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

                                                                            FILED
                                                                         January 23, 2009

                                     No. 08-30333                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


BANK OF LOUISIANA

                                                  Plaintiff-Appellant
v.

SUNGARD AVAILABILITY SERVICES, LP

                                                  Defendant-Appellee



               Appeal from the United States District Court for the
                          Eastern District of Louisiana
                           USDC No. 2:07-CV-01228


Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
PER CURIAM:*
       The Bank of Louisiana appeals the grant of summary judgment for
SunGard on the Bank’s breach of contract claim and SunGard’s counter-claim
for unpaid invoices. Because the district court’s decision displays no reversible
error of law or fact, we affirm. The district court’s opinion adequately presents
its reasoning and the relevant facts, and we write here merely to amplify three
points.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-30333

      First, the Bank of Louisiana insists that SunGard told Peggy Schaefer that
she would have to ship either the missing back-up tapes or the bank’s
prohibitively heavy computer to SunGard’s facilities in Smyrna, Georgia, and
that SunGard would not provide any other assistance.           If true, such an
ultimatum might be evidence that SunGard breached its contract with the Bank
to provide any of four different types of “Mobile Recovery Services.” However,
the Bank does not cite any evidence that a SunGard employee made this
statement and failed to provide an affidavit claiming that this evidence exists.
Instead, the Bank merely reiterates that this statement was made.
      Second, the Bank argues that SunGard was contractually obliged to be
“proactive” and that SunGard’s failure to suggest other recovery methods
constituted breach of contract. Again, as the district court noted, the Bank does
not point to evidence that it asked SunGard for Mobile Recovery Services
covered by the contract, but not contemplated by the bank’s disaster recovery
plan, nor did the Bank submit an affidavit claiming that this evidence exists.
      These two assertions are not evidence, and the Bank’s claims, without
more, are insufficient to show genuine issues of material fact. See Douglass v.
United States Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996). Because the Bank
fails to cite evidence that SunGard issued the alleged ultimatum or refused to
provide contractually required services, SunGard is entitled to a judgment as a
matter of law that it did not breach the contract.
      Finally, because SunGard is not liable for breach, the Bank did not have
cause to terminate the contract. The Bank argues that the contract fails for lack
of “consideration” because the Bank altered its operations, making SunGard’s
services unnecessary.    This argument mischaracterizes as consideration a
party’s benefit received under a contract for services performed. It is basic
contract law—including in Pennsylvania, this contract’s choice of law—that
consideration is a bargained for performance or return promise required at the

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                                No. 08-30333

time of contract formation. U.S. Steel Corp. v. Unemployment Compensation Bd.
of Review, 858 A.2d 91, 105-06 & n.5 (Pa. 2004) (citing Restatement 2d of
Contracts § 71 (1981)). The contract between the Bank and SunGard is a valid
one, and the Bank does not argue otherwise.       The Bank’s “consideration”
argument as a justification for non-performance is therefore misplaced.
      Instead, the Bank is really claiming that it was justified in withholding
payment because the contract was no longer in its interest. Obviously, this is
not a legal excuse for non-performance of contractual obligations.         See
Restatement 2d of Contracts §§ 261-72 (1981) (describing established excuses of
performance). The Bank’s failure to pay SunGard is therefore a breach of the
contract for which the Bank was correctly required to pay damages.
      AFFIRMED.




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