     Case: 18-31032      Document: 00515022021         Page: 1    Date Filed: 07/03/2019




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

                                      No. 18-31032                              FILED
                                                                             July 3, 2019
                                                                           Lyle W. Cayce
WILLIAM BOATENG,                                                                Clerk

              Plaintiff–Appellant,

v.

BP, P.L.C.; BP EXPLORATION & PRODUCTION, INCORPORATED; BP
AMERICA, INCORPORATED; BP PRODUCTS NORTH AMERICA,
INCORPORATED; BP INTERNATIONAL LIMITED,

              Defendants–Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CV-1383


Before DAVIS, HIGGINSON, and WILLETT, Circuit Judges.
PER CURIAM:*
       William Boateng appeals the dismissal of his unjust enrichment claim
against BP. While the district court seemingly dismissed Boateng’s case under
Rule 12(b)(6), it implicitly converted the dismissal into a grant of summary
judgment by considering matters outside the pleadings. Because no reasonable
juror could find for Boateng, summary judgment was appropriate. Thus, we
AFFIRM the district court’s grant of summary judgment.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-31032
      Boateng also asks for leave to amend his complaint, arguing that the
district court failed to balance the proper factors. However, even assuming the
district court erred, it was harmless since Boateng’s claim is without merit.
Therefore, we DENY his request.
                                       I
      During the Deepwater Horizon oil spill back in 2010, BP asked the public
to submit potential solutions to fix the oil leak. Boateng alleges that he
provided BP with “a detailed proposal of plans to cap the well and shut down
the leak” and that BP then used “substantially the same” methods “to cap the
well and shutoff [sic] the leak of oil.” BP then refused to compensate Boateng.
As a result, Boateng alleges he “has suffered damages including, but not
limited to, loss of income.”
      Boateng filed a complaint against BP alleging breach of contract and, in
the alternative, “misappropriation of plaintiff’s idea”—a remedy not found in
Louisiana law. BP filed a motion to dismiss under Rule 12(b)(6). In Boateng’s
opposition to BP’s motion, he included a new cause of action for unjust
enrichment plus five exhibits of evidence.
      The district court considered his original causes of action for breach of
contract and misappropriation as well as his new claim for unjust enrichment
and dismissed them all under Rule 12(b)(6). Boateng timely appealed.
                                      II
                                      A
      The district court had diversity jurisdiction under 28 U.S.C. § 1332. And
we have jurisdiction under 28 U.S.C. § 1291.
                                      B
      Although the district court seemed to dismiss Boateng’s claims under
Rule 12(b)(6), the district court implicitly granted a summary judgment motion
by considering matters beyond the pleadings. FED. R. CIV. P. 12(d). We review
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a district court’s grant of summary judgment de novo. Hyatt v. Thomas, 843
F.3d 172, 176 (5th Cir. 2016).
                                        III
                                        A
      A district court converts a Rule 12(b)(6) motion to dismiss into a motion
for summary judgement when “matters outside of the pleadings are presented
to and not excluded by the court.” FED. R. CIV. P. 12(d). Such matters include
evidence introduced in opposition to a 12(b)(6) motion that “provides some
substantiation for and does not merely reiterate what is said in the pleadings.”
Gen. Retail Servs., Inc. v. Wireless Toyz Franchise, LLC, 255 F. App’x.775, 785
(5th Cir. 2007); see also Inclusive Cmtys.’ Project Inc. v. Lincoln Prop. Co., 920
F.3d 890, 900 (5th Cir. 2019) (holding that when evaluating a 12(b)(6) motion
a court is limited to the “facts set forth in the complaint, documents attached
to the complaint” and documents attached by the defendant to its motion to
dismiss that are referenced in the plaintiff’s complaint).
      Even if the district court “did not explicitly inform the parties that it was
converting the motion to dismiss into a summary judgment,” an appellate court
will infer an implicit conversion if the district court looks beyond the pleadings.
Trinity Marine Prods., Inc. v. United States, 812 F.3d 481, 487 (5th Cir. 2016).
However, the district court must give the parties, especially the non-movant,
ample notice that it may consider “extra-pleading material” that would convert
the motion to a summary judgment. Id.
      Boateng submitted new factual evidence in opposition to BP’s motion to
dismiss that did not merely reiterate what he said in his pleadings but
provided the court with new substantiation for his claims. In fact, Boateng
even asserted an entirely new legal theory that was not in his complaint:




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unjust enrichment. 1 Since the district court looked beyond the pleadings by
considering new factual evidence, the district court implicitly converted the
motion to one for summary judgment. And we conclude that Boateng had
ample notice that the district court would potentially do so because he was the
party urging the court to review matters beyond the pleadings. See Darlak v.
Bobear, 814 F.2d 1055, 1065 (5th Cir. 1987) (finding that a party who
references matters outside the pleadings is “on notice that the district court
could properly treat . . . [the] motion to dismiss as one for summary judgment”).
Thus, we will review the district court’s decision de novo, under the summary
judgment standard.
                                               B
       A court should grant summary judgment “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a). “A dispute is genuine if the
summary judgment ‘evidence is such that a reasonable jury could return a
verdict for the [non-movant].’ ” Hyatt, 843 F.3d at 177 (quoting Anderson v.
Liberty Lobby Inc., 477 U.S. 242, 248 (1986)). Such a dispute does not exist
where the non-movant’s “critical evidence is so weak or tenuous on an essential
fact” needed to prove his claim “that it could not support a judgment in favor
of the nonmovant.” Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994).
Thus, at the summary judgment stage of an unjust enrichment claim, a
defendant must show that the factual evidence cannot reasonably demonstrate
at least one required element.
       Under Louisiana law, unjust enrichment has the following elements:


       1 When a plaintiff raises a new claim in opposition to a summary judgment motion,
the district court may consider the new claim for relief even if the claim is not asserted in the
pleading. See Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 989 n.2 (5th Cir. 2008)
(finding no error in the district court’s decision to consider a new claim included in a response
to a motion for summary judgment).
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      (1) there must be enrichment, (2) there must be an
      impoverishment, (3) there must be a connection between the
      enrichment and resulting impoverishment, (4) there must be an
      absence of “justification” or “cause” for the enrichment and
      impoverishment, (5) there must be no other remedy at law
      available to plaintiff.

Baker v. Maclay Prop’s Co., 648 So.2d 888, 897 (La. 1995).
      Boateng’s critical evidence cannot reasonably support an unjust
enrichment claim because the evidence fails to support a finding that BP was
enriched. Boateng’s critical evidence is a three-page PowerPoint that he sent
to BP. It contains crudely annotated Clipart-esque pictures and extremely brief
descriptions of his plan to cap the oil spill. His plan for stopping the leak “called
for the removal of the bolts so the cap-head could be removed and replaced with
a valve. That valve then could be either shut off to stop the leak or connected
to a new pipe to pump the oil to the surface.” Boateng v. BPI, No. 11-1383, slip
op. at *3 (E.D. La. Aug. 15, 2018). Yet, Boateng also submitted BP’s technical
briefing discussing the actual capping process. The process described by BP is
far more complex, nuanced, and specific, and only has—at most—surface-level
similarities to Boateng’s plan. It would be unreasonable for a juror to believe
that Boateng’s superficial input conferred any benefit to BP, whose highly-
skilled engineers were struggling to cap a complex oil spill thousands of feet
underwater. We conclude that Boateng’s critical evidence in this case cannot
support an unjust enrichment claim and summary judgment in favor of BP is
appropriate.
                                         IV
      Finally, Boateng requests that we remand his case with instructions to
grant him leave to amend his complaint so that he can cure any deficiencies,
arguing that the district court failed to balance the proper factors when it
denied him leave. We “review[] a district court’s denial of leave to amend a

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complaint for abuse of discretion.” Engstrom v. First Nat’l Bank of Eagle Lake,
47 F.3d 1459, 1464 (5th Cir. 1995) (citing Avatar Expl. Inc. v. Chevron, U.S.A.,
Inc., 933 F.2d 314, 320 (5th Cir. 1991)). Generally, leave to amend should be
“freely give[n] . . . when justice so requires.” FED. R. CIV. P. 15(a)(2).
       First, it isn’t clear that the district court ever denied a request for leave
to amend. Boateng never made a formal or separate request for leave to amend,
choosing instead to raise a new claim in response to BP’s dismissal motion. In
Sherman v. Hallbauer, we noted that “a new allegation raised in a
memorandum in opposition to a motion for summary judgment should have
been construed as an amendment to the original complaint.” 455 F.2d 1236,
1242 (5th Cir. 1972). If anything, the district court implicitly granted Boateng’s
request for leave to amend by considering his unjust enrichment claim.
       Regardless, if there was any error, it was harmless, since Boateng’s claim
lacks merit. See FED. R. CIV. P. 61; see also Debowale v. U.S. Inc., 62 F.3d 395,
395 (5th Cir. 1995) (unpublished) (finding that while “[t]he district court
should have construed Debowale’s Bivens claim, raised for the first time in his
response to the summary judgment motion, as a motion to amend [his]
complaint under FED. R. CIV. P. 15(a) and granted it,” any “error [was]
harmless” since “Debowale’s Fourth Amendment claim [was] without merit”)
(citing FED. R. CIV. P. 61). Therefore, we DENY Boateng’s request.

                                   CONCLUSION
        Although BP initially moved for dismissal under 12(b)(6), the district
court implicitly converted BP’s dismissal motion into one seeking summary
judgment by granting Boateng’s request to consider matters outside the
pleadings. Summary judgment in favor of BP is appropriate here because
Boateng’s evidence cannot support his claim that he conferred a benefit upon
BP.


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     Additionally, because Boateng’s claim is meritless, any error in denying
him leave to amend was harmless. Accordingly, we AFFIRM the district court’s
grant of summary judgment and DENY Boateng’s motion for leave to amend.




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