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

                                                                            FILED
                                                                           July 15, 2008

                                       No. 07-30845                   Charles R. Fulbruge III
                                                                              Clerk

BRYANT HODGES; PEGGY COOPER

                                                  Plaintiffs – Appellants
v.

MOSAIC FERTILIZER LLC, formerly known as IMC-Agrico Company,
formerly known as Mosaic Phosphates Company

                                                  Defendant – Appellee



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:05-CV-5201


Before JONES, Chief Judge, and WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Bryant Hodges and Peggy Cooper (“Appellants”) challenge the district
court’s dismissal on summary judgment of their state law spoliation of evidence
claim against Mosaic Fertilizer LLC (“Mosaic”). Because the court’s judgment
is supported by the record, we AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                    No. 07-30845

                               BACKGROUND
      On August 8, 2005, Appellants, who were employees of Brand Scaffold
Builders, Inc. (“Brand Scaffolding”), were injured while working for Mosaic at its
fertilizer plant in St. James Parish, Louisiana. They were erecting scaffolding
near sulfuric acid feed pumps when the lanyard connected to Hodges’s safety
harness got caught on the lever of a ball valve and pulled the valve open. The
ball valve had been placed in the closed position to isolate a broken pressure
gauge that had been leaking sulfuric acid. When the lanyard pulled the valve
open, sulfuric acid began spraying in the area of the pumps and the scaffolding.
The acid sprayed on Appellants and burned them.
      After this accident occurred, the ball valve that opened was removed and
replaced with a new valve. Mosaic has been unable to produce the valve that
was removed. During a deposition, Mosaic’s maintenance manager, Jeffrey
Roussel, testified that he did not know what happened to the valve after it was
removed, but that Mosaic normally discards such valves after they are removed.
He stated that, at the time the valve was removed, he did not recognize a need
to keep it. Roussel also testified that he was not aware that anyone at Mosaic
did anything to retain the valve.
      Appellants received worker’s compensation benefits, including wages and
medical expenses, from their employer, Brand Scaffolding. On September 26,
2005, Appellants also filed a tort suit for damages against Mosaic in Louisiana
state court. Mosaic removed the case to federal district court. In federal court,
Appellants supplemented their complaint by adding state law claims of
intentional tort and spoliation of evidence. On May 17, 2007, Mosaic filed a
motion for summary judgment, which the court granted.
      In its order granting summary judgment, the district court concluded that
Mosaic was Appellants’ statutory employer under the Louisiana Workers
Compensation Act (“LWCA”), LA. REV. STAT. ANN. § 23:1021, et. seq., and,


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therefore, immune from tort liability for their injuries. The court recognized
that the LWCA does not shield an employer from tort liability for intentionally
injuring an employee, but it concluded that Appellants failed to show, using
proper summary judgment evidence, that a genuine issue of material fact existed
as to whether Mosaic committed an intentional tort. The court also dismissed
Appellants’ spoliation of evidence claim, noting in a footnote that “[b]ecause
summary judgment has been granted in favor of Mosaic, the plaintiffs have no
tort cause of action against Mosaic. Therefore, the plaintiffs’ last claim for
damages based on Mosaic’s alleged spoiliation [sic] of evidence is dismissed as
moot.”
      On July 13, 2007, Appellants filed a motion for reconsideration, which the
district court correctly treated as a motion to alter or amend judgment under
Federal Rule of Civil Procedure 59(e). In their motion, Appellants did not
contest the district court’s dismissal of their negligence and intentional tort
claims. Instead, Appellants argued that their spoliation of evidence claim should
not have been dismissed because it was an independent cause of action. The
court denied the motion, concluding that Appellants were merely attempting to
re-litigate Mosaic’s motion for summary judgment. But the court did clarify its
order granting summary judgment by stating that it recognized that a claim of
spoliation of evidence “may stand alone at times as an independent cause of
action in tort for economic damages; however, the facts of this case do not
support such a claim.”
      In their brief on appeal, Appellants argue only one issue: whether the
district court erred by dismissing on summary judgment their state law tort
claim for the intentional spoliation of evidence.
                          STANDARD OF REVIEW
      This court reviews a district court’s order granting summary judgment
de novo, viewing all evidence in the light most favorable to the non-moving party


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and drawing all reasonable inferences in that party’s favor. Pierce v. Dep’t of
U.S. Air Force, 512 F.3d 184, 186 (5th Cir. 2007). Summary judgment is
appropriate when the evidence reflects no genuine issues of material fact and the
non-moving party is entitled to judgment as a matter of law. Id. The moving
party has the initial responsibility of identifying the pleadings and evidence
which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986). If the
moving party meets this burden, the non-moving party must “identify specific
evidence in the record, and . . . articulate the ‘precise manner’ in which that
evidence support[s] [its] claim[s].” Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.
1994).
      The non-moving party cannot satisfy its summary judgment burden with
“some metaphysical doubt as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of evidence.” Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (internal quotation marks
and citations omitted). If no reasonable juror could find for the non-moving
party, summary judgment will be granted.         Miss. River Basin Alliance v.
Westphal, 230 F.3d 170, 174 (5th Cir. 2000).
                                 DISCUSSION
      Appellants ask this court to recognize an independent tort for the
intentional destruction of evidence for the purpose of depriving an opposing
party of its use. Because our jurisdiction in this case is based on diversity of
citizenship, we apply Louisiana law. See Erie R. Co. v. Tompkins, 304 U.S. 64,
58 S. Ct. 817 (1938). In their brief on appeal, Appellants cite a single case from
an intermediate state appellate court to support their argument. See Pham v.
Contico Int’l, Inc., 759 So. 2d 880, 882 (La. Ct. App. 2000). The Louisiana
Supreme Court has yet to address whether: (1) Louisiana law recognizes an
independent tort for the intentional spoliation of evidence, or (2) whether the

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LWCA would preclude an employee from bringing such a tort claim against his
employer.
      If the Louisiana Supreme Court has not ruled on an issue, then this court
makes an “Erie guess” to “determine as best it can” what that court would
decide. Howe ex rel. Howe v. Scottsdale Ins. Co., 204 F.3d 624, 627 (5th Cir.
2000) (citations omitted). But we need not make an Erie guess here, because
even if the Louisiana Supreme Court decided that an employee may bring an
independent tort claim against his employer for the intentional spoliation of
evidence, Appellants’ claim would not survive summary judgment.
      On review of pertinent portions of the record, we conclude that Appellants
have failed to carry their burden of presenting evidence that shows the existence
of a genuine issue of material fact as to spoliation of evidence. Appellants argue
that Mosaic intentionally destroyed the valve at issue for the purpose of
depriving them of its use. But Appellants cite no evidence, other than their mere
allegation, that tends to show that Mosaic intentionally destroyed the valve for
that reason. Therefore, the district court correctly dismissed on summary
judgment Appellants’ spoliation of evidence claim. See Burge v. St. Tammany
Parish, 336 F.3d 363, 373-74 (5th Cir. 2003) (Louisiana plaintiff presented no
evidence that defendant intentionally destroyed evidence for the purpose of
depriving plaintiff of its use).
                                   CONCLUSION
      For the reasons stated, we AFFIRM the district court’s judgment.




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