United States District Court, E.D. Texas, Sherman Division
BRIAN R. ALLEN, Plaintiff,
NOAH PRECISION, LLC, Defendant.
MEMORANDUM OPINION AND ORDER REGARDING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND MOTION TO
KIMBERLY C. PRIEST JOHNSON UNITED STATES MAGISTRATE JUDGE
matter is before the undersigned for all pre-trial and trial
matters pursuant to 28 U.S.C. § 636 and the consent of
the parties (see Dkt. 7). Now pending is Defendant
Noah Precision, LLC's (“Noah” or
“Defendant”) Motion for Summary Judgment (Dkt.
117). Plaintiff Brian R. Allen (“Allen” or
“Plaintiff”) has filed a response in opposition.
See Dkt. 127 (Sealed). Defendant's reply (Dkt.
139) objects to and moves to strike much of Plaintiff's
summary judgment evidence. See id. As set forth
below, Defendant's motion to strike (Dkt. 139) is DENIED
as moot, and Defendant's motion for summary judgment is
(Dkt. 117) is GRANTED in part and DENIED in part.
filed his state court action on August 15, 2014, in the 199th
District Court for Collin County, asserting claims against
Noah for breach of contract and quantum meruit.
Defendant Noah timely filed a notice of removal on September
23, 2014, on the basis of diversity jurisdiction
(see Dkt. 1). On January 29, 2015, Plaintiff's
Fifth Amended Complaint (the “Complaint”) (Dkt.
42), the operative complaint herein, asserted an additional
claim against Noah for fraudulent transfer, alleging that
Noah transferred its assets with the intent of preventing
Plaintiff from obtaining reimbursement for alleged business
expenses and from redeeming his ownership units (the
“Units”) at an allegedly agreed price. See
id. Defendants Peter M. Adams (“Adams”),
Lauda-Noah, LP (“Lauda-Noah”), and Lauda-Noah
Management, Inc. (“LNM”) have been dismissed from
this lawsuit. See Dkt. 89. Thus, Noah is the only
to Plaintiff, he was an employee of Noah from the date of its
organization in 2004 until August 2014. See Dkt. 42
at ¶8. Plaintiff alleges that during the course of his
employment with Noah, he was required to “travel
extensively on a national and international basis” and
to purchase equipment, which he stored in his home in Collin
County, Texas. See id. at ¶12. Plaintiff
further alleges that Noah agreed to reimburse him for his
“reasonable and necessary business expenses.”
See id. at ¶13. Plaintiff claims he was not
given any deadline for submission of his business expenses,
and was told to spend his time performing
“income-generating” work rather than taking the
time to prepare and submit his expenses, which according to
Plaintiff, is an “extremely complicated and
time-consuming task, involving thousands of receipts from
different countries with different currencies.” See
id. at ¶14. Plaintiff contends that when he
submitted approximately $89, 000.00, in unpaid business
expenses in August 2014, Noah refused to reimburse him and
then terminated him to avoid reimbursing his business
expenses and to avoid redeeming his Units at a
previously-agreed price. See id. at ¶18.
asserts that during Plaintiff's ten (10) years of
employment with the company, he submitted a business expense
report to Noah only once, in April 2005; that Plaintiff was
reimbursed for those expenses submitted in 2005; and
thereafter Plaintiff never submitted another business expense
report, despite repeated requests from Noah. See
Dkt. 117 at 8-9. Noah further asserts that Plaintiff was
issued a company credit card in May 2006, so that Noah could
timely track and pay for Plaintiff's business-related
expenses. Id. at 9. Yet, according to Noah,
Plaintiff chose to charge most of his expenses on multiple
personal credit cards and repeatedly failed to account for
his expenses. Id. Noah implemented a formal expense
reimbursement policy applicable to all employees in March
2012, which Noah alleges merely memorialized what its
expectations had been prior to formally publishing the
policy-that business expenses be submitted and accounted for
on a monthly basis. Id. The policy provided that
employees with business expenses prior to April 1, 2012, had
ninety (90) days to submit those expenses or they would not
be reimbursed. Id. According to Noah, Plaintiff
still refused to comply with the policy despite multiple
communications specifically informing Plaintiff that the
Policy did indeed apply to him. See id.
Plaintiff's claim he was to receive a previously agreed
price for his Units, Noah asserts there was never an agreed
redemption price for Plaintiff's Units, but rather the
redemption price was to be a fair market value as determined
by the methodology set forth in the company's operating
agreement (the “Operating Agreement”).
See Dkt. 117 at 15.
argues it is entitled to summary judgment for the following
1. Plaintiff's breach of contract claim for unreimbursed
business expenses fails because he cannot prove he performed
under any contract; he failed to comply with conditions
precedent that would have triggered Noah's performance
under any contract; he failed to follow Noah's policy
regarding submission of business expenses; and he admits he
does not know what his damages are, if any;
2. Plaintiff's quantum meruit claim fails
because he cannot prove he provided services or materials to
Noah for which he was not already compensated, and he admits
he does not know what his damages are, if any;
3. Alternatively, even if fact issues exist as to
Plaintiff' claims for business expenses, claims for
expenses incurred prior to 2010 are barred by the applicable
statutes of limitations;
4. Plaintiff cannot raise a genuine issue of material fact on
his claim related to his Units because he failed to perform
under the Operating Agreement; he cannot show Noah breached
the Operating Agreement; and he admits he does not know what
his damages are, if any; and
5. Plaintiff cannot establish a fraudulent transfer claim
because he admits he has no evidence that Noah had the intent
required by the applicable fraudulent transfer statute.
See Dkt. 117 at 12-23.
response, Plaintiff maintains he was told he need not submit
his expense reports because customer visits were considered a
higher priority by Noah (see Dkt 127 at ¶¶
7, 13), and that Noah's expense submission policies were
not conducive to reporting and accounting for Plaintiff's
extensive business-related foreign travel on behalf of the
company (see Dkt 127 at ¶¶ 11-14).
Plaintiff also maintains that the redemption value Noah
offered for his Units was insufficient. See id. at
Court notes that Plaintiff's response raises other
matters not relevant to his claims herein. For example,
Plaintiff's claim that he was not paid his full salary
(see Dkt. 127 at 6) is not an asserted claim in
Plaintiff's lawsuit. See Dkt. 42.
Plaintiff's Complaint asserts three (3) causes of action:
(1) a breach of contract claim for business expenses and the
redemption value of his Units; (2) a quantum meruit
claim (alternative to his breach of contract claim) for his
business expenses; and (3) a fraudulent transfer claim.
Id. at 6-9. Therefore, Plaintiff has not timely
asserted a claim for salary payments, and the Court will not
consider it here. The Court will also not address any
assertions by Plaintiff regarding the circumstances of his
termination, as no employment-related claims have been
asserted in this action.
judgment is appropriate when, viewing the evidence and all
justifiable inferences in the light most favorable to the
non-moving party, there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(c); Hunt v. Cromartie, 526 U.S.
541, 549 (1999). The appropriate inquiry is “whether
the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
ruling on a motion for summary judgment, the court is
required to view all facts and inferences in the light most
favorable to the nonmoving party and resolve all disputed
facts in favor of the nonmoving party. Boudreaux v. Swift
Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005).
Further, a court “may not make credibility
determinations or weigh the evidence” in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000);
Anderson, 477 U.S. at 254-55.
party moving for summary judgment has the initial burden to
prove there are no genuine issues of material fact for trial.
Provident Life & Accident Ins. Co. v. Goel, 274
F.3d 984, 991 (5th Cir. 2001). In sustaining this burden, the
movant must identify those portions of pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
The moving party, however, “need not negate the
elements of the nonmovant's case.” Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en
banc). The movant's burden is only to point out the
absence of evidence supporting the nonmoving party's
case. Stults v. Conoco, Inc., 76 F.3d 651, 655 (5th
response, the nonmovant's motion “may not rest upon
mere allegations contained in the pleadings, but must set
forth and support by summary judgment evidence specific facts
showing the existence of a genuine issue for trial.”
Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455,
458 (5th Cir. 1998) (citing Anderson, 477 U.S. at
255-57). Once the moving party makes a properly supported
motion for summary judgment, the nonmoving party must look
beyond the pleadings and designate specific facts in the
record to show there is a genuine issue for trial.
Stults, 76 F.3d at 655. The citations to evidence
must be specific, as the district court is not required to
“scour the record” to determine whether the
evidence raises a genuine issue of material fact. E.D. Tex.
Local R. CV-56(d). Neither “conclusory
allegations” nor “unsubstantiated
assertions” will satisfy the nonmovant's burden.
Stults, 76 F.3d at 655.
has submitted the following evidence in support of its
summary judgment motion:
1) Exhibit A: Transcript from April 17, 2017 deposition of
Plaintiff Brian Allen with the following deposition exhibits:
a) Exh. 3: Defendant Noah Precision LLC's Second Set of
Interrogatories to Plaintiff Brian R. Allen;
b) Exh. 4: Plaintiff's Original Petition;
c) Exh. 5: Noah Precision LLC Employee Business Expense
d) Exh. 10: Email from Brian Allen dated April 18, 2012;
e) Exh. 11: Email from Brian Allen dated April 26, 2012;
f) Exh. 12: Email from Pete Adams dated April 26, 2012;
g) Exh. 13: Email from Brian Allen dated April 26, 2012;
h) Exh. 14: Email from Brian Allen dated April 27, 2012;
i) Exh. 15: Email from Brian Allen dated May 9, 2012;
j) Exh. 16: Email from Brian Allen dated June 5, 2012;
k) Exh. 17: Email from Brian Allen dated April 7, 2013;
l) Exh. 18: Email from Vince Calvo dated February 5, 2014;
m) Exh. 19: Email from Bruce Seifried dated February 5, 2014;
n) Exh. 20: Email from Brian Allen dated March 11, 2014;
o) Exh. 21: Email from Bruce Seifried dated July 15, 2014;
p) Exh. 22: Email from Brian Allen dated July 24, 2014;
q) Exh. 23: Email from Pete Adams dated July 24, 2014;
r) Exh. 24: Email from Brian Allen dated July 24, 2014;
s) Exh. 25: Email from Brian Allen dated July 27, 2014;
t) Exh. 26: Email from Brian Allen dated July 27, 2014;
u) Exh. 27: Email from Pete Adams dated July 28, 2014;
v) Exh. 28: Email from Pete Adams dated July ...