     Case: 16-60184      Document: 00513727199         Page: 1    Date Filed: 10/20/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 16-60184                                FILED
                                  Summary Calendar                       October 20, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
HANSAWORLD USA, INCORPORATED, a California corporation,

              Plaintiff - Appellant

v.

DAMON G. CARPENTER, an individual,

              Defendant - Appellee




               Appeal from the United States District Court for the
                         Southern District of Mississippi
                             USDC No. 2:15-CV-73


Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant HansaWorld USA, Inc. (“HansaWorld”) brought
claims of civil conspiracy and violations of Florida’s Civil Remedies for
Criminal Practice Act, FLA. STAT. § 772.101 (“Florida RICO”) against
Defendant-Appellee Damon Carpenter (“Carpenter”). Thereafter, HansaWorld
moved to amend its complaint, attempting to add civil Racketeer Influenced



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-60184
and Corrupt Organizations Act, 18 U.S.C. § 1964(c)–(d) (“Federal RICO”) and
malicious interference claims, which the district court denied as futile. After
discovery, the U.S. District Court for the Southern District of Mississippi
granted Carpenter’s motion for summary judgment, dismissing HansaWorld’s
claims. HansaWorld now appeals. We AFFIRM.
                             I.     BACKGROUND
      HansaWorld’s former employee, Kimberlee Davenport (“Davenport”), hired
Carpenter as her attorney after HansaWorld terminated her employment.
Thereafter, Carpenter represented Davenport for approximately two weeks “for
the purpose of negotiating with [HansaWorld] . . . to secure the most favorable
terms possible resulting from [her] departure from that employment.”
HansaWorld alleges that during the course of her relationship with Carpenter,
Davenport attempted to extort HansaWorld and unlawfully converted its
property.   After winning its case against Davenport, HansaWorld sought
judgment against Carpenter in connection with his representation of Davenport.
      HansaWorld initially brought the instant matter in a Florida state court
in February 2015. Carpenter then removed the case to the U.S. District Court
for the Southern District of Florida, which on Carpenter’s motion, transferred
the case to the court below in May 2015. In its original complaint, HansaWorld
brought Florida RICO and civil conspiracy claims, alleging that Carpenter
conspired with Davenport to extort payments from it by: (1) making false
employment discrimination and income tax withholding allegations, (2)
conspiring with Davenport to shut down HansaWorld’s phone lines, and (3)
advising Davenport to delay returning the company car. On October 1, 2015,
the district court denied HansaWorld leave to amend its complaint to include




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                                    No. 16-60184
charges of malicious interference with business relations and Federal RICO
claims, finding that it had not pleaded a prima facie case for either claim. 1
      On March 8, 2016, the district court granted Carpenter’s motion for
summary judgment, finding that HansaWorld could not establish an
enterprise or pattern of continuing racketeering activity and had failed to show
that Carpenter’s actions went beyond the scope of his representation or that
he had any personal stake in the outcome of Davenport’s dispute with
HansaWorld.
      HansaWorld filed this appeal.
                          II.   STANDARD OF REVIEW
      This court ordinarily reviews a district court’s denial of a motion for leave
to amend a complaint for an abuse of discretion. City of Clinton v. Pilgrim’s
Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010). If, however, the court below
denied the motion “based solely on futility, we apply a de novo standard of
review identical, in practice, to the standard used for reviewing a dismissal
under Rule 12(b)(6).” Id. (citing Wilson v. Bruks-Klockner, Inc., 602 F.3d 363,
368 (5th Cir. 2010)). Under a Rule 12(b)(6) analysis, a complaint must allege
enough facts that, if taken as true, “state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint
that contains no more than “a formulaic recitation of the elements” or presents
a “legal conclusion couched as a factual allegation” is insufficient. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
      Similarly, when reviewing a district court’s grant of summary judgment,
we review the district court’s ruling de novo. Robinson v. Orient Marine Co.,



      1  Although the district court denied HansaWorld leave to add these two new
allegations, pursuant to the same motion, the court did grant HansaWorld leave to amend
its complaint as it related to its Florida RICO allegations, including leave to add any
additional facts in support thereof.
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                                       No. 16-60184
505 F.3d 364, 365 (5th Cir. 2007) (citation omitted). Summary judgment is
warranted when 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(a);
Robinson, 505 F.3d at 366 (citation omitted). “Unsubstantiated assertions,
improbable inferences, and unsupported speculation are not sufficient to defeat
a motion for summary judgment.” Brown v. City of Houston, 337 F.3d 539, 541
(5th Cir. 2003) (citation omitted). “[R]easonable inferences are to be drawn in
favor of the non-moving party.” Robinson, 505 F.3d at 366 (citation omitted).
                                    III.   DISCUSSION
       HansaWorld raises two issues on appeal.                 First, it asserts that the
district court erred when it denied HansaWorld’s motion to amend its
complaint to include a malicious interference with business relations claim.
Second, HansaWorld alleges that the district court erred when it granted
summary judgment in favor of Carpenter on HansaWorld’s Florida civil
conspiracy claim. Both issues are discussed in turn. 2
                                              A.
       HansaWorld first argues that the district court erred when it denied
HansaWorld’s motion for leave to include a malicious interference with
business relations claim against Carpenter. We disagree.
           In Mississippi, 3 a prima facie case for malicious interference requires a
plaintiff to show that a person “engage[d] in some act with a malicious intent


       2 HansaWorld does not appeal the district court’s dismissal of its Federal or Florida
RICO claims.
       3 In the court below, Carpenter argued that Mississippi law, not Florida law, should

apply to this case. The district court found through a conflict of laws analysis that Florida
law controlled. The parties did not dispute, however, that Mississippi law applied to
HansaWorld’s malicious interference claims; thus, the district court applied Mississippi law
to that claim. Because this issue is not before the court, we apply, as the district court did,
Mississippi law to HansaWorld’s malicious interference claims and Florida law to
HansaWorld’s civil conspiracy claims. See Ferguson v. FDIC, 164 F.3d 894, 897 (5th Cir.
1999) (citing Kucel v. Walter E. Heller & Co., 813 F.2d 67, 74 (5th Cir. 1987)); Wellogix, Inc.
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                                    No. 16-60184
to interfere [with] and injure the business of another, and injury does in fact
result.” Par Indus. v. Target Container Co., 708 So.2d 44, 48 (Miss. 1998)
(emphasis added) (quoting Cenac v. Murry, 609 So.2d 1257, 1271 (Miss. 1992)).
       The district court found that HansaWorld failed to allege it suffered any
injury as a result of Carpenter’s actions. On appeal, HansaWorld argues that
in stating in its original complaint that “Davenport adversely impacted
[HansaWorld’s] ability to conduct business and its relationships with
customers and partners” suffices to meet the injury in fact requirement. Not
so. Even construed liberally, this allegation cannot overcome 12(b)(6)’s low bar,
as it is merely “a formulaic recitation of the elements of a cause of action.”
Richardson v. Axion Logistics, L.L.C., 780 F.3d 304, 306 (5th Cir. 2015) (quoting
Twombly, 550 U.S. at 555)).         Because HansaWorld failed to allege facts
establishing a prima facie case for this claim, the district court’s refusal to
grant HansaWorld leave to amend was proper. See Stripling v. Jordan Prod.
Co., 234 F.3d 863, 872–73 (5th Cir. 2000) (“It is within the district court’s
discretion to deny a motion to amend if it is futile.”). Accordingly, we find that
the district court did not err in denying HansaWorld’s motion to amend.
                                           B.
      We now turn to HansaWorld’s argument that the district court erred
when it granted Carpenter’s motion for summary judgment.
      Under Florida law, an attorney cannot be found to have conspired with
his client if his alleged bad conduct took place within the scope of his
representation and he does not have a personal stake in the matter, separate
and distinct from his client’s interest. Lipsig v. Ramlawi, 760 So.2d 170, 181
(Fla. Dist. Ct. App. 2000) (holding that because “all of [the defendant’s]



v. SAP Am., Inc., 58 F. Supp. 3d 766, 775 (S.D. Tex. 2014), aff’d, No. 15-20184, 2016 WL
2772280 (5th Cir. May 12, 2016).
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                                   No. 16-60184
activities were within the scope of his agency as the . . . family attorney” and
the defendant had no personal stake in the matter, he was entitled to a directed
verdict on the plaintiff’s civil conspiracy claim); see also Rivers v. Dillards Dep’t
Store, Inc., 698 So.2d 1328, 1333 (Fla. Dist. Ct. App. 1997) (“[A]bsent
allegations that an employee acted in a personal capacity apart from his
employee status, [a] corporation cannot conspire with its own . . . employees.”
(citation omitted)).
      Here, reviewing the facts in the light most favorable to HansaWorld,
Carpenter’s actions fell squarely within the confines of his employment
relationship with Davenport.          HansaWorld’s assertion that Carpenter
exceeded the scope of his employment by “conspiring with Davenport to commit
crimes” is speculative and unsupported by the record. Brown, 337 F.3d at 541.
Moreover, Carpenter did not have a personal stake in Davenport’s wrongdoing,
an issue HansaWorld fails to dispute on appeal. Finally, HansaWorld’s argument
that Carpenter’s relationship with Davenport created a “particular power of
coercion . . . [that] an individual acting alone does not possess” also fails because
the alleged bad acts that Davenport committed could have been done with or
without Carpenter’s assistance.       Accordingly, we conclude that because
HansaWorld has not shown that Carpenter exceeded the scope of his
representation or had a personal stake in Davenport’s dispute with
HansaWorld, the district court did not err in granting summary judgment in
favor of Carpenter.
                               IV.    CONCLUSION
      For the reasons stated above, we AFFIRM the district court’s rulings
in full.




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