, if it “decides not to execute the O&M agreement”; (3) “to 

subcontract MDK to provide all the services as set forth in” a separate 

document; and (4) to pay MDK $1 million from its “profits resulting from 

the execution of the Project.”

The parties agree2 that on December 14, 2016, Proplant bid on the 

YPFB project for the first time. They further agree that after YPFB declared 

the project deserted on December 30, Proplant bid on the YPFB project for 

a second time on January 19, 2017. MDK alleges that it submitted a $500,000 

bid bond to YPFB and that Proplant assured MDK that it would “issue the 

contract bond if the bid is awarded.”

The parties agree that a Proplant representative and an MDK

representative met with YPFB on March 20, 2017. Mike Antony, an owner 

of Proplant, submitted a declaration stating that at this meeting, YPFB agreed 

to incorporate thirty technical and commercial changes into the parties’ bid. 

Antony further declared that YPFB requested that Proplant submit certain 

documents and a performance bond.

MDK alleges that on March 22, 2017, YPFB awarded Proplant the 

O&M contract. MDK further alleges that, after being awarded the contract, 

2 In response to a court order, the parties submitted a “Joint Agreed Timeline” to 

the district court.

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Proplant was required to tender certain documents to YPFB and to deliver a 

performance bond. Proplant allegedly tendered the documents late and never 

provided the bond. On April 18, 2017, Proplant allegedly informed MDK that 

it would not submit the bond.

The record indicates that on April 3, 2017, an MDK representative 

named Pablo Miya sent a WhatsApp message to a Proplant representative 

named Murthy Chitturi stating, “I just received a call from these guys saying 

that weird things are happening inside YPFB and that please we have to hurry 

up with the documents and sign the contract ASAP.” Then on April 4, Miya 

messaged Chitturi, “ypfb deadline will be thursday 14th. If we dont sign the 

contract and submit the 2 bonds by that date. Legal area will cancell the 

bidding process and executing the bid bond.”

The parties agree that on April 5, “Techna sent a Letter of 

Transparency complaining about the bid process.” Miya later messaged 

Chitturi, “Everything happened because Tecna [sic] sent that letter.”

Antony declared that on April 6, he travelled with Miya to YPFB’s 

office in Bolivia to personally deliver the requested documents. However, 

Antony continued, because YPFB’s contract manager did not show up to 

receive the documents, Antony and Miya left the documents with the 

manager’s secretary. Antony further explained that after again trying and 

failing to deliver the documents to YPFB several days later, Proplant

representatives emailed the documents to YPFB. Antony concluded his 

declaration by stating that YPFB “failed to ever provide Proplant with a 

contract to execute.”

The parties agree that on April 21, 2017, “YPFB declared the project 

deserted.” The parties further agree that they jointly sought legal advice 

from Bolivian lawyers, who advised them that because YPFB had deserted 

the project, it was legally obligated to return the bid bond to MDK. The 

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Bolivian lawyer stated in an email to Proplant, “YPFB is being abusive and 

its actions are politically driven.” The lawyer suggested two legal avenues 

that the parties could pursue, but he suggested that because “[t]he counter 

party is the Bolivian State (YPFB),” “any legal action could be seriously 

undermined by the current political scenario in our country.” Proplant 

forwarded the email to MDK, explaining that the Bolivian lawyer had 

proposed “two options to counter the politically driven decision by YPFB 

with no fault of us.”

In February 2018, MDK sued Proplant. MDK’s complaint raises six 

causes of action. First, MDK claims that Proplant breached the October 

Document. Second, MDK claims that Proplant committed common law 

fraud by promising MDK in November 2016 that it would provide a bid bond 

even though it did not intend to do so. Third, MDK claims that Proplant 

breached the Commitment Agreement. Fourth, MDK claims that Proplant 

made negligent misrepresentations related to the Commitment Agreement. 

Fifth, MDK claims that Proplant fraudulently induced MDK into signing the 

Commitment Agreement. Finally, MDK claims that Proplant committed 

common law fraud with respect to the Commitment Agreement.

On February 20, 2018, the district court issued an “Order for 

Conference,” ordering the parties to exchange initial disclosures and to be 

“prepared to discuss discovery in a conference so that the court may fashion 

a brief, effective management plan.” The court ordered counsel to “appear 

for an initial pretrial conference” on May 14, 2018. At that conference, the 

court ordered the parties to “file a joint chronology with supporting data” by 

May 30. The court also ordered, “Formal discovery is quashed. The parties 

will talk.” Finally, the court ordered the dismissal of several Proplant 

representatives from the case. On June 26, the court issued another order. In 

addition to dismissing another Proplant defendant and repeating the court’s 

prior admonition that “[t]he parties will talk,” this order instructed the 

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parties to submit a document explaining “to the court why the project with 

[YPFB] ended and what steps should be taken to advance the litigation.” 

Finally, on August 1, the court ordered the parties to “exchange their data 

about the life of the deal and to “tell the court whether they want to mediate 

and with whom.” The court also signed an order establishing “a procedure 

for disclosing confidential information, protecting it, and challenging it.”

On September 4, 2018, Proplant moved for summary judgment, 

asking the district court “to dismiss MDK’s claims in their entirety.” The 

court granted the motion, dismissing both of MDK’s breach of contract 

claims along with its various tort claims. MDK appealed.

II.

MDK argues that the district court abused its discretion by ruling on 

Proplant’s summary judgment motion before the parties had completed 

discovery.

The Federal Rules of Civil Procedure give district courts the power to 

grant summary judgment motions before the parties have completed 

discovery. See Fed. R. Civ. P. 56(b) (“Unless a different time is set by 

local rule or the court orders otherwise, a party may file a motion for 

summary judgment at any time until 30 days after the close of all 

discovery.”); Mendez v. Poitevent, 823 F.3d 326, 336 (5th Cir. 2016) (“Rule 

56 does not require that any discovery take place before summary judgment 

can be granted.” (citation omitted)). The Rules also protect parties from 

premature summary judgment motions, providing that if a “nonmovant 

shows by affidavit or declaration that, for specified reasons, it cannot present 

facts essential to justify its opposition, the court may: (1) defer considering 

the motion or deny it; (2) allow time to obtain affidavits or declarations or to 

take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P.

56(d). However, “non-moving parties requesting Rule 56(d) relief ‘may not 

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simply rely on vague assertions that additional discovery will produce 

needed, but unspecified, facts.’” Am. Family Life Assurance Co. of Columbus 

v. Biles, 714 F.3d 887, 894 (5th Cir. 2013) (quoting Raby v. Livingston, 600 

F.3d 552, 561 (5th Cir. 2010)). “Instead, the non-moving party must ‘set 

forth a plausible basis for believing that specified facts, susceptible of 

collection within a reasonable time frame, probably exist and indicate how 

the emergent facts, if adduced, will influence the outcome of the pending 

summary judgment motion.’” Id.(quoting Raby, 600 F.3d at 561). We review 

a district court’s denial of a Rule 56(d) request for abuse of discretion. 

Mendez, 823 F.3d at 331.

Here, MDK did not file in the district court a Rule 56(d) affidavit or 

declaration requesting additional discovery. MDK did briefly argue in its 

response to Proplant’s summary judgment motion that the “motion for 

summary judgment is premature because discovery is incomplete.” 

However, the response did not “identify specific facts below that would alter 

the district court’s analysis” or in any way “demonstrate . . . how the 

additional discovery would likely create a genuine [dispute] of material fact.”

Mendez, 823 F.3d at 337 (cleaned up).3 Rather, it simply asserted that “no 

depositions have been held, nor have interrogatories, requests for admission, 

nor requests for documents been exchanged between the parties” and that 

the “defendant has repeatedly failed to provide evidence of its allegations

despite numerous opportunities to do so.” Accordingly, assuming arguendo 

that MDK’s response to Proplant’s summary judgment motion qualifies as a 

Rule 56(d) request for additional discovery, the court did not abuse its 

3 In 2010, the wording of the summary judgment standard was revised to refer to a 

genuine “dispute” of material fact, rather than a genuine “issue.” See Fed. R. Civ. P. 56 

advisory committee’s note to 2010 amendment. Accordingly, where appropriate, this 

opinion substitutes “dispute” for “issue.”

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discretion by implicitly denying the request. Cf. Washington v. Allstate Ins. 

Co., 901 F.2d 1281, 1285-86 (5th Cir. 1990) (“Assuming, without deciding, 

that Washington’s request for discovery in his supplemental memorandum 

constituted a request for a Rule 56(f) continuance, we find that the trial judge 

did not abuse his discretion in denying the request.”).4 And because MDK 

did not meet the Rule 56(d) standard for deferring summary judgment, the 

district court did not err by ruling on Proplant’s summary judgment motion 

before the parties had completed discovery.

III.

MDK suggests in its reply brief that Proplant’s summary judgment 

motion was “legally deficient” under Federal Rule of Civil Procedure 56 

because the motion identifies “dispositive facts” rather than “undisputed 

facts” and relies on “inadmissible hearsay. MDK also contends in its reply 

brief that the district court’s summary judgment order was “legally 

deficient” because its “assumes undisputed facts” and dismissed MDK’s 

tort claims “sua sponte.” However, MDK’s opening brief barely mentions 

these arguments and does not support them with any citations either to legal 

authorities or to the record.

An appellant’s brief must contain the “appellant’s contentions and 

the reasons for them, with citations to the authorities and parts of the record 

on which the appellant relies.” Fed. R. App. P. 28(a)(8)(A). “A party that 

asserts an argument on appeal, but fails to adequately brief it, is deemed to 

have waived it.” United States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010) 

(citation omitted). Moreover, because we do not consider issues raises for the 

first time in an appellant’s reply brief, see, e.g., Alaniz v. Zamora-Quezada, 591 

4 Rule 56(f) was recodified as Rule 56(d) in 2010. See Fed. R. Civ. P. 56 advisory 

committee’s note to 2010 amendment.

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F.3d 761, 777 (5th Cir. 2009), “[a]n appellant abandons all issues not raised 

and argued in its initial brief on appeal,” Cinel v. Connick, 15 F.3d 1338, 1345 

(5th Cir. 1994). 

MDK’s opening brief failed to adequately present its arguments that 

Proplant’s summary judgment motion and the district court’s summary 

judgment order were “legally deficient.” Accordingly, MDK has waived 

these issues, and we do not consider them.

IV.

Finally, MDK argues that the district court erred by granting 

summary judgment in favor of Proplant on MDK’s breach of contract 

claims.5

“We review de novo a district court’s grant of summary judgment.” 

Nola Spice Designs, L.L.C. v. Haydel Enterprises, Inc., 783 F.3d 527, 536 (5th 

Cir. 2015). “Summary judgment is appropriate ‘if the movant shows that 

there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “A 

genuine dispute of material fact exists when the ‘evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.’” Id. (quoting 

Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013)). 

The party moving for summary judgment “bears the initial responsibility of 

informing the district court of the basis for its motion, and identifying those 

portions of [the record] which it believes demonstrate the absence of a 

genuine [dispute] of material fact.” Id. (quoting E.E.O.C. v. LHC Grp., Inc., 

5 The district court also granted summary judgment in favor of Proplant on MDK’s 

various tort claims. While MDK seeks reversal of these rulings on the above-described 

procedural grounds, it does not challenge the court’s judgment against its tort claims on 

the merits.

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773 F.3d 688, 694 (5th Cir. 2014)) (first alteration in original). However, 

“[o]nce the moving party fulfills this responsibility, the non-moving party 

must ‘go beyond the pleadings and by her own affidavits, or by the 

depositions, answers to interrogatories, and admissions on file, designate 

specific facts showing that there is a genuine [dispute] for trial.’” Id. (citation 

omitted). 

The parties agree that Texas law governs MDK’s breach of contract 

claims. Texas requires plaintiffs raising a claim for breach of contract to show 

that: “(1) a valid contract exists; (2) the plaintiff performed or tendered 

performance as contractually required; (3) the defendant breached the 

contract by failing to perform or tender performance as contractually 

required; and (4) the plaintiff sustained damages due to the breach.” 

Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd., 574 S.W.3d 882, 890 

(Tex. 2019). 

MDK raises two breach of contract claims. Its first breach of contract 

claim involves the October Document. The district court granted Proplant’s 

motion for summary judgment on this claim on the ground that the October 

Document “was not signed by both parties and did not create a valid 

contract.”

To prove “the existence of a valid contract,” the plaintiff must show, 

inter alia, that “the parties executed and delivered the contract with the 

intent that it be mutual and binding.” USAA Texas Lloyds Co. v. Menchaca, 

545 S.W.3d 479, 501 n.21 (Tex. 2018). MDK alleges in its complaint that as 

of November 11, 2016, it had not executed the October Document, and 

nothing in the record indicates that the October Document was subsequently 

executed. When “the non-movant bears the burden of proof at trial,” a party 

moving for summary judgment “may merely point to the absence of evidence 

and thereby shift to the non-movant the burden of demonstrating by 

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competent summary judgment proof that there is [a dispute] of material fact 

warranting trial.” Nola Spice Designs, 783 F.3d at 536 (citation omitted). In 

its summary judgment motion, Proplant argued that MDK had not executed 

the October Document. Because MDK has the burden of proof on this issue 

but has not pointed to any evidence suggesting that it did in fact execute the 

October Document, the district court did not err by granting summary 

judgment in favor of Proplant on MDK’s first breach of contract claim.

The district court also granted Proplant’s motion for summary 

judgment on MDK’s second breach of contract claim, which concerned the 

Commitment Agreement. The court reasoned that while YPFB “may have 

selected Proplant’s bid as the winning bid, . . . it would not be officially 

awarded until Proplant and [YPFB] finalized the terms with a signed 

contract.” However, YPFB “deserted the bid—for whatever reason—before 

it signed a contract with Proplant, so the bid was never awarded.” And, the 

court concluded, because “the bid being awarded was a condition precedent 

to Proplant’s obligations under the [Commitment Agreement], it did not 

breach the contract by not doing what MDK alleges.”

“A condition precedent is an event that must happen or be performed 

before a right can accrue to enforce an obligation.” Centex Corp. v. Dalton, 

840 S.W.2d 952, 956 (Tex. 1992). “A party seeking to recover under a 

contract bears the burden of proving that all conditions precedent have been 

satisfied.” Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 

283 (Tex. 1998). The Commitment Agreement required Proplant to take 

several actions, including paying MDK $500,000, “[i]f awarded with the 

Project,” that is, if YPFB awarded Proplant the O&M contract. MDK alleges 

in its complaint that Proplant was “awarded the project” on March 22, 2017. 

However, Proplant argued in its summary judgment motion that YPFB had 

not awarded it the project; in fact, Proplant argued, YPFB had deserted the 

project.

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Once again, when “the non-movant bears the burden of proof at 

trial,” a party moving for summary judgment “may merely point to the 

absence of evidence and thereby shift to the non-movant the burden of 

demonstrating by competent summary judgment proof that there is [a 

dispute] of material fact warranting trial.” Nola Spice Designs, 783 F.3d at 536 

(citation omitted). After Proplant argued that YPFB had not awarded it the 

project, MDK directed the court to an exhibit containing two untranslated 

documents written in Spanish. “Normally, the submission of foreign 

documents unaccompanied by English translations is error, and such 

documents would not be considered on appeal.” United States v. Valdivia, 

680 F.3d 33, 45 (1st Cir. 2012); see also Unified Buddhist Church of Vietnam v. 

Unified Buddhist Church of Vietnam, 838 F. App’x 809, 813 (5th Cir. 2020) 

(unpublished). MDK did not direct the court to any other evidence. MDK 

thus failed to meet its burden of demonstrating by competent evidence that 

there is a dispute of material fact as to whether YPFB awarded Proplant the 

O&M contract. Accordingly, the district court did not err in granting

Proplant’s motion for summary judgment on MDK’s second breach of 

contract claim.6

V.

For the foregoing reasons, we AFFIRM the judgment of the district 

court.

6 The Commitment Agreement imposed one obligation on Proplant that did not 

have a condition precedent: “[f]urnishing MDK with all the documents listed in the 

technical specifications documents of the Bid.” MDK argues that Proplant did not deliver 

certain documents to YPFB. However, MDK did not argue in the district court, and does 

not argue on appeal, that Proplant failed to deliver any documents to MDK. Accordingly, 

the question of whether Proplant breached this obligation is not before us. 

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