United States District Court, N.D. Texas, Dallas Division
ZANI STANISSIS, INDIVIDUALLY and AS REPRESENTATIVE OF THE ESTATE OF HER HUSBAND, CAVIN STANISSIS, et al., Plaintiffs,
DYNCORP INTERNATIONAL LLC, et al., Defendants.
MEMORANDUM OPINION AND ORDER
A. FITZWATER UNITED STATES DISTRICT JUDGE.
action by, or on behalf of, several South African security
workers seeking to recover on contract, fraud, and related
theories for the denial disability benefits for employment
performed in Iraq and Afghanistan, defendant DynCorp
International LLC (“DynCorp”) moves to dismiss
for failure to state a claim, for summary judgment, and to
strike plaintiffs' summary judgment evidence or for
related relief. For the reasons that follow, the court grants
in part and denies in part the motions for summary judgment,
denies the motion to strike, and denies the motion to dismiss
as moot. Plaintiffs' breach of contract claims and the
promissory estoppel claims of all but two plaintiffs remain
for trial; the other claims are dismissed.
court has issued several memorandum opinions and orders in
this case, and the relevant background facts are set out in
Stanissis v. DynCorp International LLC, 2015 WL
1931417, at *1-2 (N.D. Tex. Apr. 29, 2015) (Fitzwater, J.),
Stanissis v. DynCorp International LLC, 2015 WL
9478184, at *1-2 (N.D. Tex. Dec. 29, 2015) (Fitzwater, J.)
(“Stanissis II”), and Stanissis v.
DynCorp International LLC, 2016 WL 4159397, at *1-2
(N.D. Tex. Aug 5, 2016) (Fitzwater, J.). The court will
therefore limit its discussion of the facts to those that are
relevant to this memorandum opinion and order.
are consolidated actions brought by plaintiffs Zani Stanissis
(“Stanissis”), individually and as representative
of the estate of her husband, Cavin Stanissis
(“Cavin”), Leon Botha (“Botha”),
Andre Cronje (“A. Cronje”), Johanna M. Cronje
(“J. Cronje”), Jaco Botes (“Botes”),
Henry Bredenkamp, Dean Capazorio, Gideon Delport
(“Delport”), Stefanus Du Preez, Carel Fourie
(“Fourie”), Gert Hitzeroth
(“Hitzeroth”), Arnoldus Kieser (“A.
Kieser”), George Kieser (“G. Kieser”),
Catharina Louw (“Louw”), Gerard Merrick,
Christiaan Oosthuizen (“Oosthuizen”), Hady'n
Potgieter (“Potgieter”), Danie Rademeyer
(“Rademeyer”), Chris Badenhorst
(“Badenhorst”), Johann Steenberg
(“Steenberg”), and Adriano Manuel
(“Manuel”). Plaintiffs seek disability benefits
that they maintain DynCorp promised them in exchange for
undertaking employment as security workers in Iraq and
Afghanistan. Plaintiffs all signed employment contracts
with DynCorp FZ International (“DynCorp FZ”), a
separate company based in Dubai, which then leased the
employees back to DynCorp. They allege that DynCorp's promise
was separate from any employment contract with DynCorp FZ,
but the details of the promise were included in a document
attached to their employment contracts with DynCorp FZ,
entitled “Attachment A.” Plaintiffs contend that
DynCorp never provided the benefits it promised, including
disability benefits for mental illnesses such as
post-traumatic stress disorder (“PTSD”).
court's prior opinions, it considered DynCorp's and
then-codefendant Midlands Claim Administrators, Inc.'s
(“Midlands'”) motions to dismiss. The court
dismissed all claims against Midland, and it dismissed all
claims against DynCorp except for some plaintiffs' claims
for fraud and fraudulent inducement,  breach of oral or implied
contract, promissory estoppel, and breach of the duty of good
faith and fair dealing. Plaintiffs' operative pleadings
are their second amended complaint (“amended
complaint”) and Manuel's first amended complaint
motions are pending for decision: (1) DynCorp's motion to
dismiss the fraud count of Manuel's amended complaint;
(2) DynCorp's motion for summary judgment on the entire
case; (3) DynCorp's motion for summary judgment on each
cause of action; (4) DynCorp's motion for summary
judgment on all claims of certain individual plaintiffs; (5)
DynCorp's motion for partial summary judgment on damages
as to the maximum amount of any potential disability benefits
recovery, and plaintiffs' attorney's fees,
extra-contractual damages, and punitive damages remedies; and
(6) DynCorp's motion to strike plaintiffs' December
2016 declarations, or alternative reopening of discovery and
requiring plaintiffs to file third amended
complaint. Plaintiffs oppose the motions.
summary judgment burden depends on whether it is addressing a
claim or defense for which it will have the burden of proof
at trial. To be entitled to summary judgment on a defense for
which it will have the burden of proof, DynCorp “must
establish ‘beyond peradventure all of the essential
elements of the . . . defense.'” Bank One,
Tex., N.A. v. Prudential Ins. Co. of Am., 878 F.Supp.
943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th
Cir. 1986)). This means that DynCorp must demonstrate that
there are no genuine and material fact disputes and that it
is entitled to summary judgment as a matter of law. See
Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 412
(5th Cir. 2003). “The court has noted that the
‘beyond peradventure' standard is
‘heavy.'” Carolina Cas. Ins. Co. v.
Sowell, 603 F.Supp.2d 914, 923-24 (N.D. Tex. 2009)
(Fitzwater, C.J.) (quoting Cont'l Cas. Co. v. St.
Paul Fire & Marine Ins. Co., 2007 WL 2403656, at *10
(N.D. Tex. Aug. 23, 2007) (Fitzwater, J.)).
Dyncorp will not have the burden of proof at trial as to a
claim, it need only point the court to the absence of
evidence of any essential element of plaintiffs' claim.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once it does so, plaintiffs must go beyond their
pleadings and designate specific facts demonstrating that
there is a genuine issue for trial. See Id. at 324;
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc) (per curiam). An issue is genuine if the
evidence is such that a reasonable jury could return a
verdict for the party with the burden of proof. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Plaintiffs' failure to produce proof as to any
essential element of a claim renders all other facts
immaterial. TruGreen Landcare, L.L.C. v. Scott, 512
F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.). Summary
judgment is mandatory where plaintiffs fail to meet this
burden. Little, 37 F.3d at 1076.
court turns initially to DynCorp's motion to strike
plaintiffs' December 2016 declarations, or alternative
reopening of discovery and requiring plaintiffs to file third
amended complaint. DynCorp contends that plaintiffs'
declarations are improper for two reasons: (1) they raise new
legal claims and factual bases for legal theories, and (2)
they are inconsistent with, and contradict, plaintiffs'
deposition testimony and undisputed facts in the case, and
are invented to create factual disputes to defeat summary
court can “disregard claims or theories of liability
not present in the complaint and raised first in a motion
opposing summary judgment.” De Franceschi v. BAC
Home Loans Servicing, L.P., 477 Fed.Appx. 200, 204 (5th
Cir. 2012). And the court in its discretion can disregard
declarations submitted in response to a summary judgment
motion that, without explanation, contradict prior testimony.
Keller v. Coastal Bend Coll., 629 Fed.Appx. 596, 601
n.4 (5th Cir. 2015) (reviewing district court's exclusion
of contradictory later statement for abuse of discretion). It
is therefore unnecessary in the context of this lawsuit for
the court to strike plaintiffs' declarations in
toto; instead, if material to the court's decision
on one of DynCorp's motions, the court will individually
analyze whether plaintiffs are raising a new legal claim or
factual basis for a legal theory, or are relying on
declarations that are inconsistent with, and contradict,
their deposition testimony and undisputed facts in the case.
Nor is it necessary, given this approach, to reopen discovery
or to require that plaintiffs file a third amended complaint.
court therefore denies DynCorp's motion to strike or
reopen discovery and require plaintiffs to file a third
court next considers DynCorp's motion for summary
judgment on the entire case.
contends on three grounds that it is entitled to summary
judgment as a matter of law on all of plaintiffs' claims:
(1) DynCorp is not a party to the employment contracts and
therefore is not liable for DynCorp FZ's promises; (2)
the employment contracts contained integration clauses that
disclaimed any other representations made about benefits
outside of Attachment A, and DynCorp can enforce those terms
as a third-party beneficiary; and (3) the offer letters
contain similar integration clauses stating that each
plaintiff did not rely on benefits descriptions in Attachment
A in accepting employment. DynCorp's arguments rely on
the assumption that “Plaintiffs' entire case is
that [DynCorp] promised and did not later provide them the
disability benefits described in . . . Attachment A[.]”
D. 10/28/16 Br. 3 (ECF 147).
maintain that any promise DynCorp made, although referenced
in Attachment A, was completely separate from their
employment contracts with DynCorp FZ. Plaintiffs posit that
DynCorp “promised the $250, 000.00 in insurance
benefits. This contract was separate and distinct from
DynCorp FZ's conduct, which referenced $85, 000.00 in
insurance benefits in its contract.” Ps. 12/9/16 Br. 3
(ECF 167). Plaintiffs counter that nothing in the employment
contracts they executed with DynCorp FZ foreclosed any
separate promise by DynCorp for benefits.
court agrees with plaintiffs. DynCorp cites no case law
supporting the theory that plaintiffs cannot have entered
into contracts for benefits with DynCorp that were separate
from their employment agreements with DynCorp FZ. Therefore,
it is not dispositive under plaintiffs' theory of the
case that DynCorp is not a party to plaintiffs'
employment contracts with DynCorp FZ.
DynCorp entitled to summary judgment based on the integration
clauses in the employment contracts and offer letters with
DynCorp FZ. Even assuming that such integration
clauses could effectively bar plaintiffs' claims, DynCorp
has not established that it is a third-party beneficiary of
the contracts or letters.
Courts should presume that an agreement confers no
third-party enforcement rights unless it clearly appears that
the contract intends that the third party benefit, to the
point of suing upon the contract. A contract does not confer
third-party beneficiary rights unless (1) the contract
plainly expresses the third-party obligation of the
bargain-giver, (2) it is unmistakable that a benefit to the
third party is within the contemplation of the primary
contracting parties, and (3) the primary parties contemplate
that the third party would be vested with the right to sue
for enforcement of the contract.
Hudson v. Chartoni Inc., 2016 WL 828053, at *3 (Tex.
App. Mar. 3, 2016, no pet.) (mem. op.) (citation omitted).
DynCorp has not demonstrated that it can enforce the
integration clauses in plaintiffs' employment contracts
and offer letters with DynCorp FZ as a third-party
the court denies summary judgment on the entire case on these
also maintains that plaintiffs have no evidence that any
recruiter made promises of benefits before employment began,
or that the recruiter was a DynCorp employee or
agent. DynCorp contends that this precludes
recovery on all of plaintiffs' claims because each claim
requires that plaintiffs establish that they relied on
Attachment A in accepting employment.
court concludes that DynCorp has failed to shift the summary
judgment burden on this issue because it does not point to a
lack of evidence of an essential element of plaintiffs'
claims. See Saunders Family Ventures, LLC v. Domestic
Natural Res., LLC, 2017 WL 106794, at *8 (N.D. Tex. Jan.
11, 2017) (Fitzwater, J.) (holding that, where defendants
failed to point to absence of evidence of any essential
element of plaintiffs' breach of fiduciary duty claim,
they failed to shift the burden to plaintiffs and were not
entitled to summary judgment). Plaintiffs' claims rest on
allegations that “[DynCorp] (specifically employee Jas
Gil) promised [pre-2006 plaintiffs] that they would [be]
covered for $125, 000.00 in disability benefits[, ]”
Ps. 12/9/16 Br. 6 (ECF 167), and DynCorp “promised
[post-2006 plaintiffs] $250, 000.00 in disability benefits[,
]” id. at 9. Plaintiffs do not allege that
only recruiters promised benefits. It is thus
entirely possible and consistent with the allegations of
plaintiffs' amended complaint that, in addition to
recruiters, someone else acting on DynCorp's behalf
represented that employees would receive disability benefits.
See, e.g., Am. Compl. ¶¶ 28 & 29 (ECF
52) (alleging that when plaintiff Botha arrived in Baghdad in
October 2004 and signed documents, including employment
agreement, his benefits were explained to him by Human
Resources Manager Sonja Edwards; that in 2005 DynCorp
Director Jas Gill (“Gill”) also explained the
benefits to Botha at a meeting in Baghdad; that Botha's
benefits were explained to him by his team leader Rick Bonus
and PSD Commander Garry Lawrence; and that in December 2006
DynCorp again represented to Botha that he would receive
personal accident benefits under Attachment A if he suffered
an on-the-job injury; and alleging that “before
accepting his employment offer, [Botha] was promised personal
accident benefits by [DynCorp], described in attachment
‘A.' [DynCorp's] representatives told Botha
that he was covered for disability claims for personal injury
accidents, and that he would receive both workers'
compensation and personal accident insurance if he was
injured on-the-job, ” id. at ¶ 29.).
DynCorp has not established that it is entitled to summary
judgment on plaintiffs' entire case, the court denies the
motion and proceeds to consider DynCorp's remaining
court next considers DynCorp's motion for summary
judgment on all claims of certain individual plaintiffs.
first contends that nine plaintiffs' claims fail because
they testified in their depositions that they had not seen or
did not recall seeing Attachment A. At least as to the two
claims that remain following today's decision-breach of
contract and promissory estoppel-the court disagrees.
breach of contract claim rests on the premise that plaintiffs
and DynCorp entered into implied or oral contracts.
See Am. Compl. ¶ 209 (ECF 52) (“While
this contract was not a written agreement, an implied or
verbal contract existed between the Plaintiffs and
DynCorp[.]”). Attachment A is alleged to set out the
benefits to which plaintiffs are entitled. See, e.g.,
Id. at ¶ 8. But plaintiffs need not have actually
seen Attachment A to prevail on their contract claims because
they are not relying on it as the contract with DynCorp but
instead to prove that they entered into implied or oral
contracts with DynCorp. See Ps. 12/9/16 Br. 15 (ECF
167) (“But importantly, Attachment A only provides
evidence of the implied contract with DynCorp International.
Attachment A is not the actual agreement between Plaintiff[s]
and DynCorp International.” (bold font omitted)).
plaintiffs' promissory estoppel claims fail on this
basis. Plaintiffs rely for these claims on the premise that
“Defendant [DynCorp] (and its agents) promised benefits
to Plaintiffs in exchange for their work overseas.” Am.
Compl. ¶ 216 (ECF 52). A plaintiff need not have
actually seen Attachment A if DynCorp represented orally the
benefits that Attachment A conferred. And plaintiffs have
introduced evidence that it did. See, e.g., Ps.
12/9/16 App. 5 (ECF 167) (Badenhorst declaration) (averring
that it was his “understanding from the verbal
statements and conduct of [DynCorp] that the terms of the
insurance that was allegedly secured by [DynCorp] mirrored
those outlined in the May 12, 2003 Attachment A benefits
motion is therefore denied on this ground.
next contends that Stanissis' claims on behalf of her
husband Cavin for breach of contract, promissory estoppel,
and breach of the duty of good faith and fair dealing fail
because (1) she has insufficient evidence to support her
claims, and (2) she does not have standing on his behalf. The
court will consider the standing argument here; it will defer
consideration of DynCorp's argument regarding the
sufficiency of Stanissis' evidence for each of her three
claims when it discusses the claims below.
DynCorp and Stanissis both discuss whether Stanissis has
standing to bring her suit, the question is one of capacity
to sue rather than standing. “The issue of standing
focuses on whether a party has a sufficient relationship with
the lawsuit so as to have a ‘justiciable interest'
in its outcome, whereas the issue of capacity ‘is
conceived of as a procedural issue dealing with the personal
qualifications of a party to litigate.'”
Austin Nursing Ctr., Inc. v. Lovato, 171
S.W.3d 845, 848 (Tex. 2005) (citing Charles Alan Wright,,
Federal Practice and Procedure § 1559, at 441
(2d ed. 1990)). Whether someone may bring suit on an
estate's behalf is a question of the individual's
“capacity to bring a survival claim.”
Id. at 850. The court will therefore construe the
parties' arguments as relating to whether Stanissis has
the capacity to sue.
amended complaint, plaintiffs allege that Stanissis has
capacity to sue under Tex. Civ. Prac. & Rem. Code Ann.
§§ 71.004 and 71.021 (West 2017), and Texas common
law. But § 71.004 addresses wrongful death actions, and
§ 71.021 pertains to personal injury claims, neither of
which is relevant to plaintiffs' claims. Stanissis must
therefore rely on Texas common law to establish her capacity
the common law, actions for breach of contract . . .
survive the death of either party.” Launius v.
Allstate Ins. Co., 2007 WL 1135347, at *4 (N.D. Tex.
Apr. 17, 2007) (Boyle, J.) (citing Thomes v. Porter,
761 S.W.2d 592, 594 (Tex. App. 1988, no writ)). This is
because “the basic rule under the common law [was] that
actions primarily affecting property and property rights
survived the death of the aggrieved party whereas actions
asserting purely personal rights did not.” Id.
It follows that other actions sounding in contract, such as
promissory estoppel, survive the death of either party.
general rule under Texas law is that an estate administrator
has the exclusive capacity to sue for recovery of estate
property. Kenseth v. Dall. Cnty., 126 S.W.3d 584,
595 (Tex. App. 2004, pet. denied) (citing Frazier v.
Wynn, 472 S.W.2d 750, 752 (Tex. 1971)). When no
administration is pending or necessary, an heir may sue on
the decedent's behalf. Frazier, 472 S.W.2d at
752. Heirs have capacity to sue “if they allege and
prove that there is no administration pending and that none
is necessary.” McPeak-Torres v. Brazoria
Cnty., 2014 WL 12591850, at *4 (S.D. Tex. Nov. 5, 2014)
(emphasis omitted), rec. adopted, 2015 WL 12748276,
at *3 (S.D. Tex. Jan. 22, 2015).
contends that Stanissis cannot establish standing to sue
because she concedes in response that she did not have
standing when the lawsuit was filed. As DynCorp correctly
notes, standing must be established at the time suit is filed
and cannot be cured. See, e.g., Lewis v.
Ascension Parish Sch. Bd, 662 F.3d 343, 347 (5th Cir.
2011) (per curiam). But as the court explains above, the
issue here is capacity, not standing, to sue. And
“[u]nlike standing . . . capacity to sue can be
cured.” Id. (quoting Fed.R.Civ.P. 17(c)). In
Lovato, for example, the plaintiff lacked capacity
to sue when she initially filed suit because the limitations
period for the estate to sue had not expired.
Lovato, 171 S.W.3d at 852. But the limitations
period elapsed while the suit was pending, and the plaintiff
gained capacity to sue. Id. The Supreme Court of
Texas held that the plaintiff's newfound capacity after
filing suit cured the defect in capacity. Id.
Stanissis declared that Cavin's estate closed in 2014,
and all of the estate's debts were resolved. Whether the
estate was closed when she filed the suit is immaterial.
See Id. Stanissis has proved that there is no
administration pending and no need for future administration.
See, e.g., McPeak-Torres, 2014 WL 12591850,
at *3 . The court therefore concludes that she has
established her capacity to sue.
next challenges all of Badenhorst's claims as time-barred
based on deposition testimony that DynCorp alleges shows his
claims accrued in 2009.
a general rule, a cause of action accrues and the statute of
limitations begins to run when facts come into existence that
authorize a party to seek a judicial remedy.”
Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 221 (Tex. 2003) (citing Johnson & Higgins
of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507,
514 (Tex. 1998)). “In most cases, a cause of action
accrues when a wrongful act causes a legal injury, regardless
of when the plaintiff learns of that injury or if all
resulting damages have yet to occur.” Id.
(citing S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996)).
cause of action for breach of contract generally accrues when
the contract is breached.” TIB-The Indep.
BankersBank v. Canyon Cmty. Bank, 13 F.Supp.3d 661, 668
(N.D. Tex. 2014) (Fitzwater, C.J.) (citing Stine v.
Stewart, 80 S.W.3d 586, 592 (Tex. 2002)). A cause of
action for promissory estoppel “accrues at the time the
promisor breaches its promise to the promisee.”
Bloom v. Burkholder Corp., 1995 WL 379272, at *3
(Tex. App. May 30, 1995, no pet.) (not designated) (citing