from the United States District Court for the Eastern
District of Louisiana
KING, ELROD, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge.
petition for rehearing is DENIED. The following is
substituted in place of the prior opinion.
Brand Services, L.L.C. ("Brand Services")
challenges the district court's grant of summary judgment
in favor of Appellee Irex Corporation ("Irex") on
Brand Services's Louisiana Uniform Trade Secrets Act
("LUTSA") claim and its civilian law conversion
claim. Brand Services argues the district court erred by
concluding that (1) Brand Services failed to produce
sufficient evidence of damages and (2) LUTSA preempted its
conversion claim. Brand Services also argues the district
court improperly ruled on its claims without first
considering Brand Services's pending discovery motion.
For the reasons set forth below, we AFFIRM the district
court's grant of summary judgment as to the civilian law
conversion claim based upon trade secrets and REVERSE the
remainder of the district court's judgment, remanding for
further consideration in light of this opinion.
Factual and Procedural Background
Services, an industrial scaffolding company, claims that its
former employee, James Stanich, stole trade secrets and
confidential and proprietary information when he went to work
for Irex, a competitor. Specifically, Stanich allegedly
transferred from his work computer files containing
information about software that Brand Services uses to, inter
alia, invoice customers and track job productivity. Stanich
then purportedly used this information to help Irex develop
similar software. Brand Services filed suit based on this
alleged misappropriation, asserting claims under LUTSA and
for conversion under Louisiana civilian law.
Brand Services filed suit, the district court set the
discovery deadline for February 17, 2017. Brand Services
claims Irex filed improper blanket objections to Brand
Services's first request for production, and thereafter
repeatedly promised to produce responsive documents but had
not done so by the discovery deadline. Brand Services moved
to compel production of responsive documents on March 20,
2017. The magistrate judge denied the motion as untimely, but
reminded Irex of its duty to supplement under Federal Rule of
Civil Procedure 26(e). Irex never supplemented its responses.
district court then granted summary judgment for Irex on
Brand Services's LUTSA claim. The district court
concluded that Brand Services failed to proffer evidence
sufficient to create a fact issue on the amount of
unjust-enrichment damages Irex obtained from allegedly using
Brand Services's trade secrets. Brand Services moved for
reconsideration of the ruling, and Irex moved for summary
judgment on Brand Services's conversion claim.
Irex's second motion for summary judgment and Brand
Services's motion for reconsideration were pending, Brand
Services discovered responsive documents produced in related
proceedings in Pennsylvania. Although Brand Services moved to
compel production of these documents in the Louisiana case,
because the documents in the Pennsylvania case were provided
under a protective order, Brand Services was unable to get
representative documents in time to satisfy the magistrate
judge in the Louisiana case, and the motion was denied. When
Brand Services finally obtained the exemplar documents, it
filed a motion for reconsideration. That motion remains
unaddressed in the district court.
Brand Services filed its motion for reconsideration of the
discovery ruling, but before the magistrate judge ruled on
that motion, the district court granted summary judgment on
Brand Services's conversion claim, holding LUTSA
preempted that claim. The district court also denied Brand
Services's motion for reconsideration of the LUTSA
ruling, reiterating that Brand Services failed to submit
specific evidence to establish its damages. In doing so, the
district court did not discuss Brand Services's pending
discovery motion. Brand Services timely appealed.
the parties do not contest jurisdiction on appeal, we must
consider our jurisdiction sua sponte. See Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 583 (1999); Simon v.
Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir.
1999). Brand Services filed suit based on diversity
jurisdiction under 28 U.S.C. § 1332. Thus, we have
jurisdiction over the district court's final decision
only if diversity jurisdiction was proper below. See
28 U.S.C. § 1291. Here, two issues exist: (1) whether
the parties meet the diversity requirement in light of Brand
Services's status as a limited liability
company and (2) whether the $75, 000
amount-in-controversy requirement is met. See 28
U.S.C. § 1332(a). After we requested supplemental
briefing on the former, Brand Services submitted undisputed
evidence that its members are citizens of Delaware and
Georgia. Accordingly, we accept this filing as establishing
diversity. See 28 U.S.C. § 1653; Carlton v.
Baww, Inc., 751 F.2d 781, 789 (5th Cir. 1985); see
also Burdett v. Remington Arms Co., L.L.C., 854 F.3d
733, 734 n. 1 (5th Cir. 2017).
as the amount in controversy, the face of the complaint
alleges facts showing it is more likely than not that more
than $75, 000 is at stake.When a complaint alleges an unspecified
amount of damages, the party invoking diversity jurisdiction
must show by a preponderance of the evidence that the
amount-in-controversy requirement is met. See St. Paul
Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th
Cir. 1998). We ask whether "it is facially apparent
[from the complaint] that the claims exceed the
jurisdictional amount," and if it is not, the ...