     Case: 15-10921      Document: 00513609640         Page: 1    Date Filed: 07/26/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-10921                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            July 26, 2016
BRUCE COPELAND,                                                            Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

STATE FARM INSURANCE COMPANY; WELLINGTON INSURANCE
COMPANY; LIBERTY MUTUAL INSURANCE COMPANY,

              Defendants - Appellees


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:13-CV-2440


Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM: *
       The district court dismissed Bruce Copeland’s defamation and tortious
interference claims against the Liberty Mutual and Wellington Insurance
companies, and granted summary judgment in favor of State Farm Insurance
Company. We AFFIRM.
       This diversity lawsuit arises out of an alleged employment contract
between Bruce Copeland and a law firm owned by Alice Bonner of Houston,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10921
Texas. Copeland, proceeding pro se, pled that Bonner hired him through a
third party, “Mr. Cantrell,” in March 2011 to do paralegal work. After a
tornado hit Lancaster, Texas, in April 2012, Copeland thought the disaster was
a business opportunity. He claimed that he and Cantrell found office space in
Dallas and began to seek clients in need of legal assistance in filing claims with
insurance companies. Several months later, Copeland said he learned that
Bonner denied hiring him and told clients and insurers that Copeland had
stolen her identity. Copeland contended that several insurance companies,
which included Liberty Mutual, State Farm, and Wellington (collectively, “the
defendants”), opened investigations into Copeland’s contractual relationship
with Bonner and declined to pay invoices for services Copeland performed.
      In June 2013, Copeland filed this lawsuit against Bonner, the defendant
insurance companies, and others.            In his second amended complaint, 1
Copeland alleged the defendants slandered him and tortiously interfered with
his contract with Bonner. At the outset, Copeland obtained a default against
State Farm and Liberty Mutual, which the district court later set aside. The
claims against Liberty Mutual and Wellington were dismissed on a Rule
12(b)(6) motion. The district court then granted summary judgment for State
Farm and denied Copeland’s motion. 2 Copeland timely appealed.


                                    DISCUSSION
I.    Default
      Copeland first argues that the district court erred in setting aside the
clerk’s entry of default against Liberty Mutual and State Farm. We review for



      1  Copeland filed several amended complaints. The district court treated the second
amended complaint as the operative complaint in this lawsuit. We do the same. The factual
allegations in Copeland’s various complaints are mostly similar.
       2 Copeland’s claims against Bonner continue but are irrelevant to this appeal.

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an abuse of discretion. Effjohn Int’l Cruise Holdings, Inc. v. A&L Sales, Inc.,
346 F.3d 552, 559 (5th Cir. 2003). Findings of fact are subject to a clearly
erroneous standard.      Id.   Non-exclusive factors relevant to determining
whether default should be set aside include: “whether the failure to act was
willful,” “whether setting aside the default would prejudice the adversary,” and
“whether a meritorious claim has been presented.” Id. at 563. The ultimate
inquiry is whether a defendant can show “good cause” that default should be
set aside. Id.; FED. R. CIV. P. 55(c).
      Here, Copeland attempted to serve the defendants by certified mail.
Under Texas law, service may be effectuated on a corporation’s president, vice-
president, or registered agent by certified mail.    See FED. R. CIV. P. 4(e)(1),
(h)(1)(A) (providing that service on a corporation is proper if executed in a
manner that state law allows); TEX. R. CIV. P. 106(a); TEX. BUS. ORGS. CODE
§§ 5.201, 5.255. In setting aside the clerk’s entry of default, the district court
held that Liberty Mutual was not properly served because someone other than
the company’s agent signed the return receipt. Under Texas law, when “the
return receipt is not signed by the addressee, the service of process is
defective.” Southwestern Sec. Servs., Inc. v. Gamboa, 172 S.W.3d 90, 92 (Tex.
App.—El Paso 2005, no pet.). We agree.
      The district court also found there was a question as to whether service
on State Farm was proper because the summons was not addressed to an
agent. Regardless of the specific Texas procedure, the district court found that
State Farm’s failure to answer in a timely fashion was not “willful.” The
company’s general counsel contacted Copeland once he was aware of the
lawsuit to assist in making proper service on the company. The court also
noted that both companies acted “swiftly” once they learned of the default, that
setting aside default would not prejudice Copeland, and that both companies
had colorable defenses to Copeland’s claims.
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                                       No. 15-10921
       The district court’s findings as to willfulness are not clearly erroneous.
Based on these facts, the district court did not abuse its discretion in setting
aside the clerk’s entry of default against Liberty Mutual and State Farm.


II.    Claims Against Liberty Mutual and Wellington
       The district court dismissed Copeland’s defamation and tortious
interference claims against Liberty Mutual and Wellington 3 on Rule 12(b)(6)
grounds. We review such dismissals de novo. True v. Robles, 571 F.3d 412,
417 (5th Cir. 2009).
       To state a defamation claim under Texas law, a plaintiff must plead facts
showing that the defendant “(1) published a statement; (2) that was
defamatory concerning the plaintiff; (3) while acting with either actual malice,
if the plaintiff was a public official . . . , or negligence, if the plaintiff was a
private individual, regarding the truth of the statement.” WFAA-TV, Inc. v.
McLemore, 978 S.W.2d 568, 571 (Tex. 1998).                  Copeland’s only allegation
relevant to his defamation claim against Liberty Mutual and Wellington is that
they “called the clients and made under [their] notice of ‘investigation,’ directly
engaged in conversation about Plaintiff Copeland ‘stealing’ the identity of
Defendant Bonner.” 4 We understand him to allege that the companies and
their insureds discussed Bonner’s identity-theft accusation. This is not enough
for the court to draw the reasonable inference that Liberty Mutual and
Wellington are liable for defamation. At least one fatal defect is that there is



       3 In its brief, Wellington argues that the district court did not err in dismissing two
additional claims alleged in Copeland’s original complaint for intentional infliction of
emotional distress and loss of good will. The second amended complaint, the operative
complaint in this lawsuit, abandons those claims so we do not address them.
       4 Copeland also points to his allegation that the defendants were “contacting [clients]

inquiring about their contract and what do they know about the partners in the law firm.”
On its face, though, this is not a defamatory statement made by the defendants about
Copeland.
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no allegation that the alleged defamatory statement was made with negligence
regarding the truth of the statement, which is the third element of the claim.
See id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
       Copeland also asserted that Liberty Mutual and Wellington tortiously
interfered with his contract with Bonner. 5 An essential element of such a claim
under Texas law is that the defendant’s injury must be the proximate result of
the defendant’s interference with an existing contract. Prudential Ins. Co. of
Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). Copeland,
however, pled that the alleged interference by Liberty Mutual and Wellington
occurred months after Bonner denied the existence of any contractual
relationship with Copeland. Thus, the district court concluded that Liberty
Mutual’s and Wellington’s actions “could not have proximately caused any
injury to Copeland,” and we agree.
       On appeal, Copeland contends that Liberty Mutual and Wellington
provided “no evidence” to support their motion and the district court erred in
failing to consider documents attached to his original complaint.                     These
arguments fail. A Rule 12(b)(6) inquiry is restricted to “the contents of the
pleadings, including attachments thereto,” so Liberty Mutual and Wellington
were not required to submit evidence.               See Bosarge v. Miss. Bureau of
Narcotics, 796 F.3d 435, 440 (5th Cir. 2015). The attachments to Copeland’s
complaint, moreover, consist mostly of correspondence from Copeland to
Bonner and do not clarify Copeland’s claims. The district court did not err in
dismissing Copeland’s defamation and tortious interference claims against
Liberty Mutual and Wellington.


       5 As the district court concluded, to the extent that Copeland’s claim relates to the
contracts between the clients and Bonner’s law firm, Copeland does not have standing to
allege a tortious interference claim because he is not a party to those contracts and the
contracts were not made for his benefit. See Ensley v. Cody Res., Inc., 171 F.3d 315, 320 (5th
Cir. 1999).
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III.    Claims Against State Farm
        State Farm moved for summary judgment or, alternately, for judgment
on the pleadings on Copeland’s defamation and tortious interference claims.
Copeland filed his own motion for summary judgment but did not respond to
State Farm’s motion. The district court denied Copeland’s motion and granted
summary judgment in favor of State Farm. We review summary judgment de
novo. Baker v. Am. Airlines, Inc., 430 F.3d 750, 753 (5th Cir. 2005).
        Copeland first argues that the district court erred in denying his motion
and in failing to consider the documents attached to his complaint. Denial of
a motion for summary judgment is a nonfinal decision; it is not reviewable on
appeal.     Thus, we lack jurisdiction to consider this issue.    See Nerren v.
Livingston Police Dep’t, 86 F.3d 469, 471–72 (5th Cir. 1996).
        Copeland next asserts that State Farm’s motion for summary judgment
should not have been granted because it was unsupported by evidence. The
absence of supporting evidence is not fatal to a summary judgment motion if it
points out, validly, that the evidence in the record does not support a crucial
element of a claim for which the nonmoving party has the burden of proof. See
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). More relevant here than
summary judgment procedures, though, is that State Farm moved in the
alternative for judgment on the pleadings. The only argument in the motion
was that Copeland failed to state plausible claims. The district court’s analysis
also focused on the pleadings and not on evidence. Therefore, even though the
district court stated that it granted summary judgment, we conclude that the
better characterization is that the court granted State Farm’s alternative
motion under Rule 12(c). A judgment on the pleadings is reviewed de novo and
is subject to the same standard as dismissal for failure to state a claim. Doe v.




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                                       No. 15-10921
MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008). 6
       The allegations in Copeland’s complaint regarding the tortious
interference claims are the same for all defendants.                    We have already
concluded Copeland failed to plead that the defendants’ actions were a
proximate cause of his injury, an essential element of tortious interference
under Texas law. See Prudential Ins., 29 S.W.3d at 77. Judgment in favor of
State Farm on Copeland’s tortious interference claim was proper.
       The final claim against State Farm was for defamation.                      At most,
Copeland alleges that State Farm contacted a client and told him that
Copeland had committed identity theft. We earlier identified the elements of
a claim of defamation under Texas law. The district court correctly found that
Copeland’s complaint failed to state any non-conclusory allegation that State
Farm made “any remarks with negligence regarding their truth,” which is a
necessary allegation for a claim of defamation. See WFAA-TV, 978 S.W.2d at
571. Because Copeland failed to allege this element of defamation, it was
proper to enter judgment on the pleadings for State Farm on the claim.


IV.    Costs
       Finally, Copeland argues that the district court erred in assessing costs
against him. Rule 54(d)(1), however, allows a district court to award costs
“other than attorney’s fees . . . to the prevailing party” unless a federal statute,
the civil rules, or a court order provides otherwise. FED. R. CIV. P. 54(d)(1). No
such prohibition is at issue here.
       AFFIRMED.




       6Copeland also contends that the district court erred in setting a briefing schedule for
summary judgment motions before allowing discovery. We do not address this issue, though,
as under Rule 12(c), we look only to the pleadings. See FED. R. CIV. P. 12(c).
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