United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
Kenneth M. Hoyt United States District Judge.
the Court is the plaintiff's, RLI Insurance Company (the
“plaintiff”) motion for summary judgment (Dkt.
No. 36), the defendant's, Stephen Glynn Roberts (the
“defendant”) response to the plaintiff's
motion (Dkt. No. 41), and the plaintiff's reply in
support of its motion (Dkt. No. 44), the defendant's
motion for summary judgment (Dkt. No. 38), the
plaintiff's memorandum opposing the defendant's
motion for summary judgment (Dkt. No. 43), the
defendant's motion to dismiss (Dkt. No. 37) and the
plaintiff's memorandum opposing the defendant's
motion to dismiss (Dkt. No. 42). The plaintiff's motion
for summary judgment is GRANTED. The
defendant's motion for summary judgment is DENIED and his
motion to dismiss is deemed moot.
plaintiff is a corporation that provides surety bonds. Its
principal place of business is Peoria, Illinois. Around
January 12, 2012, the defendant a citizen of Texas along with
the Northstar Offshore Group, LLC (Northstar) entered into an
indemnity agreement with the plaintiff in exchange for the
issuance of bonds. Pursuant to the terms of the indemnity
agreement, the plaintiff is entitled to receive premium
payments, demand collateral security, and obtain indemnity
against losses and expenses related to any bonds that it
issues. In reliance upon its rights under the indemnity
agreement, the plaintiff issued nine bonds on behalf
August 12, 2016, a petition for involuntary bankruptcy was
filed against Northstar. The bankruptcy case remains pending
and Northstar remains subject to the automatic stay. By
letters dated February 14, February 20 and March 7, 2017, the
plaintiff made demands on the defendant for the unpaid
premiums. In the indemnity agreement, the defendant,
president of Northstar, is identified as personal indemnitor.
After not receiving payment, by letter dated April 3, 2017,
the plaintiff demanded that the defendant deliver evidence of
the complete discharge of all nine bonds and pay the
plaintiff $169, 433, for the defendant's outstanding
premiums. The defendant failed to pay.
on April 20, 2017, the plaintiff filed suit against the
defendant for damages, specific performance, equitable, and
other relief. On November 16, 2017, the Louisiana Department
of Natural Resources, Office of Conservation made a claim on
the Creole Bond (one of the nine bonds) and demanded the
plaintiff remit full penal sum in the amount of $1, 250, 000.
On February 27, 2019, the plaintiff filed a motion for
summary judgement. On March 19, 2019, the defendant filed a
response to the plaintiff's motion. On March 26, 2019,
the plaintiff filed a reply in support of its motion.
APPLICABLE TO CASE
of the Federal Rules of Civil Procedure authorizes summary
judgment against a party who fails to make a sufficient
showing of the existence of an element essential to the
party's case and on which that party bears the burden at
trial. See Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc). The movant bears the
initial burden 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 issue of material fact.” Celotex,
477 U.S. at 323; see also Martinez v. Schlumber,
Ltd., 338 F.3d 407, 411 (5th Cir. 2003). Summary
judgment is appropriate where “the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(c).
movant meets its burden, the burden then shifts to the
nonmovant to “go beyond the pleadings and designate
specific facts showing that there is a genuine issue for
trial.” Stults v. Conoco, Inc., 76 F.3d 651,
656 (5th Cir. 1996) (citing Tubacex, Inc. v. M/V
Risan, 45 F.3d 951, 954 (5th Cir. 1995);
Little, 37 F.3d at 1075). “To meet this
burden, the nonmovant must ‘identify specific evidence
in the record and articulate the ‘precise manner'
in which that evidence support[s] [its] claim[s].'”
Stults, 76 F.3d at 656 (citing Forsyth v.
Barr, 19 F.3d 1527, 1537 (5th Cir.), cert.
denied, 513 U.S. 871, 115 S.Ct. 195, 130 L.Ed.2d 127
(1994)). It may not satisfy its burden “with some
metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.” Little, 37 F.3d at
1075 (internal quotation marks and citations omitted).
Instead, it “must set forth specific facts showing the
existence of a ‘genuine' issue concerning every
essential component of its case.” Am. Eagle
Airlines, Inc. v. Air Line Pilots Ass'n, Intern.,
343 F.3d 401, 405 (5th Cir. 2003) (citing Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.
fact is material only if its resolution would affect the
outcome of the action, . . . and an issue is genuine only
‘if the evidence is sufficient for a reasonable jury to
return a verdict for the [nonmovant].'” Wiley
v. State Farm Fire and Cas. Co., 585 F.3d 206, 210 (5th
Cir. 2009) (internal citations omitted). When determining
whether a genuine issue of material fact has been
established, a reviewing court is required to construe
“all facts and inferences . . . in the light most
favorable to the [nonmovant].” Boudreaux v. Swift
Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005)
(citing Armstrong v. Am. Home Shield Corp., 333 F.3d
566, 568 (5th Cir. 2003)). Likewise, all “factual
controversies [are to be resolved] in favor of the
[nonmovant], but only where there is an actual controversy,
that is, when both parties have submitted evidence of
contradictory facts.” Boudreaux, 402 F.3d at
540 (citing Little, 37 F.3d at 1075 (emphasis
omitted)). Nonetheless, a reviewing court is not permitted to
“weigh the evidence or evaluate the credibility of
witnesses.” Boudreaux, 402 F.3d at 540
(quoting Morris, 144 F.3d at 380). Thus,
“[t]he appropriate inquiry [on summary judgment] 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.'” Septimus v. Univ. of Hous., 399
F.3d 601, 609 (5th Cir. 2005) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251 - 52 (1986)).