     Case: 15-50369      Document: 00513317972         Page: 1    Date Filed: 12/22/2015




                      REVISED DECEMBER 22, 2015

            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 15-50369                                   FILED
                                  Summary Calendar                          December 21, 2015
                                                                              Lyle W. Cayce
                                                                                   Clerk
EMILY MARY HU,

                Plaintiff - Appellant

v.

MAKOTO HANEDA; MASAE HANEDA; TOKUSANDOTCOM,

                Defendants - Appellees



                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:13-CV-798


Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM:*
           This appeal concerns alleged contracts for the sale of handbags and
accessories between plaintiff-appellant Mary Hu and the Japanese defendant-
appellees. Hu’s complaint alleges that the defendants breached these contracts
by failing to pay for goods that she shipped to them. In support of these



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 15-50369
allegations, Hu attached two documents to her complaint: (1) a table that she
prepared containing the defendants’ payment history and a calculation of late
fees, and (2) an unauthenticated e-mail from defendant Makoto Haneda
acknowledging an “unpaid debt.” Haneda filed a pro se motion to dismiss Hu’s
complaint, alleging that the parties settled these claims, and he attached the
purported settlement agreement in support of his motion.
      After considering the submissions, the magistrate judge recommended
that if the district court treats Haneda’s motion as a motion for judgment on
the pleadings, Hu’s complaint should be dismissed because: (1) it did not
include a particularized statement of facts to support her contention that she
entered into a contract with all three defendants, and (2) it did not allege that
any contractual terms were reduced to writing, nor did Hu attach any writing,
which is required by Texas’ statute of frauds for contracts for the sale of goods
over $500.   Alternatively, the magistrate judge recommended that if the
district court considers evidence outside the pleadings and treats the
defendant’s motion as a motion for summary judgment, the motion should be
granted because Hu had not produced any evidence of a contract that was
reduced to writing.     After the magistrate judge issued her report and
recommendations to the district court, but before the district court ruled, Hu
moved to amend her complaint in response to the magistrate judge’s report.
She attached the amended complaint and an “affidavit” with fourteen exhibits
(largely e-mail correspondence between Hu and the defendants) to her motion.
The district court later adopted the magistrate judge’s report, granted the
defendant’s motion to dismiss, and denied all other pending motions as moot.
Hu appealed.
      On appeal, Hu contends that: (1) the district court erred in granting
Haneda’s motion to dismiss because Haneda admitted the existence of a
contract in the pleadings thus taking the contract outside of the statute of
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                                        No. 15-50369
frauds under Texas law, and (2) that the district court abused its discretion in
not permitting her to amend her complaint because an amendment would not
cause undue delay. 1
       After a careful review of the briefing and the record, we find no reversible
error of law or fact. We agree with the district court and magistrate judge that
Haneda’s admission in an e-mail that he owed Hu an “unpaid debt” does not
constitute an admission of the existence of a contract, sufficient to fall within
an exception to the writing requirement of Texas’ statute of frauds. See TEX.
BUS. & COM. CODE § 2.201(c)(2) (Vernon 2009) (noting that a contract not
meeting the requirements of the statute of frauds is enforceable against a party
who admits “in his pleading, testimony or otherwise in court that a contract for
sale was made” (emphasis added)). Additionally, the district court did not
abuse its discretion in denying Hu’s motion to amend her complaint because,
even accepting the amended complaint and attached exhibits as true, they are
still insufficient to demonstrate the existence and minimum required terms of
a written contract. Id. § 2.201(a) (“a contract for the sale of goods for the price
of $500 or more is not enforceable by way of action or defense unless there is
some writing sufficient to indicate that a contract for sale has been made
between the parties and signed by the party against whom enforcement is
sought”); see, e.g, Westlake Petrochemicals, L.L.C. v United Polychem, Inc.,
688 F.3d 232, 241 (5th Cir. 2012) (holding that the contract at issue satisfied




       1 Hu also contends that the district court erred by purportedly granting Haneda’s
motion for summary judgment. Though the magistrate judge’s report recommended, in the
alternative, that if the district court were to consider evidence outside the pleadings it should
treat Haneda’s motion to dismiss as a motion for summary judgment and grant it, a close
review of the district court’s order indicates that the court treated Haneda’s motion as a
motion to dismiss for failure to state a claim, not a motion for summary judgment.
Accordingly, we do not consider this argument on appeal.
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                                No. 15-50369
the statute of frauds because it identified the quantity term, price, product,
and delivery terms). Accordingly, we AFFIRM the district court’s order.




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