Le v. Exeter Finance Corp et al

Filing 92

MEMORANDUM OPINION AND ORDER: The court determines that no genuine dispute of material fact exists as to any of the elements of Plaintiff's claims on which Defendants moved for summary judgment, except for his quantum meruit claim. The court, th erefore, denies Defendants' 27 Motion for Summary Judgment with respect to Plaintiff's quantum meruit claim, grants the motion in all other respects, and dismisses with prejudice all claims asserted by Plaintiff in this action, except for his quantum meruit claim. The court also grants Defendants' 28 Motion to Exclude Certain Opinions of Plaintiff's Expert; overrules as moot, except to the extent specifically addressed and ruled upon in this opinion, Plaintiff's 31 Objection to Defendants' Summary Judgment Evidence and Motion to Strike; denies Plaintiff's 35 Motion for Continuance; overrules as moot, except to the extent specifically addressed and ruled upon in this opinion, Defendants 39 Objecti ons to Plaintiff's Summary Judgment Evidence; grants in part and denies in part Plaintiff's 57 Motion for Clarification on Discovery Deadline, or in the Alternative, Motion for Extension of the Same; denies as moot Plaintiff's 63 M otion to De-Designate "Highly Confidential" Documents in Defendants' Productions; denies as moot Plaintiff's Second 83 Motion to Compel; and denies as moot Plaintiff's 86 Motion to Set Trial Date and Enter Scheduling Orde r. Accordingly, any response by Plaintiff to this order and sua sponte motion by the court shall be filed by 4/14/2019, and any reply by Defendants shall be filed by 4/28/2019. (Ordered by Judge Sam A Lindsay on 3/31/2019) (chmb) Modified to correct filing date on 4/1/2019 (cea).

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
BINH HOA LE,
Plaintiff,
v.
EXETER FINANCE CORP. and
ENZO PARENT, LLC,
Defendants.

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Civil Action No. 3:15-CV-3839-L

MEMORANDUM OPINION AND ORDER
Before the court are Defendants’ Motion for Summary Judgment (Doc. 27), filed December
16, 2016; Defendants’ Motion to Exclude Certain Opinions of Plaintiff’s Expert (Doc. 28), filed
December 16, 2016; Plaintiff’s Objection to Defendants’ Summary Judgment Evidence and Motion
to Strike (Doc. 31), filed January 6, 2017; Plaintiff’s Motion for Continuance (Doc. 35), filed
January 6, 2017; Defendants’ Objections to Plaintiff’s Summary Judgment Evidence (Doc. 39), filed
January 20, 2017; Plaintiff’s Motion for Clarification on Discovery Deadline, or in the Alternative,
Motion for Extension of the Same (Doc. 57), filed March 13, 2017; Plaintiff’s Motion to DeDesignate “Highly Confidential” Documents in Defendants’ Productions (Doc. 63), filed August 2,
2017; Plaintiff’s Second Motion to Compel (Doc. 83), filed April 13, 2018; and Plaintiff’s Motion
to Set Trial Date and Enter Scheduling Order (Doc. 86), filed April 17, 2018.1
After considering the motions, responses, replies, briefs, admissible summary judgment
evidence, and applicable legal standard, the court denies Defendants’ Motion for Summary

1

Plaintiff’s attorney incorrectly designated this motion as a “Brief/Memorandum in Support filed by Binh Hoa
Le re 51 Order” when it was filed electronically. It, therefore, appears on the docket sheet as a brief rather than a motion,
and it was not apparent to the court until reviewing the document that it was actually a motion. See Doc. 86.

Memorandum Opinion and Order – Page 1

Judgment (Doc. 27) with respect to Plaintiff’s quantum meruit claim, grants the motion in all other
respects, and dismisses with prejudice all claims asserted by Plaintiff in this action, except for his
quantum meruit claim; grants Defendants’ Motion to Exclude Certain Opinions of Plaintiff’s Expert
(Doc. 28); overrules as moot, except to the extent specifically addressed and ruled upon in this
opinion, Plaintiff’s Objection to Defendants’ Summary Judgment Evidence and Motion to Strike
(Doc. 31); denies Plaintiff’s Motion for Continuance (Doc. 35); overrules as moot, except to the
extent specifically addressed and ruled upon in this opinion, Defendants’ Objections to Plaintiff’s
Summary Judgment Evidence (Doc. 39); grants in part and denies in part Plaintiff’s Motion for
Clarification on Discovery Deadline, or in the Alternative, Motion for Extension of the Same (Doc.
57); denies as moot Plaintiff’s Motion to De-Designate “Highly Confidential” Documents in
Defendants’ Productions (Doc. 63); denies as moot Plaintiff’s Second Motion to Compel (Doc. 83);
and denies as moot Plaintiff’s Motion to Set Trial Date and Enter Scheduling Order (Doc. 86).
The court also strikes all amended or supplemental submissions (Docs. 64, 64-1, 68-1, 78,
82, 82-1, 32, 77) that were filed by Plaintiff without leave of court in violation of the court’s
scheduling order, this district’s Local Civil Rules, or both. Additionally, the court strikes the
parties’ submissions, arguments, or evidence (Docs. 72, 72-1, 72-2, 75) that were filed or made in
response to or in support of Plaintiff’s supplemental submissions.
I.

Factual and Procedural Background
Plaintiff Binh Hoa Le (“Plaintiff” or “Le”), the former Chief Human Resources Officer

(“CHRO”) and Executive Vice President of Defendant Exeter Finance Corp. (“Exeter”), originally
brought this action against his former employer Exeter and Exeter’s parent company Enzo Parent,
LLC (“Enzo”) (collectively, “Defendants”) on October 2, 2015, in the 191st Judicial District Court,
Dallas County, Texas, after his employment was terminated on February 23, 2015. Le asserts claims

Memorandum Opinion and Order – Page 2

for breaches of a July 25, 2013 agreement and a May 2014 Management Profits Interest Unit
Agreement (“PIU Agreement”). In his First Amended Petition, dated October 16, 2015, Plaintiff
asserts claims against Defendants for (1) breach of contract; (2) fraud, fraudulent inducement, and
fraud by nondisclosure or omission; and (3) alleged violations of the Texas Commission on Human
Rights Act (“TCHRA”), Tex. Lab. Code Ann. §§ 21.001, et seq. Plaintiff also seeks relief under the
equitable theories of quantum meruit, unjust enrichment, and money had and received.
On December 1, 2015, Defendants removed the action to federal court after Plaintiff filed
his Second Amended Petition (“Complaint”), the live pleading, which includes his previously
asserted claims and requests for relief under state law, in addition to new federal employment law
claims for retaliation under Title VII of the Civil Rights Act of 1964, et seq. (“Title VII”), which are
also brought pursuant to 42 U.S.C. § 1981; the Fair Labor Standards Act of 1938, 29 U.S.C. § 201,
et seq. (“FLSA”); the Americans with Disabilities Act, 41 U.S.C. § 12111, et. seq. (“ADA”); the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (“ADEA”); and the Family and
Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. (“FMLA”). Plaintiff’s employment law claims
are based on his contention that he engaged in protected activity in opposing unlawful employment
practices by Exeter involving other Exeter employees, and Exeter retaliated by firing him.
Plaintiff seeks to recover actual damages in an amount determined to have been sustained
by him; exemplary damages, attorney’s fees, prejudgment and postjudgment interest, and costs.
Plaintiff alleges entitlement to exemplary damages under Chapter 41 of the Texas Civil Practice and
Remedies Code and Texas Labor Code § 21.2585, “as well as under 29 U.S.C. § 621, et seq., 42
U.S.C. § 12111, et seq., among others.” Pl.’s Compl. ¶ 62. Plaintiff’s request for attorney’s fees is
made pursuant to section 38.00 of the Texas Civil Practice and Remedies Code; section 21.259 of
the Texas Labor Code or TCHRA; section 2000e-5(k) of Title VII; section 216(b) of the ADEA;

Memorandum Opinion and Order – Page 3

section 2617(a)(3) of the FMLA; “and 42 U.S.C. § 2000e, et seq., among others.” Pl.’s Compl. ¶
63.
In accordance with the deadline set by the court for filing dispositive motions, Defendants
moved for summary judgment on all of Plaintiff’s claims on December 16, 2016 (Doc. 27).
Defendants also moved for summary judgment on Plaintiff’s Category I damages for losses allegedly
sustained by him as a result of his leaving Lennox to join Exeter. On the same date, Defendants
moved to exclude the opinions of Plaintiff’s damages expert Karl Weisheit (“Weisheit) regarding
the two categories of damages identified in Weisheit’s report (Doc. 28). Regarding Plaintiff’s
Category I or Lennox losses, Weisheit expresses the opinion, based on Plaintiff’s fraudulent
inducement allegations, that Exeter’s conduct in inducing Le to leave Lennox, his former employer,
to work for Exeter caused Le to forgo or lose wages and the value of his Lennox equity portfolio.
Weisheit opines that Plaintiff is entitled to recover as damages these Category I losses, which he
concludes total $5,268,182. Regarding Category II or Exeter losses, Weisheit expresses the opinion,
based on Plaintiff’s wrongful termination and breach of contract allegations, that Le suffered
damages totaling $6,199,344 for unpaid severance, lost wages (past and future), the unpaid value of
his Enzo profits interest units (“PIUs”), and Cobra health insurance payments. Weisheit states in his
report that “[a]dditional facts and data are needed to be produced by Defendants in order to complete
my analysis of Mr. Le’s losses” but does not specify whether additional facts or data are needed with
respect to Category I or II losses or both. Defs.’ App. 28 (Doc. 28-2). He also states with respect to
PIUs losses that “[a]dditional information is needed and has been requested of Exeter . . . to calculate
the actual PIU Mr. Le should have received.” Defs.’ App. 35.
Defendants contend that Weisheit’s opinion regarding Plaintiff’s damages should be
excluded and Weisheit should not be allowed to testify regarding damages because he relies on

Memorandum Opinion and Order – Page 4

inaccurate facts and flawed methodology. Defendants assert that Weisheit’s opinion regarding
Plaintiff’s Category I losses should be excluded, as the evidence establishes that Le could not have
been fraudulently induced to leaving Lennox to join Exeter because he was fired for cause by Lennox
in April 2013 before learning of the job opportunity at Exeter in June 2013. In this regard,
Defendants contend that Plaintiff testified untruthfully while under oath in his deposition that he left
Lennox because he was recruited by Exeter, and Weisheit’s expert report, the contents of which were
verified by Le, relies on Plaintiff’s false allegations regarding his fraudulent inducement claim.
On January 6, 2017, the deadline to respond to Defendants’ motions for summary judgment
and to exclude the expert opinion of Weisheit, Plaintiff filed: (1) his response to Defendants’
summary judgment and expert motions, which included a request for continuance under Federal Rule
of Civil Procedure Rule 56(d) (Docs. 33, 34); (2) objections and a motion to strike Defendants’
summary judgment evidence (Doc. 31); (3) a motion under Rule 56(d) to extend his deadline to
respond to Defendants’ summary judgment and expert motions to April 17, 2017, to give him an
opportunity to conduct additional discovery, obtain a ruling on a previously filed motion to compel,
and supplement or amend his expert report before responding to Defendants’ summary judgment and
expert motions (Doc. 35); and (4) a First Amended and Supplemental Designation of Expert Witness
Pursuant to Fed. R. Civ. P. 26, without leave of court long after expiration of his September 6, 2016
deadline to designate experts (Doc. 32).2 Defendants opposed the requested continuance.
Thereafter, on March 13, 2017, Plaintiff filed an opposed motion (Doc. 57), requesting that
the court enter an order clarifying that the discovery deadline was unexpired as of March 2, 2018,
when it stayed all unexpired scheduling order deadlines. Alternatively, Plaintiff requested an

2

Although filed on January 6, 2017, these documents were not docketed until January 9, 2017, because they
were filed by Plaintiff using the court’s ECF emergency filing e-mail.
Memorandum Opinion and Order – Page 5

extension of the discovery deadline “until 21-days prior to trial,” so that he could depose three
witnesses before trial.
On August 2, 2017, Plaintiff moved to change the “highly confidential

attorney’s eyes

only” designation on documents produced by Defendants in response to the magistrate judge’s ruling
that granted in part Plaintiff’s Motion to Compel. Plaintiff contended that the documents should
have been designated as “confidential,” and Defendants’ use of the “highly confidential

attorney’s

eyes only” designation violated the parties’ agreed-upon protective order (Doc. 63). On April 16,
2018, approximately eight months after filing his original Motion to De-designate “Highly
Confidential” Documents in Defendants’ Productions, Plaintiff filed, without leave of court, a “First
Supplemental Brief” (Doc. 85) in support of his Motion to De-designate.
On August 18, 2017, approximately six months after briefing on Plaintiff’s Motion for
Continuance and seven months after Defendants’ summary judgment motion was complete and
without leave of court, Plaintiff filed a “Supplemental Submission in Further Support of [His]
Motion for Continuance [Related to Docket Nos. 27, 28, 35, 37 & 46]”3 (Doc. 64) that includes
additional argument and attached evidence in support of Plaintiff’s response to Defendants’ summary
judgment motion and motion to exclude expert testimony. On August 24, 2017, Plaintiff filed a
“Second Supplemental Submission in Opposition to Defendants’ Motion for Summary Judgment
[Related to Docket Nos. 27, 33, & 41]” (Doc. 68) that includes additional argument and attached
evidence in support of his response to Defendants’ summary judgment motion. The August 18, 2017

3

Document Nos. 27 and 28 referenced in the title of this supplemental submissions are Defendants’ summary
judgment motion and motion to exclude Plaintiff’s expert testimony. Document No. 35 is Plaintiff’s Motion for
Continuance. Document No. 37 is Defendants’ January 20, 2017 response to the Motion for Continuance, and Document
No. 46 is Plaintiff’s February 3, 2017 reply in support of his Motion for Continuance.

Memorandum Opinion and Order – Page 6

“Supplemental Submission” was filed and appears as a motion on the docket sheet. Both of these
supplemental submissions by Plaintiff resulted in a new round of briefing. See Docs. 72, 75.
On December 15, 2017, without leave of court and more than one year after expiration of his
September 6, 2016 deadline to designate experts, Plaintiff filed a Second Amended and
Supplemental Designation of Expert Witnesses Pursuant to Fed. R. Civ. P. 26, which indicates that
a copy of Weishert’s Second Amended and Supplemental expert report was served on Defendants
on the same date. Based on this amended and supplemental report, Plaintiff filed a Supplemental
Submission in Opposition to Defendants’ Motion to Exclude Plaintiff’s Expert.
On April 4, 2018, without leave of court and more than one year after permissible briefing
on the summary judgment under this district’s Local Civil Rules was complete, Plaintiff filed a
twelve-page “Second Supplemental Submission to Defendants’ Motion for Summary Judgment
[Related to Docket Nos. 27, 33, 41, 68, and 69]” (Doc. 82) to which Plaintiff attaches 121 pages
consisting of declarations by Plaintiff and Plaintiff’s counsel and other evidence in support of
Plaintiff’s response to Defendants’ summary judgment motion.
On April 13, 2018, Plaintiff filed a Second Motion to Compel (Doc. 83) documents that
Plaintiff contends should have been produced by Defendants after the court overruled their
objections to the magistrate judge’s discovery order several months earlier on September 27, 2017.
On April 23, 2018, the court entered an order directing the parties to not file any further motions or
documents, except for those related to Plaintiff’s Second Motion to Compel, as the constant filing
of documents was delaying and interfering with the court’s ability to manage the case and rule on
pending motions:
The court is currently reviewing the pending motions filed in this case. The court,
however, cannot rule on the pending motions if Plaintiff continues to file motions
and materials related to the pending motions. Accordingly, the court directs the

Memorandum Opinion and Order – Page 7

parties to not file any further motions, briefs, documents, or materials without first
obtaining leave of court until the court rules on the pending motions. The only
exception to this order is Plaintiff’s Second Motion to Compel (Doc. 83), filed April
13, 2018. Any response to this motion by Defendants and related materials must be
filed by April 30, 2018, and any reply by Plaintiff must be filed by May 4, 2018.
Sanctions will be assessed against any party, attorney, or both who violate this
order.
Order (Doc. 88). At the time the court entered this order, it had recently become aware that Plaintiff
had filed a number of supplemental and amended submissions without leave of court, but it did not
know Plaintiff had filed two additional supplemental submissions (Docs. 82, 85) without leave of
court two weeks before entry of this order. Because of the court’s order staying the filing of all
documents, except those pertaining to Plaintiff’s Second Motion to Compel, Defendants were unable
to respond to these new supplemental submissions by Plaintiff that were filed in support of his
original summary judgment response and motion to dedesignate or redesignate documents.
Defendants, however, were able to respond to Plaintiff’s Second Motion to Compel, to which
Plaintiff did not file a reply.
Before reaching Plaintiff’s discovery motions (Docs. 63, 83) and Defendants’ summary
judgment and expert motions, the court addresses Plaintiff’s requests to continue the discovery
deadline and his deadline to respond to Defendants’ summary judgment and expert motions, and the
effect, if any, of Plaintiff’s numerous unauthorized supplemental and amended submissions that
were filed without obtaining leave of court, as resolution of these matters affects the evidence and
arguments that the court considers in ruling on Defendants’ summary judgment and expert motions.
II.

Unauthorized Supplemental Submissions and Materials Filed by Plaintiff
As noted, Plaintiff filed a number of “supplemental submissions” and briefs, without first

seeking and obtaining leave of court, in support of his Motion for Continuance, responses to
Defendants’ summary judgment and expert motions, and Motion to De-designate “Highly

Memorandum Opinion and Order – Page 8

Confidential” Documents. Le also amended and supplemented his expert designation and report two
times after Defendants moved for summary judgment and long after expiration of the expert
deadlines in the Scheduling Order without first seeking and obtaining the court’s permission in an
attempt to cure Plaintiff’s deficiencies, as noted by Defendants’ summary judgment and expert
motions.4
Plaintiff’s Motion for Continuance (Doc. 35), which was filed January 6, 2017, became ripe
on February 3, 2017, when Le filed his reply (Doc. 46) in support of the motion. Although Le’s
Motion for Continuance included a request to continue his summary judgment deadline under Rule
56(d), he filed a response to Defendants’ summary judgment motion on the same date he filed his
Motion for Continuance, and the summary judgment motion became ripe when Defendants filed
their reply in support of the motion on January 20, 2017. After these motions became ripe, but
before the court could rule on Plaintiff’s requested continuance, Plaintiff filed three supplemental
submissions, without leave of court, in support of his Motion for Continuance and response to

4

Le sought leave in his Motion for Continuance to extend his deadline to respond to Defendants’ summary
judgment and expert motions. Le, however, never requested leave to file supplemental materials in support of his Motion
for Continuance. Regardless, allowing him to do so merely because new evidence supporting his summary judgment
response was later uncovered would defeat the requirement that a movant, to obtain a continuance under Rule 56(d), must
first identify the specific discovery needed, show how the additional discovery would demonstrate that a genuine dispute
of material fact exists to rebut the movant’s grounds for summary judgment, and show that discovery was diligently
pursued. Stults v. Conoco, Inc., 76 F.3d 651, 657-58 (5th Cir. 1996) (citation omitted); Wichita Falls Office Assocs. v.
Banc One Corp., 978 F.2d 915, 919 (5th Cir. 1992). Le also failed to request leave to amend or supplement his expert
designations or Weisheit’s expert report after expiration of the September 6, 2016 deadline in the Scheduling Order. Le,
instead, filed, served, and relied upon the supplemental and amended expert documents presumably on the
misunderstanding that such supplementation was permitted without leave of court because he reserved the right to do
so in each of his expert designations. See Docs. 17, 32, 77 (“Plaintiff reserves the right to supplement his expert
designations pursuant to Rule 26(a)(2)(E) of the Federal Rule of Civil Procedure.”). Rule 26(a)(2)(E) requires parties
to supplement their expert disclosures when required under Rule 26(e), but Rule 26(a)(2)(D) sets forth the time for
parties to identify their experts and provide expert reports within the deadlines set by the district court’s scheduling order.
Fed. R. Civ. P. 26(a)(2)(D) (“Time to Disclose Expert Testimony. A party must make these disclosures at the time and
in the sequence that the court orders” or “at least 90 days before the date set for trial” in the absence of a court order.).
A district court may grant a party leave to supplement an expert’s report after the deadline in the scheduling order has
expired, but only if good cause is shown under Rule 16(b). Likewise, leave was not sought to file a supplemental brief
and materials in support of his discovery Motion to De-designate after the motion was ripe, and leave was not granted
by the court to file any of the supplemental materials before they were filed.

Memorandum Opinion and Order – Page 9

Defendants’ summary judgment motion. These supplemental submissions were filed on August 18,
2017, August 24, 2017, and April 4, 2018, between six and fourteen months after Plaintiff’s and
Defendants’ motions became ripe. Plaintiff’s August 18 and 24, 2017 “Supplemental Submission[s]”
(Docs. 64, 68) resulted in an entirely new round of summary judgment briefing by the parties that
was not complete until September 28, 2017, when Le filed a reply in support of his “Supplemental
Submission[s],” and approximately 800 additional pages of briefing and appendices. As noted, no
additional briefing or evidence was filed by Defendants in response to Plaintiff’s third supplemental
submission that was filed on April 4, 2018 (Doc. 82), because the court directed the parties to not
file any further materials, other than those related to Plaintiff’s Second Motion to Compel, without
first seeking and obtaining leave of court.
As these “Supplemental Submission[s]” by Le contain additional argument and evidence in
support of his Motion for Continuance and in opposition to Defendants’ summary judgment motion,
both of which became ripe long before the “Supplemental Submission[s]” were filed, the court
construes them as unauthorized surreplies or supplemental filings. For similar reasons, the court
construes the “First Supplemental Brief” (Doc. 85) filed by Plaintiff on April 16, 2018, in support
of his previously filed Motion to De-designate “Highly Confidential” Documents in Defendants’
Productions, as an improper surreply or supplement to his prior motion that was filed without leave
of court, as it was filed approximately eight months after the original motion and approximately
seven months after the original motion became ripe on September 6, 2017. The only stated reason
for filing this surreply or amendment is that Defendants’ alleged abuse of the parties’ Protective
Order has “gotten worse” since Plaintiff first complained about Defendants’ document production
designations.

Memorandum Opinion and Order – Page 10

Surreplies are “appropriate only when the movant raises new legal theories or attempts to
present new evidence at the reply stage.” Brackens v. Dallas Ind. Sch. Dist., No. 3:09-CV-06420-D,
2010 WL 5464823, at *5 (N.D. Tex. Sept. 20, 2010) . The scheduling order entered in this case on
February 26, 2016, states as follows regarding motion practice and the filing of surreplies, and filings
that have the effect of a surreply after briefing on a motion is complete:
Once a motion is filed, the Local Civil Rules permit a response by the nonmovant
and a reply by the movant. See Local Civil Rule 7.1. Thus, the movant is entitled to
file the last pleading. Surreplies, and any other filing that serves the purpose or has
the effect of a surreply, are highly disfavored, as they usually are a strategic effort by
the nonmovant to have the last word on a matter. The court has found that surreplies
usually are not that helpful in resolving pending matters, and only permits pleadings
beyond Local Civil Rule 7.1 in exceptional or extraordinary circumstances.
Consequently, a party must not seek leave to file a surreply as a routine matter.
Scheduling Order ¶ 4 (Doc. 118). Based on this same reasoning, the court has previously stricken
surreplies filed without leave of court and denied requests for leave to file surreplies when the
movant fails to show that exceptional circumstances exist. See, e.g., Lacher v. West, 147 F. Supp.
2d 538, 539 (N.D. Tex. 2001). Local Civil Rule 56.1, which applies to summary judgment motions,
provides that, “[e]xcept as expressly modified, the motion practice prescribed by LR 7.1-7.3 is not
affected by LR 56.2-56.7.” Thus, Local Rule 7.1 applies to summary judgment practice. Local Civil
Rule 56.7, which also applies to summary judgment motions, further provides that, “[e]xcept for the
motions, responses, replies, briefs, and appendices required by these rules, a party may not, without
the permission of the presiding judge, file supplemental pleadings, briefs, authorities, or evidence.”
Local Rule 56.7 was meant to “address [ ] the former practice of filing supplemental materials,
without leave of court, at any time while the motion was pending” because “[s]uch filings often
prompted requests . . . to respond to the new materials, thereby delaying a decision based on a
supplemental filing (and response) that may have had no bearing on the court’s ruling, or that

Memorandum Opinion and Order – Page 11

otherwise created uncertainty about whether the summary judgment motion was ripe for a decision.”
Home Depot U.S.A., Inc. v. National Fire Ins. Co. of Hartford, No. 3:06-CV-0073-D, 2007 WL
1969752, at *2 (N.D. Tex. June 27, 2007).
Regardless of whether Le’s filings are viewed as surreplies or supplements, none was
authorized, as leave was not sought and obtained by Le before they were filed. Moreover, Le has
not demonstrated exceptional circumstances, and the court determines that exceptional circumstances
do not exist to warrant granting leave to allow the filing of these materials, which have only served
to unnecessarily complicate, confuse, and delay the proceedings in this case by creating a continually
moving target and motions that never become ripe long enough for the court to rule on them.
One example of the moving target created by Le’s unauthorized supplemental submissions
is his First and Second Amended Supplemental Expert Reports and designations and related
materials filed in connection with Defendants’ Motion to Exclude Certain Opinions of Plaintiff’s
Expert (“Motion to Exclude”) (Doc. 28). The court’s Scheduling Order set a deadline of September
6, 2016, for Plaintiff’s designation of experts and compliance with Rule 26(a)(2)’s requirement for
disclosure of expert testimony and reports. Although his Motion to Compel (Doc. 13), filed August
24, 2016, was pending as of September 6, 2016, Plaintiff did not seek a continuance to designate his
expert Weisheit or disclose his expert report before expiration of the September 6, 2016 expert
deadline on the ground that Defendants had not produced information requested by Plaintiff that was
needed by Weisheit to prepare his expert report and damages calculation. Plaintiff, instead, filed
timely his Designation of Experts on September 6, 2016, in accordance with the court’s Scheduling
Order, and waited until after Defendants moved on December 16, 2016,5 to exclude his expert’s
testimony regarding damages and pointed out various deficiencies in Weisheit’s report before
5

December 16, 2016, is the deadline in the Scheduling Order for challenging experts.

Memorandum Opinion and Order – Page 12

seeking a continuance to supplement or amend the report after conducting additional outstanding
discovery.
Before the court could rule on the requested continuance, which would require reviving the
previously expired expert designation deadline in the Scheduling Order, Plaintiff filed a First
Amended and Supplemental Designation of Expert Witnesses (Doc. 32) on January 6, 2017, and
relied upon the First Amended and Supplemental Expert Report of Weisheit (Docs. 34, 34-1, 34-2)
in responding to Defendants’ Motion to Exclude, which was based on the original Weisheit report
previously disclosed by Plaintiff. Plaintiff notes in response to the Motion to Exclude that the court
had not ruled on his Motion to Compel. He fails, however, to explain why the new information or
analysis in Weisheit’s First Amended and Supplemental Expert Report could not, with the exercise
of reasonable diligence, have been included in Weisheit’s original expert report by the September
6, 2016 expert deadline or before Defendants filed their Motion to Exclude on December 16, 2016.
Plaintiff, instead, simply notes in his response to the Motion to Exclude as follows regarding the
First Amended and Supplemental Expert Report:
Simultaneously with the filing of this Response, Plaintiff is serving a First Amended
and Supplemental Designation of Expert Witnesses along with a First Amended and
Supplemental Expert Report of Karl D. Weisheit. See App. 32-59. Mr. Weisheit’s
Supplemental and Amended Report updates his calculation of Plaintiff’s lost wages
to reflect Plaintiff’s actual compensation since the initial report was prepared in
September.
Pl.’s Resp. to Mot. to Exclude 3. Because Plaintiff’s Motion to Compel was pending at this time,
the new or revised lost wages calculation in Weisheit’s January 6, 2017 report could not have been
based on discovery that was the subject of the pending Motion to Compel as contended by Plaintiff,
and Plaintiff never sought leave on any other basis to amend or supplement Weisheit’s expert report.
On January 20, 2017, Defendants filed a reply in support of their Motion to Exclude, contending that

Memorandum Opinion and Order – Page 13

Plaintiff’s attempt at salvaging his expert’s damages opinion by supplementing or amending that
opinion was unavailing.
In an attempt to get the last word and cure the deficiencies noted regarding Weisheit’s
original and subsequent First Amended and Supplemental Expert Report, Plaintiff filed a Second
Amended and Supplemental Expert Report on December 15, 2017, more than a year after expiration
of the expert designation deadline without leave of court, indicating that Weisheit’s Second
Amended and Supplemental Expert Report was served on Defendants. In addition, Plaintiff filed
an unauthorized Supplemental Submission in Opposition to Defendants’ Motion to Exclude on the
same date based on Weisheit’s Second Amended and Supplemental Expert Report, asserting:
Defendants’ Motion to Exclude is premised entirely on the argument that Mr.
Weisheit had no reliable factual basis on which to value the PIUs. Now, he does. The
Defendants have produced reports prepared by their own auditors that assign
unit-level values to the PIUs, and Mr. Weisheit has used those reports to calculate[]
accurate and reliable valuations for the PIUs awarded to Mr. Le. Those calculations
show: (1) Mr. Le had a reasonable expectancy interest of $5,013,517.00; (2) Exeter
was unjustly enriched by $383,904.00 when it rescinded his unvested equity; and (3)
Plaintiff’s Supplemental Submission in Opposition to Defendants’ Motion to
Exclude [shows that] Exeter breached its contract with Mr. Le when it called his
vested equity at $0.00, knowing it to be worth $38,859.00. As such, the Defendants’
Motion to Exclude is moot, and should be denied.
Pl.’s Supp. Submission (Doc. 78, 78-1). Le’s supplemental expert filings, however, fail to address
or cure the deficiencies originally noted by Defendants in their Motion to Exclude, and, as herein
explained, Le’s repeated contentions regarding alleged discovery abuse by Defendants do not entitle
him to an extension under Rule 56(d) or 16(b) to continue his summary judgment response deadline
or his expert designation and report deadline.
Plaintiff maintains, based on First and Tenth Circuit case authority, that there is no fixed time
limit for seeking a continuance under Rule 56(d)(2) and supporting affidavits or declarations, as long
Memorandum Opinion and Order – Page 14

as the continuance is sought within a “reasonable time” after receiving the summary judgment
motion and not later than the deadline for responding to the summary judgment motion.
Notwithstanding this acknowledgment, his observance of this district’s Local Civil Rules and the
court’s Scheduling Order in other respects6 suggests that he simply elected to abide by some Local
Civil Rules and Scheduling Order requirements, but he disregarded others applicable to discovery,
court-ordered deadlines, and the prohibition against filing surreplies and supplemental materials
regarding pending and ripe motions. Instead of satisfying and explaining why he was entitled to a
continuance under Rule 56(d) when he filed his Motion for Continuance on January 6, 2017, Plaintiff
contended that discovery relevant to his claims was ongoing or incomplete and continued to file
supplements in support of the requested continuance every time Defendants produced additional
documents or Plaintiff deposed a new witness pursuant to the parties’ discovery agreement to extend
the discovery deadline to March 13, 2017, in an attempt to show that evidence obtained via ongoing
discovery supported his requested continuance and rebutted Defendants’ summary judgment and
expert motions.
The parties’ discovery agreement, however, and Plaintiff’s request to continue discovery until
21 days before the original March 3, 2017 trial setting, if granted, would have allowed the parties
to conduct discovery until approximately three months after the dispositive motion deadline and
expert challenge deadlines, one week after the pretrial materials deadline, and only two to three
weeks before the trial of this case was originally set in violation of the court’s Scheduling Order,
which “requires that discovery be completed at least four months before the trial setting.”

6

For example, Plaintiff’s Motion for Continuance is signed by Le and his attorney in accordance with Local
Rule 40.1 and paragraph 13 of the Scheduling Order.

Memorandum Opinion and Order – Page 15

Scheduling Order ¶ 6. The agreement also violates paragraph 6 of the Scheduling Order, which states
that “[t]he parties may agree to extend this discovery deadline, provided (1) the extension does not
affect the trial setting, dispositive motions deadline, or pretrial submission dates, and (2) written
notice of the extension is given to the court.” The Notice of Extension of Discovery Cutoff (Doc.
21), which the parties filed on November 1, 2016, less than one month before the dispositive motion
deadline, provides notice of the parties’ agreement to continue discovery to March 13, 2017, “[i]n
accordance with paragraph 6 of the Scheduling Order (Doc. #9),” yet Plaintiff’s Motion for
Continuance to extend his deadline to respond to Defendants’ summary judgment and expert motions
under Rule 56(d) is based in large part on the parties’ agreement to continue discovery past the
December 2, 2016 deadline in the Scheduling Order and schedule depositions in February, after
briefing on any summary judgment motion would be complete, although the Scheduling Order
expressly prohibits agreements to extend the discovery deadline without leave when doing so will
affect the dispositive motion deadline, trial setting, and pretrial materials deadline.
Rather than providing clarification, the numerous supplemental filings totaling approximately
820 pages have unnecessarily delayed the resolution of all the pending motions in this case and the
trial, which the court had no choice but to vacate in light of the morass and confusion created by the
filings. Because of the multiple unauthorized filings by Plaintiff, resolution of the Motion to
Exclude, for example, will require the court to consider three different versions of Plaintiff’s expert
report totaling 80 pages and the parties’ arguments regarding each damages report. Similarly,
because Plaintiff filed numerous other supplemental filings without first obtaining leave, the court,
instead of considering a motion and supporting evidence, a response and supporting evidence, and
a reply as contemplated by this district’s Local Civil Rules and the Scheduling Order in this case,
Memorandum Opinion and Order – Page 16

was faced with the difficult task of first identifying all of the supplemental filings that pertain to
Defendants’ summary judgment motion, Defendants’ Motion to Exclude, Plaintiff’s Motion for
Continuance, and Plaintiff’s Motion to Dedesignate, and then reviewing the hundreds of additional
pages of documents filed before ruling on the motions. The last of the supplemental submissions by
Plaintiff was filed as late as April 4, 2018,7 and April 16, 2018, together with a Second Motion to
Compel by Plaintiff that was filed on April 13, 2018, only days before Plaintiff moved, on April 17,
2018, for the court to set a trial and pretrial deadlines. If the court had allowed the parties to file

7
In an attempt to justify this supplemental submission (Doc. 82), filed April 4, 2018, which deals exclusively
with Le’s employment law claims, Le notes the additional discovery that took place after Defendants moved for summary
judgment, including documents produced by Defendants after their objections to the magistrate judge’s ruling on his first
motion to compel were overruled and asserts that production of his work e-mail accounts “still is not complete.” Pl.’s
Supp. Summ. J. Resp. 2. He also indicates that depositions were taken by him, albeit, after the court-ordered discovery
deadline pursuant to the parties’ discovery agreement. In addition, Le notes that he discovered that Exeter is a party to
a class action despite Defendants’ failure to produce this information and contends that this corroborates his FLSA
retaliation claim and indicates “Exeter’s apparent attempt to conceal the lawsuit.” Id. at 6. Plaintiff asserts that his
supplemental brief and evidence consisting of approximately 133 pages total is “based on additional evidence newly
discovered since [he] supplemented his Response to the Defendants’ Motion for Summary Judgment” the last time. Id.
at 3 (emphasis added). This assertion and Le’s references to ongoing discovery are misleading and do not justify this
untimely supplemental submission, as they do not accurately reflect the lack of diligence on Le’s part. Most of the
evidence cited in this supplemental response is evidence previously included in Le’s appendix to his initial response to
Defendants’ summary judgment motion on January 6, 2017, including Le’s own affidavit or evidence that could have
been easily obtained by Le. According to an affidavit by Le’s attorney, the “new” information regarding the class action
consist of publicly available documents that were filed July 15, 2017, and obtained by his attorney by conducting a
simple search on PACER (the acronym for Public Access to Court Electronic Records), which is an electronic public
access service that allows users to obtain case and docket information online. Neither Le nor his attorney indicates why
this information could not have been obtained long before April 2018. In any event, the 2017 lawsuit is entirely irrelevant
as to whether Le reasonably relied in December 2013, four years earlier, that he was opposing conduct by Exeter that
was unlawful under the FLSA, whether his concerns were sufficient to put Exeter on notice that he was opposing
employment practices prohibited by the FLSA, and whether he “stepped outside” of his role as CHRO in doing so.
Likewise, Le’s inclusion in his appendix of form letters from Thomas & Solomon to Exeter soliciting legal work on April
22, 2015, after Le was fired, are not relevant to any claims asserted by him and only used as an attempt to discredit the
deposition testimony of Tom Anderson who was deposed after the December 2, 2016 deadline in the Scheduling Order
for completing discovery. This and other evidence and arguments by Le far exceed the stated need and scope of the
continuance sought by him with respect to his employment law claims. Further, while Le makes a number of arguments
based on evidence produced by Defendants in response to his motion to compel, including the December 2013 Power
Point presentation that he gave to the Board of Directors, virtually all of his arguments consist merely of him contending
that this evidence further corroborates his prior arguments and affidavit testimony. In other words, these arguments are
clearly improper surreply arguments, as they are an attempt by Le to “get the last word” on Defendants’ summary
judgment motion in violation of the district’s Local Civil Rules and the court’s Scheduling Order.

Memorandum Opinion and Order – Page 17

responses to and replies in support of these motions and supplemental submissions, the earliest date
the trial could have been scheduled was September 21, 2018, as the court’s Scheduling Order
“requires that discovery be completed at least four months before the trial setting and that any
dispositive motions be filed at least three and one-half months before the trial setting.” Scheduling
Order ¶ 13. This assumes, however, that the court could have waded through all of the materials
filed within this short period of time.
For all of these reasons, as well as the reasons discussed in the next section regarding
Plaintiff’s Motion for Continuance, the court strikes all amended or supplemental submissions that
were filed by Plaintiff without leave of court in violation of the court’s Scheduling Order, this
district’s Local Civil Rules, and Federal Rules of Civil Procedure, as well as the parties’
submissions, arguments, and evidence that were filed or made in response to or in support of
Plaintiff’s supplemental submissions (Docs. 32, 64, 64-1, 68, 68-1, 72, 72-1, 72-2, 75, 77, 78, 78-1,
82, 82-1, 85, 85-1).
III.

Plaintiff’s Motion for Continuance (Doc. 35)
On January 6, 2017, although Le filed responses to Defendants’ summary judgment and

expert motions on his required deadline, he also moved for a continuance to April 17, 2017, to
extend his deadlines, pursuant to Federal Rule of Civil Procedure 56(d), to respond to Defendants’
summary judgment and expert motions and incorporated his Motion for Continuance into his
summary judgment response. Buried within the Motion for Continuance is also a request by Plaintiff
to revive the expert designation deadline that expired four months earlier on September 6, 2016, to
allow his expert Weisheit to supplement his expert report with a calculation of the value of his PIUs
“based on the evidence wrongfully withheld to date,” including “Duff & Phelps’ calculations of the
Memorandum Opinion and Order – Page 18

fair market value of the company and its PIUs” to cure the deficiencies noted in Defendants’ Motion
to Exclude. Pl.’s Mot. for Continuance 10.
A.

The Parties’ Contentions

Plaintiff contends that he needs an extension to conduct “necessary discovery” in the form
of four oral depositions and “obtain . . . necessary rulings” on the Motion to Compel he filed on
August 24, 2016, before he responds to Defendants’ summary judgment and expert motions and
before the court rules on Defendants’ summary judgment and expert motions. Plaintiff asserts that
the parties scheduled depositions for Anderson, Samantha Montalbano (“Montalbano”), Mark Floyd
(“Floyd”), and Gena Evertson (“Everston”) between January 13 and February 9, 2017, to take place
before the parties’ agreed-upon discovery deadline of March 13, 2017. Plaintiff asserts that a
continuance under Rule 56(d) is warranted because the “additional discovery” he seeks to conduct
is “germane” to both of Defendants’ motions, which seek dismissal of all of his claims and exclusion
of his expert’s opinions. Pl.’s Mot. 1, 5. Plaintiff asserts that “the lack of ruling on [his] Motion to
Compel has come up in oral depositions” and has been used as a basis by defense counsel to instruct
at least one witness, Walter Evans, to not respond to questions posed during a December 8, 2016
deposition.8 Id. (quoting Dec. 8, 2016 Dep. of Walter Evans). For support, Plaintiff quotes from
Walter Evans’s (“Evans”) deposition testimony during which Evans was instructed to not respond
to a question as to why the employment of the wife of Robert McWhorter, a former Exeter
employee, was terminated. Exeter’s counsel took the position that the reasoning for Exeter’s

8

Plaintiff asserts that this issue “has come up in oral depositions to date” but only cites to evidence that
establishes that the issue has arisen in one deposition, the December 8, 2016 deposition of Walter Evans.

Memorandum Opinion and Order – Page 19

decisions to terminate former employees was the subject of a pending discovery dispute. In
response, Plaintiff’s counsel argued:
The most relevant thing in this whole case, the furthest thing from irrelevant, is why
people were let go and what [Plaintiff] had to say about it and if the reason [Plaintiff]
was let go is because he objected to their unlawful termination. That’s one of our
claims. So you want to say it’s irrelevant, that fine. We’ll just go have a hearing on
it, but we’re just going to have to redo this depo.
Id.
Regarding his employment law claims, Plaintiff contends that an extension of his summary
judgment response deadline is necessary because Defendants have moved for summary judgment
on all of his employment claims that involve Exeter’s allegedly retaliatory termination of his
employment but have refused to allow or respond to discovery regarding the reasons certain former
employees were fired by Exeter. Plaintiff asserts that, although he alleges in his Complaint that he
was fired because of matters he reported to Exeter, Defendants have declined to produce information
regarding “[his] reports to [Exeter’s] Board of Directors on FLSA issues” before Plaintiff’s Motion
to Compel is resolved. Pl.’s Mot. for Continuance 6.
Plaintiff asserts that a continuance is also needed to respond to Defendants’ summary
judgment arguments regarding his fraud claim because his “fraud-related claims involve certain
representations made to [him] by Exeter’s previous CEO, Mark Floyd, prior to [his] employment,”
and the parties have agreed to a date for Plaintiff to depose Floyd, but the deposition is not scheduled
under February 7, 2017. Plaintiff contends that “Floyd’s testimony is relevant to at least Plaintiff’s
fraud claims, which Defendants seek to dismiss in their dispositive motion.” Id. at 6-7. Plaintiff
maintains that “diligence and delay [are] not an issue” because this deposition will take place within
the [parties’] agreed[-]upon discovery period (which ends March 13, 2017).” Id. at 7.
Memorandum Opinion and Order – Page 20

Regarding his claim for breach of the PIU Agreement, Plaintiff asserts as follows:
Plaintiff alleges Enzo violated the terms of the PIU Agreement, specifically,
section 4.3, which requires “Fair market value” of Plaintiff’s profit interest units
(“PIUs”) to be determined “on a going basis as if the Company and its Subsidiaries
were sold as an entirety in an arm’s length transaction.” See PIU Agreement, attached
as D. App. 30 to Defendant’s Motion for Summary Judgment Appendix. According
to the Board’s March 9, 2015 Resolution (the “Resolution”), the Enzo Board
assigned $0.00 as the fair market value of Plaintiff’s PIUs. A true and correct copy
of the “Resolution” is attached hereto as Exhibit “B” and incorporated herein by
reference. The Board arrived at this finding, despite testimony that an independent
audit was performed by Duff & Phelps on Exeter, at least annually, to value those
same PIUs and Exeter’s General Counsel testified that he recalls some value being
assigned to the PIUs. See Exhibit “A” at 66:16-68:25 [Dec. 8, 2016 Dep. of Walter
Evans]. Brad Nall, a Senior VP of Finance at Exeter, also corroborated this
independent annual audit by Duff & Phelps. See Exhibit “C” for relevant portions of
Brad Nall’s [Dec. 7, 2017] oral deposition, which are attached hereto and
incorporated herein at 11:3-6, 29:12-32:6.
Pl.’s Mot. for Continuance 7. Plaintiff contends that additional time is needed to respond to
Defendants’ summary judgment motion regarding this contract claim because Defendants have not
produced the Duff & Phelps audit reports of the PIUs, “[he] is asking for such documentation in
connection with [his] Motion to Compel,” and “[s]uch documentation is relevant to whether or not
Defendant Enzo violated its contract with [him].” Id. According to Plaintiff, “[t]hese are just
examples of the issues that need to be addressed through discovery prior to a ruling on the Motion
for Summary Judgment,” which he contends is “premature due to the additional discovery needed
by [him] prior to the [parties’ agreed-upon] Discovery Deadline.” Id. at 7-8.
Defendants respond that Plaintiff is not entitled to a continuance of his summary judgment
response deadline because he has failed to meet the standard for obtaining a continuance under Rule
56(d). Defendants contend that “Plaintiff’s motion for continuance states, in a conclusory manner,

Memorandum Opinion and Order – Page 21

[that] he has not obtained discovery on general matters from Defendants[,]” but “[Plaintiff] has not
specified how the evidence he seeks will create a genuine issue of material fact to defeat summary
judgment. He also fails to identify specifically what relevant evidence his designated expert requires
to complete his analysis under any methodology.” Defs.’ Resp. 1. Defendants contend that, while
Plaintiff’s counsel submitted an affidavit in support of the motion for continuance, the affidavit fails
to show how the discovery Plaintiff seeks will create a genuine dispute of material fact as to any
summary judgment ground relied upon. Defendants contend that the unsworn arguments in
Plaintiff’s motion are similarly conclusory, and Plaintiff incorrectly focuses on the relevance of the
discovery sought instead of explaining how specific discovery will create a genuine dispute of
material fact as required under Rule 56(d). Defendants argue that, even if relevance was the test for
obtaining a continuance under Rule 56(d), the reason for another person’s employment being
terminated is not an element of his employment claims that require him to show “he opposed an act
that he ‘reasonably believed’ was unlawful, not that it was actually unlawful.” Id. at 5 (quoting
Heggemeier v. Caldwell Cty., 826 F.3d 861, 869 (5th Cir. 2016)). Defendants maintain that this
information regarding Plaintiff’s employment law opposition claims is uniquely within his
knowledge and possession.
Defendants assert that Plaintiff’s fraud-related claims likewise involve information that is
uniquely within his possession because, “[a]lthough Plaintiff refused to properly respond to
interrogatories requesting the representations allegedly made to him (See Doc. 25-1), the
representations would [have been] made to [him], so he is in possession of the evidence.” Defs.’
Resp. to Mot. for Continuance 6. In addition, Defendants note that their summary judgment motion

Memorandum Opinion and Order – Page 22

“does not argue whether representations were made, but, instead establish[es] [that the alleged
representations] are not actionable fraud.” Id.
Le notes in his reply that a hearing on his Motion to Compel (Doc. 13) was conducted on
January 31, 2017, and the magistrate judge “ruled overwhelmingly in [his] favor,” requiring
Defendants to produce: “Plaintiff’s work laptop, Plaintiff’s work email, documents reflecting
Exeter’s internal valuation of the equity awarded to Plaintiff, documents reflecting the reasons for
employee terminations that [he] has alleged were unlawful, and other critical evidence by no later
than Friday, March 3, 2017.” Pl.’s Reply 1-2 (Doc. 46). In light of this ruling, Le “reiterates his
request for an extension for time to respond to Defendants’ motions.” Id. at 2. Plaintiff asserts that
the requested extension is necessary because the court “cannot determine whether genuine issues of
material fact preclude summary judgment when the evidentiary record in this case is about to change
. . . drastically” as a result of the ruling on his Motion to Compel. Id. Plaintiff contends that the
requested extension will also give the parties time to depose Floyd, Anderson, and Montalbano
before the end of the parties’s agreed-upon March 13, 2017 discovery deadline. Plaintiff notes that
“Montalbano has yet to be served with the deposition subpoena as she continues to evade service of
process,” but that “Plaintiff hopes to serve [her] a reasonable time [before] the noticed deposition
. . . to avoid multiple trips to Park City, Utah” where she and Anderson are both located. Id.
Plaintiff disagrees that he has not identified with specificity the evidence needed to respond
to Defendants’ summary judgment and expert motions and notes that his Motion for Continuance
references two interrogatories and eight requests for production that are the subject of his Motion
to Compel as being necessary to respond to Defendants’ motions. Plaintiff contends that he also
specifically identified the independent audit performed by Duff & Phelps, which has been discussed
Memorandum Opinion and Order – Page 23

in multiple depositions but has not been produced to date. Plaintiff asserts that his motion describes
how Enzo violated the PIU Agreement by failing to value PIUs in accordance with that agreement,
and how Enzo’s $0 valuation of the PIUs contradicts the audits by Duff & Phelps that Defendants
have been ordered to produce. Plaintiff further asserts that Defendants have been ordered to produce
his computer and other documents that they contend have been uniquely in his possession or
knowledge all along. Plaintiff contends that he did not take his work-issued computer or related
communications with him when he left Exeter and, thus, Exeter “has always been ‘uniquely in
possession’ of those communications,” not him. Id. at 5.
Plaintiff contends that, as a result of the magistrate judge’s ruling, he “will soon have those
communications [by March 3, 2017], as well as evidence to support his opposition to certain
protected activities in support of his wrongful termination claims.” Id. Plaintiff requests an
extension to April 17, 2017, to respond to Defendants’ motions, arguing that Defendants should not
be rewarded for their discovery abuse by striking Plaintiff’s expert and dismissing his claims. In
addition, for the first time in his February 3, 2017 reply brief, Plaintiff requests a continuance of the
April 3, 2017 trial setting, and presumably the March 6, 2017 pretrial materials deadlines, that were
in place when Defendants filed their dispositive and expert motions.
B.

Discussion

Plaintiff’s request to continue the trial, which was raised for the first time in his reply brief,
is moot in light of the court’s decision on March 2, 2017, to vacate the trial setting and pretrial
deadlines pending resolution of the numerous outstanding motions (Doc. 51). The court, therefore,
focuses on Plaintiff’s requests for a continuance to April 17, 2017, to: (1) respond to Defendants’
summary judgment; (2) respond to Defendants’ Motion to Exclude Weisheit’s expert opinion
Memorandum Opinion and Order – Page 24

regarding certain damages; and (3) supplement his expert report after Defendants produce documents
that are the subject of his Motion to Compel.
1.

Rule 56(d) and 16(b) Legal Standards

Although Le seeks a continuance under Rule 56(d) to extend his deadlines to respond to both
of Defendants’ motions, this rule applies only to his request to continue his summary judgment
response deadline. Rule 56(d) provides that, when facts are unavailable to the summary judgment
nonmovant and the “nonmovant shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion
or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any
other appropriate order.” Rule 56(d) is “usually invoked when a party claims that it has had
insufficient time for discovery or that the relevant facts are in the exclusive control of the opposing
party.” Union City Barge Line, Inc. v. Union Carbide Corp., 823 F.2d 129, 136 (5th Cir. 1987).9 The
purpose of Rule 56(d), however, is not to permit the opponent of a summary judgment to complete
discovery, as “Rule 56 does not require that discovery take place before granting summary
judgment.” See McCarty v. United States, 929 F.2d 1085, 1088 (5th Cir. 1991) (citation omitted).
Thus, “[i]t not sufficient [for a summary judgment nonmovant] to allege that discovery is incomplete
or that [discovery] will produce needed but unspecified facts.” Id. at 1088. Rule 56(d), instead,
provides a mechanism for relief when the nonmovant has diligently pursued discovery but has not
had a full opportunity to conduct discovery needed to raise a genuine dispute of material fact in

9

Union City Barge Line, Incorporated dealt with a continuance under prior Rule 56(f). The Advisory
Committee Notes to the 2010 Amendment to Rule 56 indicate that subdivision (d) of Rule 56 “carries forward without
substantial changes the provisions of former subdivision (f).”

Memorandum Opinion and Order – Page 25

response to a summary judgment motion. See Wichita Falls Office Assocs., 978 F.2d at 919. The
party moving for a continuance under Rule 56(d) must, therefore, show why he needs the additional
discovery and how the additional discovery will demonstrate that a genuine dispute of material fact
exists to rebut the movant’s grounds for summary judgment. Stults v. Conoco, Inc., 76 F.3d 651,
657-58 (5th Cir. 1996) (citation omitted). In doing so, a party may not “rely on vague assertions that
additional discovery will produce needed, but unspecified facts.” Adams v. Travelers Indem. Co.
of Conn., 465 F.3d 156, 162 (5th Cir. 2006) (citation and quotation marks omitted). The party
requesting the extension must also show that relevant discovery has been diligently pursued, as it is
not incumbent on the district court to “aid non-movants who have occasioned their own predicament
on sloth.” Wichita Falls Office Assocs., 978 F.2d at 919.
Le’s request to continue his summary judgment response deadline until after the parties
conduct additional discovery is also governed by Federal Rule of Civil Procedure 16(b), as this
requested continuance will require modification of the court’s Scheduling Order and revival of the
December 2, 2016 discovery deadline. Likewise, Le’s request to continue his deadline to respond
to Defendants’ Motion to Exclude is governed by Rule 16(b) because he seeks to conduct additional
discovery and supplement his expert report after the deadlines in Scheduling Order for completion
of discovery (December 2, 2016) and for Plaintiff to designate experts and provide expert reports
(September 6, 2016) before responding to the Motion to Exclude.
Before the court can modify a scheduling order, the movant must first show “good cause”
for failure to meet the scheduling order deadline under Rule 16(b). S & W Enters., L.L.C. v.
Southwest Bank of Alabama, 315 F.3d 533, 536 (5th Cir. 2003). A scheduling order “may be
modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). The good

Memorandum Opinion and Order – Page 26

cause standard requires the “party seeking relief to show that the deadlines [could not] reasonably
[have been] met despite the diligence of the party needing the extension.” S & W Enters., 315 F.3d
at 535 (citation omitted). In deciding whether to allow an amendment to the scheduling order, a
court considers: “(1) the explanation for the party’s failure to meet the deadline; (2) the importance
of the amendment to the scheduling order; (3) potential prejudice if the court allows the amendment;
and (4) the availability of a continuance to remedy such prejudice.” Id. (internal quotation marks,
brackets, and citations omitted). These same factors apply to the failure to make required expert
disclosures under Rule 26(a) or the failure to make such disclosures timely.
2.

Motion to Continue Summary Judgment Response Deadline

In support of his Motion for Continuance, Plaintiff submitted the affidavit of his attorney,
Matthew S. Muckleroy, who states in pertinent part as follows:
2. I am attorney of record for Plaintiff Binh Hoa Le in the above referenced
matter. The parties agreed to conduct discovery in this matter until March 13, 2017.
See Docket No. 21. Plaintiff also has a pending Motion to Compel that was filed in
this matter on August 24, 2016. See Docket No. 13. Plaintiff seeks a continuance
of the Court’s ruling on Defendants’ Motion for Summary Judgment Motion [Docket
No. 27] and Motion to Exclude Certain Opinions of Plaintiff’s Expert [Docket No.
28] as well as an extension of time to respond to these motions. Opposing counsel
relies upon the Court’s (lack of) ruling on the Motion to Compel as a basis to prevent
discovery of certain subjects germane to the dispositive motion and expert motions,
as referenced in the Motion for Continuance. The request for an extension of time is
not for purpose of delay, but simply to conduct additional discovery during the
discovery period agreed[-]upon by the parties.
3. Both parties have also noticed several oral depositions during the next
month. These oral deposition are also germane to the issues raised in Defendants’
dispositive motion. For instance, Plaintiffs’ fraud-related claims involve allegations
regarding certain representations made to Plaintiff by Exeter’s previous CEO, Mark
Floyd, prior to Plaintiff’s employment. Plaintiff and Defendants agreed to take Mr.
Floyd’s oral deposition on February 7, 2017. Mr. Floyd’s testimony is relevant to at
least Plaintiff’s fraud claims, which Defendants seek to dismiss in their dispositive
motions.

Memorandum Opinion and Order – Page 27

4. Plaintiff also seeks certain written documentation prior to responding to
these motions, including, but not limited to the Duff & Phelps audit(s) referenced in
Mr. Nall’s oral deposition.
5. Plaintiff files this Motion, seeking a continuance of the Motion for
Summary Judgment and the Motion to Exclude[] to a date after the [parties’ agreedupon] Discovery Deadline, so that Plaintiff can (hopefully) receive a ruling on the
Motion to Compel and conduct the outstanding depositions prior to responding to the
aforementioned motions.
Further Affiant Sayeth Not.
Pl.’s Mot. for Continuance App. Ex. G (Doc. 35-1 at PageID 1240-41). Counsel’s statement, that
a continuance is needed until after “discovery of certain subjects” in Plaintiff’s Motion to Compel
is produced and “oral depositions” are taken because such discovery is “relevant” and “germane”
to Defendants’ summary judgment motion and Plaintiff’s claims, is far too vague. Id. Counsel’s
affidavit neither identifies specific discovery nor states how the discovery sought will create a
genuine dispute of material dispute in response to Defendants’ request for summary judgment. As
correctly noted by Defendants, relevancy is the standard under Rule 26 for conducting and
compelling discovery, but relevancy alone is insufficient for purposes of obtaining a continuance
under Rule 56(d), unless the discovery sought will also create a genuine dispute of material fact in
response to the movant’s summary judgment motion. The only discovery specifically identified in
counsel’s affidavit is the deposition of Floyd, Exeter’s former CEO, but again, no explanation is
provided as to why Floyd’s deposition will provide facts necessary to create a genuine dispute of
material fact. Counsel, instead, merely states that Floyd’s deposition “is relevant to at least
Plaintiff’s fraud claims.” Id.
Plaintiff’s Motion for Continuance fares no better even if the court considers the assertions
in the motion and reply. Plaintiff contends that depositions are scheduled for Anderson, Montalbano,

Memorandum Opinion and Order – Page 28

and Everstson in January and February 2017, but he does not explain what information he expects
to obtain through these depositions or how that information will create a genuine dispute of material
fact in response to any of the grounds on which Defendants have moved for summary judgment.
Plaintiff asserts that his fraud claim is based on representations that Floyd made to him prior to his
employment regarding the value of the PIUs, and that his “testimony is relevant to at least Plaintiff’s
fraud claims, which Defendants seek to dismiss in their dispositive motion.” Pl.’s Mot. for
Continuance 6-7; Pl.’s Reply 4. Plaintiff, however, fails to explain why he believes Floyd’s
testimony will create a genuine dispute of material fact regarding his fraud claim in response to
Defendants’ summary judgment motion.
Moreover, Defendants moved for summary judgment on Plaintiff’s fraud claim on the
grounds that: (1) Floyd’s representations regarding the projected value of the PIUs were opinions
or proposals that do not constitute actionable fraud under Texas law, and Le did not rely on such
statements; (2) Floyd’s representations and the offer letter provided to Le regarding a severance
payment are not actionable fraud, as terms of the offer letter clearly state that his eligibility for the
severance payment was subject to certain terms and conditions; and (3) there is no evidence that
Floyd or Exeter’s statements were false or made to Le with the intent to deceive him. Plaintiff
acknowledges that his fraud claim is based on alleged misrepresentations that were made to him.
Thus, facts regarding these alleged misrepresentations are within Le’s knowledge and possession
and can be set forth in an affidavit by him. Likewise, whether Le relied on the representations and
whether his reliance on the representations were justified or whether the representations are
actionable under Texas law are matters that do not require discovery and are not an appropriate basis
for seeking a continuance under Rule 56(d), which usually comes into play when a party contends

Memorandum Opinion and Order – Page 29

that “relevant facts are in the exclusive control of the opposing party.” Union City Barge Line, Inc.,
823 F.2d at 136. Moreover, if Plaintiff seeks to depose Floyd regarding the third ground raised by
Defendants, this is not clear from his Motion for Continuance.
Regardless, Le has not shown that he exercised diligence for purposes of Rule 56(d) or Rule
16(b) in attempting to schedule any of the four depositions before the December 2, 2016 deadline
in the Scheduling Order for completing discovery. As noted, while the Scheduling Order permits
parties to agree to discovery extensions, it expressly states that any such extension must not affect
the trial, dispositive motions deadline, or pretrial submissions date, and the “court will not entertain
any discovery dispute that is a result of an agreed extension.” Scheduling Order ¶ 6. The parties
were aware of this when they filed their Notice of Extension of Discovery Cut-off on November 1,
2016, setting forth their agreement to extend the discovery period to March 13, 2017, as their Notice
states that their agreement was made “[i]n accordance with paragraph 6 of the Scheduling Order.”
Notice (Doc. 21). Le’s Motion for Continuance, however, seeks to extend his summary judgment
response deadline and the trial in light of the parties’ discovery agreement in direct contravention
of the Scheduling Order’s prohibition against such extensions. Le’s opposed motion for clarification
regarding the discovery deadline also asks the court to resolve a discovery dispute between the
parties that has arisen because of their discovery agreement, even though the Scheduling Order states
that the court will not entertain such disputes.
With respect to his request to continue his summary judgment response deadline until after
resolution of his Motion to Compel, the court determines that Plaintiff was diligent in filing his
Motion to Compel before the December 9, 2016 deadline in the Scheduling Order for doing so.
Plaintiff has also identified some discovery that he contends is necessary to respond to Defendants’

Memorandum Opinion and Order – Page 30

summary judgment motion; however, he has not demonstrated how this discovery will raise a
genuine dispute of material fact in response to the summary judgment grounds raised by Defendants.
He, instead, asserts in conclusory fashion that the discovery sought in his Motion to Compel is
“germane” or “relevant” to his claims that are the subject of Defendants’ summary judgment motion.
Plaintiff contends that he needs information regarding “[his] reports to [Exeter’s] Board of
Directors on FLSA issues” because Defendants have moved for summary judgment on all of his
employment law claims, which are based on his allegation that he was fired because of matters he
reported to Exeter. Pl.’s Mot. for Continuance 6. Le also contends that he needs access to his work
computer and e-mails and other documents to establish the reasons for Exeter’s decision to terminate
the employment of other employees that he contends he opposed. The court disagrees.
To file this action, Le had to have known the bases for his employment law claims, that is,
his belief that he was fired for opposing unlawful employment practices by Exeter. With respect to
each of Le’s employment law retaliation claims, Defendants moved for summary judgment on the
ground that Le cannot establish a prima facie case of retaliation because he cannot show that he
engaged in protected activity and that a causal connection exists between the protected activity and
discharge, the adverse employment action. To show that he engaged in protected activity, Le need
not demonstrate that the conduct he opposed rose to the level of a violation of one of the
employment law statutes at issue; rather, he must show he reasonably believed or perceived that
Defendants’ conduct violated the employment statutes at issue. See E.E.O.C. v. Rite Way Serv., Inc.,
819 F.3d 235, 242-44 (5th Cir. 2016) (discussing reasonable belief standard for Title VII retaliation
cases). Le should not need discovery to come forward with evidence in an affidavit, declaration, or
otherwise to show why he reasonably believed that Defendants’ conduct violated Title VII, the

Memorandum Opinion and Order – Page 31

FMLA, FLSA, ADA, or ADEA; nor should he need discovery to establish a causal connection, for
example, based on the temporal proximity between his opposition and termination. Thus, whether
Plaintiff’s work computer or e-mails will substantiate his claims that Defendants’ conduct in firing
certain employees violated various employment statutes is of no moment. Further, the issue of
whether, as argued by Defendants, the “manager rule” bars his employment law claims is a legal
issue for the court to decide.
Finally, as noted, Plaintiff contends that additional time is needed to respond to Defendants’
summary judgment motion regarding this contract claim because Defendants have not produced the
Duff & Phelps reports of the PIUs, and “[he] is asking for such documentation in connection with
[his] Motion to Compel,” and that “[s]uch documentation is relevant to whether or not Defendant
Enzo violated its contract with [him].” Id. at 7. Whether Defendants should be required to produce
the Duff & Phelps reports appears to have been raised by Plaintiff the first time during the January
31, 2017 hearing on his Motion to Compel based on information obtained during the December 7,
2017 deposition of Brad Nall (“Nall”), Exeter’s Senior Vice President of Finance. See Pl.’s Mot.
for Continuance 7; see also Jan. 31, 2017 Hearing Tr. 11, 14, 41-56, 89. Whether the Duff & Phelps
reports were responsive to any of Plaintiff’s discovery requests was hotly disputed during the hearing
on Plaintiff’s Motion to Compel. Plaintiff took the position that the Duff & Phelps reports were
responsive to his Interrogatory No. 7 and Requests for Production Nos. 45, 47, and 48. Id. at 14, 42,
43, 54. The magistrate judge ultimately agreed that the Duff & Phelps reports were relevant and fell
within Plaintiff’s Requests for Production Nos. 45, 47, and 48 and ordered Defendants to produce
them by March 3, 2017.

Memorandum Opinion and Order – Page 32

Because the dispute over the Duff & Phelps reports first came to light during a December 7,
2016 deposition, after the December 2, 2016 discovery deadline, and was not brought to the court’s
attention until the January 31, 2017 hearing on Plaintiff’s Motion to Compel, long after Le’s
response to Defendants’ summary judgment motion was due on January 6, 2017, the court concludes
that the discovery dispute regarding these reports falls outside of the discovery deadline in the
Scheduling Order. Additionally, Plaintiff’s request for a continuance based on this discovery would
require the court to decide a dispute that arose as a result of the parties’ discovery agreement. Thus,
while Plaintiff may have exercised diligence in serving Defendants with written discovery requests
and seeking to compel production of documents pertaining to his discovery requests, his request to
continue his summary judgment response deadline based on a discovery dispute regarding the Duff
& Phelps reports that arose after the court-ordered discovery deadline as a result of the parties’
discovery agreement violates the court’s prohibition against such continuances and court intervention
in resolving such disputes.
Moreover, Plaintiff’s explanation that the Duff & Phelps reports will create a genuine dispute
of material fact in response to Defendants’ motion for summary judgment on his contract claim
based on the PIUs valuation is inadequate. Plaintiff contends that the Duff & Phelps reports are
proof that Enzo violated the PIU Agreement because Enzo’s $0 valuation of the PIUs contradicts the
value of PIUs in the Duff & Phelps reports. For support that the valuations differ, Plaintiff relies on
pages 21 through 27 of Nall’s December 7, 2016 deposition testimony. The two pages of Nall’s
deposition testimony attached to Plaintiff’s Motion for Continuance, however, do not address the
Duff & Phelps reports. They only include Nall’s testimony regarding his job title. See Pl.’s Mot. for
Continuance App., Ex. C. The appendices to Plaintiff’s responses to Defendants’ summary

Memorandum Opinion and Order – Page 33

judgment and expert motions include pages 26 through 41 of Nall’s deposition testimony. After
reviewing this portion of Nall’s testimony, it is unclear why Plaintiff believes that the Duff & Phelps
reports would create a genuine dispute of material fact that Enzo violated the parties’ PIU Agreement
by valuing the Plaintiff’s PIUs at $0.
Plaintiff acknowledges that his contract claim is based on his contention that Enzo violated
the terms of the PIU Agreement by failing to value his PIUs in accordance with the PIU Agreement.
According to that express terms of that agreement, Le was issued Time-Based PIUs and IRR-Based
PIUs. Pl.’s Summ. J. Resp. App. 56 (Doc. 33-2). Section 4.3 of the agreement states that, within ten
days of a “Call Notice” or “Put Notice,” Enzo shall provide management with “its good faith
calculation of [the] fair market value of the [PIUs] to be purchased.” Id. at 61. Section 4.3 further
provides that “[f]air market value shall be determined on a going concern basis as if [Enzo] and its
Subsidiaries were sold as an entirety in an arm’ s length transaction with neither the buyer nor the
seller under a compulsion to buy or sell, and distribution were made on such sale pursuant to the
distribution provisions of the LLC Agreement.” Id. In a letter dated March 10, 2015, Anderson, as
Enzo’s President and Chief Executive Officer (“CEO”), provided notice that Enzo was exercising
its Call Option under section 4.3 of the PIU Agreement dated May 27, 2014, and valued Le’s earned
PIUs at $0. Anderson indicated that Le had forfeited his unearned PIUs under section 4.5 of the
agreement.
Nall did not testify regarding the value under the PIU Agreement of Le’s PIUs as of March
10, 2015. Nall testified in very general terms regarding the perceived value of his own PIUs and
stated more than once that he did not believe his own PIUs had any value because the company was
losing money, he anticipated business to be “tough” in the next few years, and any value for his PIUs

Memorandum Opinion and Order – Page 34

would be determined after Blackstone “cashe[d] out.” Pl.’s Summ. J. App. 115. Nall stated that
Duff & Phelps performed an annual valuation of the company’s PIUs as part of the company’s
audited financial statements but did not say that the method for valuing the PIUs for audited financial
statements purposes was the same as that used to value PIUs under the PIU Agreement. Evans,
instead, testified the valuation done by Duff & Phelps was for “GAAP”10 or “financial purposes” and
clarified that this involved a different type of valuation than that used to calculate the March 10,
2015 fair market value of the PIUs called under section 4.3. Pl.’s Mot. for Continuance App., Ex.
A. Evans also testified that he believed that the fair market value of the units called on that date
would have been zero. Id. Moreover, Nall could not recall if a positive value was ever assigned to
the PIUs by Duff & Phelps and said, if any value was assigned, “it was small.” Id. at 116. Nall
never indicated when a positive, albeit small, value may have been assigned in the past to the PIUs
by Duff & Phelps, and there was no discussion regarding Enzo’s March 10, 2015 valuation. Thus,
in sum, Plaintiff has not shown how a valuation of Enzo’s PIUs on a date other than March 10, 2015
for GAAP or financial purposes by Duff & Phelps using a valuation method different from the fair
market valuation in the PIU Agreement could create a genuine dispute of material fact that Enzo
breached the parties’ PIU Agreement in valuing Le’s earned PIUs as of March 20, 2015. For all of
these reasons, Le has not satisfied his burden under Rule 56(d) and Rule 16(b) and is not entitled to
the requested continuance of his summary judgment response deadline or the discovery deadline.
10

Generally accepted accounting principles or “GAAP” are “principles recognized by the accounting profession
as the conventions, rules, and procedures necessary to define accepted accounting practice at a particular time.”
Markman v. Whole Foods Mkt., Inc., 1:15-CV-681-LY, 2016 WL 10567194, at *2 (W.D. Tex. Aug. 19, 2016). They
are “[t]he measurement and disclosure principles that apply to all financial statements (except those prepared on another
comprehensive basis of accounting). GAAP governs the recognition and measurement of transactions and dictates the
amounts and other information that must be presented in financial statements.” KLLM Transp. Servs., LLC v. JBS
Carriers, Inc., 3:12-CV-116-HTW-LRA, 2017 WL 6614813, at *4 (S.D. Miss. Dec. 22, 2017) (citing Steven Lindsey
& Marilyn Rutledge, PPC’S GUIDE TO GAAP (12th ed. 2014)).

Memorandum Opinion and Order – Page 35

Further, even if the court were to grant Le a continuance and consider the supplemental evidence
offered by him in the form of the three Duff & Phelps reports, the court would conclude that they
are insufficient to create a genuine dispute of material fact for similar reasons, as these reports did
not value Le’s PIUs as of March 10, 2015; the reports indicate that Duff & Phelps’s analyses were
conducted “solely for financial reporting purposes, in connection with the granting of the Profit
Interest Units for stock based compensation, on a minority, non-marketable basis”; the PIU valuation
in these reports is based on “Fair Value,” not “fair market value” or “FMV.” Additionally, the
valuations in these reports are entirely hypothetical in nature in that they are based on a “Monte
Carlo simulation” of “1,000,000 paths, which represents the possible future values of the equity of
the Company.” See Pl.’s Supp. Summ. J. Resp. App. 8, 66 (Doc. 68-1).
Accordingly, for all of these reasons, Plaintiff has failed to satisfy the requirements for a
continuance of his summary judgment response deadline under Rule 56(d) and his motion for
extension in this regard will be denied.
3.

Requests to Continue Deadline to Respond to Defendants’ Motion to
Exclude Expert Testimony and Extend Plaintiff’s Expert Deadline

Plaintiff seeks a continuance of his deadline to respond to Defendants’ Motion to Exclude
essentially for the same reasons he requested a continuance of his summary judgment response
deadline under Rule 56(d). The only difference is that he contends that he should be granted a
continuance, not only so he can get a ruling on his Motion to Compel and obtain production of the
Duff & Phelps reports before responding to the Motion to Exclude, but also to supplement his
expert’s report with a calculation of the value of his PIUs based on evidence that he contends
Defendants have wrongfully withheld. Even setting aside that the discovery dispute regarding the

Memorandum Opinion and Order – Page 36

Duff & Phelps reports arose after the discovery deadline in the Scheduling Order, consideration of
Rule 16(b)’s factors does not weigh in favor of granting Plaintiff a continuance to supplement his
expert report to include a new damages calculation for PIUs.
Le attempts to blame the shortcomings in his expert’s PIU damages calculation on
Defendants’ failure to produce requested documents. This, however, does not explain his delay in
seeking a continuance to supplement or amend his expert report. By July 2016, when Defendants
responded and objected to Plaintiff’s written discovery requests, Le was aware that Defendants
would not be providing certain information or producing documents he believed was responsive to
his discovery requests. Le filed his Motion to Compel on August 24, 2016, shortly before his expert
disclosure deadline. This is not to say Le was not diligent in conducting and seeking to compel
enforcement of these written discovery requests. Rather, because Le contends that he is entitled to
a continuance of his expert deadline in light of his Motion to Compel documents and information
not produced by Defendants, this shows that Le knew or should have known before his September
5, 2016 deadline to designate experts and provide expert reports under Rule 26 that he did not have
all the information his expert needed to calculate the fair market value of his PIUs in accordance
with the PIU Agreement. Le, nevertheless, waited approximately four months, until after expiration
of the September 6, 2016 expert deadline in the scheduling order to seek a continuance, and, he did
so only after Defendants filed their Motion to Exclude and pointed out the deficiencies in his
expert’s PIU damages calculation and methodology that Le sought a continuance to supplement or
amend his expert’s report.
More telling, though, is the complete absence in his expert’s report of any discussion
regarding the appropriate method for calculating the fair market value of PIUs in accordance with

Memorandum Opinion and Order – Page 37

the PIU Agreement. Weisheit’s report indicates that he considered the PIU Agreement in preparing
his report and calculating Le’s damages and acknowledges that the PIUs are subject to vesting,
performance, terms, and other conditions in the PIU Agreement. Without explanation, however,
Weisheit ignored the method in the PIU Agreement for calculating the fair market value of Le’s PIUs
and, instead, used the projected values that Exeter provided Le when he was recruited to calculate
the “prospective” value of Le’s PIUs. See Pl.’s Resp. App. to Mot. to Exclude 14 (Doc. 34-1).
Weisheit states in conclusory fashion in his original report that “[a]dditional information is needed
and has been requested of Exeter in order to calculate the actual PIU Mr. Le should have received,”
and “[a]dditional facts and data are needed to be produced by the Defendants in order to complete
my analysis of Mr. Le’s losses,” but he does not identify the type of data or information he would
need to calculate the PIUs in accordance with the PIU Agreement or another method. Thus, while
Le contends that Defendants are to blame for the shortfalls in his expert’s PIU damages calculation,
there is no indication from Weisheit’s original expert report that Weisheit ever contemplated a need
to calculate the value of Le’s PIUs using any information other than the projected estimated value
that Exeter provided to Le in 2013 during his recruitment.
Likewise, in his First Amended and Supplemental Expert Report, dated January 6, 2017,
Weisheit continues to calculate the prospective or “promised” value of Le’s PIUs using the projected
PIU value provided to Le in 2013 rather than the fair market value on March 10, 2015, as required
by the PIU Agreement. Id. at 38, 42. Although Le had known about the Duff & Phelps reports for
approximately one month when the First Amended and Supplemental Expert Report was prepared,
Weisheit continues to conclude, without explanation or reference to the method in the PIU
Agreement for calculating the fair market value of Le’s PIUs, that the “Profit Interest Example” that

Memorandum Opinion and Order – Page 38

Exeter provided to Le before he was hired is a “reasonable approximation of the actual PIU Mr. Le
should have received.” Id. at 43. He also continues to state, albeit in vague terms and without
explanation, that “[a]dditional facts and data are needed to be produced by the Defendants in order
to complete my analysis of Mr. Le’s losses, specifically as they relate to the Enzo Parent Equity
Loss,” and [a]dditional information is needed and has been requested of Exeter in order to calculate
the actual PIU Mr. Le should have received.” Id. at 38, 42, 43.
Finally, in a Second Amended and Supplemental Expert Report dated December 15, 2017,
Weisheit again notes that Le’s PIUs are subject to vesting, performance, terms, and other conditions
in the PIU Agreement. Pl.’s Supp. Resp. App. to Motion to Exclude 4 (Doc. 78-1). Based on a April
28, 2015 Duff & Phelps report that included an “Estimation of the Fair Value of Certain [PIUs] of
Enzo Parent, LLC as of December 31, 2014,” Weisheit concludes for the first time, without
explanation, that, although Enzo valued Le’s PIUs at $0, the value of Le’s PIUs when he was fired
in February 2015 was between “$383,904 (100% vested) and $38,858 (20% vested).” Id. at 3, 7.
Weisheit fails to distinguish between fair value and fair market value or explain why he believes it
is appropriate to use a “Fair Value” estimate of Enzo’s PIUs as of December 31, 2014, to calculate
the fair market value of Le’s PIUs as of the March 10, 2015 call date as required by section 4.3 of
the PIU Agreement and states only in conclusory fashion that the “Estimation of the Fair Value” as
of December 31, 2014 “can be relied on to reasonably approximate the value of Mr. Le’s PIUs as
of the date of his termination [on February 23, 2015].”11 Id. at 9. Without explanation, Weisheit

11

Le similarly conflates the estimated “Fair Value” analysis performed by Duff & Phelps for GAAP financial
purposes with the “fair market value” in the PIU Agreement and makes no attempt to discern between the two or explain
why one is an appropriate substitute for the other in calculating the value of his PIUs at the time of the PIU call date as
required by the PIU Agreement. See Pl.’s Supp. Summ. J. Resp. ¶¶ 9, 12, 13 (Doc. 68).

Memorandum Opinion and Order – Page 39

continues to maintain that the PIU “[e]xample” that Exeter provided to Le in 2013 is also a
“reasonable approximation of the actual PIU Mr. Le should have received,” and that Le is not only
entitled to damages of $5,013,517 based on an estimated future PIU valuation example that Exeter
provided to Le in 2013, but also damages totaling $383,904 and $38,859 for the actual value of Le’s
PIUs as of the date of his termination. See id. at 8. As with his other reports, Weisheit includes the
following vague statement: “Additional facts and data are needed to be produced by the Defendants
in order to complete my analysis of Mr. Le’s losses, specifically as they relate to the Profits Interest
Units Loss.” Id.
These and Weisheit’s other vague and conclusory statements regarding the need for
additional information or facts do not adequately explain Le’s failure to meet the expert deadline in
the Scheduling Order; nor has Le explained why it took approximately nine months after the deadline
for Defendants to produce the Duff & Phelps reports for Weisheit to prepare his Second Amended
and Supplemental Expert Report. Le, instead, relies on his same argument that a continuance is
warranted to permit his expert’s December 15, 2017 Second Amended and Supplemental report
because the magistrate judge ruled “overwhelmingly” in his favor on his Motion to Compel and
ordered Defendants to produce the reports by March 3, 2017. See Pl.’s Supp. Resp. to Mot. to
Exclude 2 (Doc. 78). The lack of explanation or inadequate explanation provided by Le for failing
to meet the expert deadlines in the Scheduling Order and delaying for a long period of time before
seeking a continuance and doing so only after Defendants pointed out the flaws in their Motion to
Exclude weigh against granting his request to continue his deadline to respond to Defendants’
Motion to Exclude or continue the expert deadlines in the Scheduling Order to allow him to amend
or supplement his original expert report.

Memorandum Opinion and Order – Page 40

Although the value of his PIUs constitutes one of the components of his damages calculation,
Le acknowledges that it is not the only component and maintains that, even if Weisheit’s opinion
regarding the PIU valuation is stricken, the remaining damages calculated by him survive because
Defendants only moved to strike Weisheit’s opinion regarding PIU damages and Category I or
Lennox damages that he no longer seeks to recover. Because Le’s damages model has never been
limited to PIU damages, and his expert’s new method of calculating the actual value of his PIUs
using the Duff & Phelps report appears to simply provide an additional means of calculating the PIU
value that, if accepted, would permit Le to recover approximately $400,000 in addition to the
approximate $5 million previously calculated by his expert using a projected, estimated PIU damages
model, the court determines that the new testimony is not so critical to support amending the
Scheduling Order at this late juncture.
Moreover, the importance of the new proposed testimony by Plaintiff’s expert does not
outweigh and “cannot singularly override the enforcement of local rules and scheduling orders,” and
any claimed importance underscores the need for Le to have complied with the court’s deadlines or
to have moved for a continuance before expiration of the discovery and expert deadlines if he
believed that the deadlines could not reasonably have been met despite diligence on his part.
Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004) (internal quotation
marks omitted); S & W Enters., L.L.C. v. Southwest Bank of Alabama, 315 F.3d 533, 535 (5th Cir.
2003) (citation omitted); Geiserman v. MacDonald, 893 F.2d 787, 792 (5th Cir. 1990). Additionally,
for the reasons herein explained, even if the court were to consider Weisheit’s most recent amended
and supplemental report, the court agrees with Defendants that his expert opinion regarding Le’s PIU

Memorandum Opinion and Order – Page 41

damages is inadmissible under Rule 702. Thus, any claimed importance regarding his amended and
supplemental report to Plaintiff’s case does not support the requested continuance.
Further, the court determines that Defendants not only would be prejudiced but have been
materially prejudiced by Plaintiff’s dilatory conduct in seeking a continuance and having to respond
to the numerous unauthorized supplemental submissions that were filed in violation of this district’s
Local Civil Rules without first obtaining leave of court have unnecessarily, as this delayed the
resolution of the pending motions and trial of this case and likely caused Defendants to incur
additional expense. It would also be patently unfair to allow Plaintiff to supplement and amend his
expert report this late in the case without: (1) allowing Defendants to amend their expert designations
and provide an expert report to address the matters in Plaintiff’s amended and supplemental expert
reports; (2) giving Defendants an opportunity to depose Plaintiff’s expert regarding his most recent
opinion; and (3) permitting Defendants to respond to Plaintiff’s December 15, 2017 supplemental
submission or surreply (Doc. 78) to Defendants’ Motion to Exclude and any other supplemental
submissions by Plaintiff that address Weisheit’s amended and supplemental reports. A further
continuance of the proceedings in this case to cure any such prejudice would not be appropriate. The
court had no choice but to continue the trial and the parties’ pretrial deadlines in light of the morass
created by Plaintiff’s numerous unauthorized supplemental filings and requests for the court to
decide discovery disputes stemming from the parties’ discovery agreement in violation of the
Scheduling Order. Ordering another continuance would only serve to reward Plaintiff for his dilatory
conduct and failure to comply with court-ordered deadlines and this district’s Local Civil Rules and
result in additional delay and expense. Regardless, it is not incumbent on the court to award litigants
for failing to develop their cases. See Reliance Ins. Co. v. Louisiana Land and Exploration Co., 110

Memorandum Opinion and Order – Page 42

F.3d 253, 258 (5th Cir. 1997) (“affirming denial of request to modify scheduling order to cure
deficiencies in expert’s report and noting that “[d]istrict judges have the power to control their
dockets by refusing to give ineffective litigants a second chance to develop their case.”) (citing
Turnage v. General Electric Co., 953 F.2d 206, 208-09 (5th Cir. 1992)).
For all of these reasons, the court concludes that Plaintiff has not established good cause for
failing to meet his September 6, 2016 expert deadline. The court will, therefore, deny Plaintiff’s
Motion for Continuance with respect to his request to allow his damages expert to supplement or
amend his expert report after the September 6, 2016 expert deadline in the Scheduling Order,
whether for purposes of amending or supplementing Weisheit’s analysis regarding his PIU damages
or his lost wages. For the same reason, the court will deny his request to extend his deadline to
respond to Defendants’ Motion to Exclude until after supplementing or amending his expert report.
IV.

Plaintiff’s Motion for Clarification Regarding Discovery Deadline and Alternative
Request to Continue Discovery Deadline (Doc. 57)
Le’s Motion for Clarification on Discovery Deadline, or in the Alternative, Motion for

Extension of the Same was filed March 13, 2017. Le seeks clarification regarding the discovery
deadline in light of the court’s March 2, 2017 orders: (1) staying the deadlines set by the magistrate
judge pending resolution of Defendants’ objections to the order granting in part Plaintiff’s Motion
to Compel; and (2) staying all unexpired deadlines in the Scheduling Order and vacating the trial.
Specifically, Le requests that the court enter an order “clarify[ing] that the [court’s March 2, 2017]
order stayed the unexpired discovery deadline” of March 13, 2017, agreed to by the parties. Pl.’s
Mot. Clarification 3. Alternatively, Le requests an extension of the discovery deadline, pursuant to
Federal Rule of Civil Procedure 6(b)(1), “until 21-days prior to the new trial setting.” Id. at 4.

Memorandum Opinion and Order – Page 43

Plaintiff asserts that the requested continuance is reasonable in light of the parties’ discovery
agreement to continue discovery until March 13, 2017, twenty-one days before the April 2017 trial
setting vacated by the court, and notes that his requested continuance will not require the court to
continue the trial, as the court has already vacated the original April 2017 trial setting. Plaintiff
contends that his alternative request for a continuance is timely as it was made “before expiration
of the current [agreed-upon March 13, 2017 discovery] deadline and not as a result of any neglect
or delay tactic, as [he] has diligently worked to obtain the relevant discovery.” Id. at 5. Plaintiff
explains that he “seeks to continue with discovery during the pendency of the stay and until a
reasonable time prior to trial” to depose: (1) Montalbano, Exeter’s former Chief of Staff; (2)
unidentified “Duff & Phelps auditors”; and (3) Enzo’s Chairman of the Board, Martin Brand
(“Brand”). Id. at 6. Plaintiff maintains that Defendants will not be prejudiced by the requested
extension because all unexpired deadlines in the Scheduling Order are stayed, and Defendants should
not be allowed to benefit from their own discovery abuse.
The court will grant Plaintiff’s request for clarification, but only to the extent that it clarifies
that its March 2, 2017 orders stayed Defendants’ deadline to comply with the deadline(s) set by the
magistrate judge pending resolution of their objections to the order granting in part Plaintiff’s
Motion to Compel; stayed all unexpired deadlines in the Scheduling Order; and vacated the trial and
pretrial conference. The Scheduling Order deadline for completion of discovery expired December
2, 2016, not March 13, 2017. Thus, the court’s March 2, 2017 orders staying unexpired deadlines
in the Scheduling Order did not stay the December 2, 2016 discovery deadline, which expired three
months before the court’s March 2, 2017 orders were entered.

Memorandum Opinion and Order – Page 44

While the parties extended the December 2, 2016 deadline in the Scheduling Order for
completion of discovery by agreement to March 13, 2017, this agreed deadline is not a deadline that
was imposed by the court either in the original Scheduling Order or any amended order. Because
the March 13, 2017 deadline came about pursuant to the parties’ discovery agreement and is not a
deadline imposed by the court, it is not a Scheduling Order deadline. That the Scheduling Order
allows the parties to extend discovery by agreement under certain conditions does not make any
discovery deadline that is extended by agreement of the parties a Scheduling Order deadline, which
can only be ordered, enforced, and modified by the court upon leave of court pursuant to Federal
Rules of Civil Procedure 15(a) and 16(b).
Moreover, paragraph six of the Scheduling Order makes clear that the court will not entertain
any disputes that arise as a result of an agreement by the parties to extend discovery past the deadline
set by the court for completing discovery. Plaintiff, nevertheless, requests, over Defendants’
opposition, that the court provide him with an additional open-ended extension of discovery until
twenty-one days before any new trial setting in light of the parties’ discovery agreement to extend
discovery to March 13, 2017, twenty-one days before the prior trial setting. In other words, in
violation of paragraph six of the Scheduling Order, Plaintiff is asking the court, based on the parties’
agreement to extend discovery, to resolve a discovery dispute in his favor to allow him to conduct
additional depositions past the parties’ agreed March 13, 2017 discovery deadline.
While paragraph six of the Scheduling Order allows parties to extend discovery by
agreement, it prohibits discovery agreements that will delay dispositive motions, the filing of pretrial
materials, or the trial setting. Extensions of discovery or modifications to the Scheduling Order that
will delay the filing of dispositive motions, necessitate extension of a response or reply to a

Memorandum Opinion and Order – Page 45

dispositive motion, or reduce the time in the Scheduling Order set aside for the court to rule on
dispositive motions before the trial setting cannot be done by agreement. Rather, such extensions
and modifications are governed by paragraph 13 of the Scheduling Order12 and Federal Rules of
Civil Procedure 15(a) and 16(b), and any request for an extension of this kind or modification of the
Scheduling Order under paragraph 13 must be made by motion, not agreement.
The parties’ November 1, 2016 Notice to the court assured that their discovery agreement
was made in accordance with paragraph 6 of the Scheduling Order, yet Plaintiff’s requests to
continue his summary judgment response deadline, his expert deadline, and the trial on two separate
occasions to conduct further discovery in accordance with the parties’ discovery agreement violate
the prohibition in paragraph six of the Scheduling Order against such extensions and makes the court
question whether, at the time of entering the agreement, Plaintiff even intended to comply with
paragraph six of the Scheduling Order.

12

Paragraph 13 of the Scheduling Order provides:

Modification of Scheduling Order: A motion for an extension of any deadline set herein must be
made prior to its expiration. This order shall control the disposition of this case unless it is modified
by the court upon a showing of good cause and by leave of court. Fed. R. Civ. P. 16(b). Any request
that the trial date of this case be modified must be made (I) in writing to the court, (ii) before the
deadline for completion of discovery, and (iii) in accordance with the United States District Court
for the Northern District of Texas Civil Justice Expense and Delay Reduction Plan and Local
Rule 40.1 (motions for continuance must be signed by the party as well as by the attorney of record).
The court requires that discovery be completed at least four months before the trial setting and that
any dispositive motions be filed at least three and one-half months before the trial setting. Any
proposed modifications to the deadlines for discovery or the filing of dispositive motions that would
conflict with these requirements must include a request that the trial setting be revised as well.
Likewise, if a party seeks to extend the time to file a response or reply related to a dispositive motion,
such party must also include a request to reset the trial. These requirements are necessary to allow
the court sufficient time to rule on the dispositive motion prior to the date pretrial submissions are due.
When a revised trial setting is requested, based on the status of the court’s docket, it may be necessary
to schedule trial a month or so later than that requested. By requesting a revised trial setting, the parties
acknowledge and accept this possibility. Further, any request to extend the deadline for filing a motion,
response, or reply for more than seven days involving a summary judgment, or requests used in
combination that total more than one week, will result in a continuance of the trial date.

Memorandum Opinion and Order – Page 46

Specifically, the deadlines for filing dispositive motions and motions challenging experts was
December 16, 2016. The parties’ agreement to extend discovery to March 13, 2017, was reached
on November 1, 2016, approximately six weeks before the dispositive motion deadline. At this time,
Plaintiff knew that the Motion to Compel he filed on August 26, 2016, had been ripe for only six
weeks and had not been ruled on yet. Thus, Plaintiff knew or should have known by November 1,
2016, whether his need or desire to conduct discovery, whether prior to or after the December 2,
2016 court-ordered discovery deadline, would affect his ability to respond to a dispositive motion
or motion to exclude his expert, and he should not have waited until the last possible minute on
January 6, 2017, the date his responses to Defendants’ summary judgment and expert motions were
due, to file his requests for continuance using the court’s emergency ECF e-mail. See Docket Sheet
Entries 31-35.
The court’s decision to vacate the trial and pretrial deadlines on March 2, 2017, does not
absolve Plaintiff from violating the court’s Scheduling Order because it was his conduct in seeking
last minute extensions and filing supplemental materials in violation of the Scheduling Order and
this district’s Local Civil Rules that delayed and prevented the court from ruling on Defendants’
summary judgment and expert motions in the timeframe contemplated in the Scheduling Order
before the trial setting and pretrial deadlines. It was for this same reason that the court ultimately
entered its order on April 18, 2018, admonishing Plaintiff and directing the parties to not file any
further motions, briefs, documents, or materials without first obtaining leave of court until the court
ruled on the pending motions.
Plaintiff’s alternative request to continue discovery also fails for another reason. Federal
Rule of Civil Procedure 16(b) governs the requested continuance, not Rule 6(b) as argued by

Memorandum Opinion and Order – Page 47

Plaintiff. Rule 6(b) generally applies to extensions of filing deadlines, not requests for continuance
filed after expiration of a Scheduling Order deadline that will necessitate a modification of the
scheduling order deadline. Plaintiff’s request to continue discovery falls under Rule 16(b) because
it was filed approximately three and one-half months after the December 2, 2016 deadline in the
Scheduling Order for completing discovery expired. That the motion was filed before expiration of
the parties’ agreed-upon March 13, 2017 discovery deadline is irrelevant and does not relieve
Plaintiff from establishing good cause under Rule 16(b) to revive and continue the December 2, 2016
discovery deadline for purposes of taking additional depositions.
Plaintiff acknowledges that he waited until January 4, 2017, before noticing the deposition
of Montalbano for the first time to take place on January 16, 2017, more than one month after
expiration of the December 2, 2016 discovery deadline in the Scheduling Order. Plaintiff asserts that
he has made a number of attempts to subpoena Montalbano to appear for a deposition on this and
subsequent dates without luck. Plaintiff, however, provides no explanation as to why he could not
have deposed Montalbano before expiration of the December 2, 2016 discovery deadline and
acknowledges that he did not attempt to depose her before this time. He has, therefore, failed to
establish good cause by showing that the December 2, 2016 discovery deadline reasonably could not
have been met despite the exercise of diligence, and he is not entitled to a continuance for purposes
of deposing Montalbano. The court notes that Plaintiff also fails to explain why he needs to depose
Montalbano. He, instead, simply asserts in conclusory fashion, as before, that this and the other
depositions he seeks to take are “relevant.” Pl.’s Mot. Clarification 1.
Plaintiff also asserts that, in light of Defendants’ production of the Duff & Phelps reports on
March 3, 2017, he “would like to take the oral depositions” of Brand and unnamed “Duff & Phelps

Memorandum Opinion and Order – Page 48

auditors, now that [he] finally knows the identi[t]y of those individuals.” Id. at 6. Plaintiff contends
that he seeks unspecified testimony related to the three Duff & Phelps reports because he has alleged
a breach of contract claim against Enzo for breaching the PIU Agreement in undervaluing his earned
PIUs. Plaintiff asserts that, in light of the Duff & Phelps report(s), he would also like also to depose
Brand regarding Enzo’s or the Board of Director’s decision to assign a $0 fair market value to his
earned PIUs. Plaintiff contends that, in correspondence between February 24, 2017, and March 6,
2017, he requested to depose Brand within the agreed-upon extended discovery period, but
Defendants refused to cooperate in scheduling his deposition, in part, because he is “a high-level
Blackstone employee who resides in NY.”13 Id. at 6. In addition, Plaintiff maintains that, in light
of Defendants’ “recent document production [that included the Duff & Phelps reports], as well as
additional documents that are expected in the future, [he] may need additional depositions.” Id.
Plaintiff implies that Defendants are to blame for his failure to exercise diligence in seeking
to depose Montalbano, Brand, and others, but Le does not explain why he could not have taken the
depositions he now seeks to take or other depositions before the court-ordered discovery deadline
and before his Motion to Compel was decided. As noted, it is entirely unclear from Plaintiff’s
current motion or Plaintiff’s prior Motion for Continuance why he wants to depose Montalbano.

13

In response to Plaintiff’s e-mail request to depose Brand, Defendants’ counsel responded as follows on March

6, 2016:
We have reached out to him, but do not have any dates. As you may know, he is a high-level
Blackstone employee who resides in NY. With [agreed-upon] discovery closing in a week (we cannot
agree to extend the deadline), the last-minute request, the issue [of] whether Exeter can assert control
over him [as a nonparty], and the problems with any party resolving any dispute that may arise,
numerous issues exist. Also, you deposed both former [Exeter] CEOs who, if I recall correctly, were
on board at relevant times, so it is unclear how a high-level person must be deposed at the last minute.
Regardless, I will be in touch if I hear back.
Pl.’s Mot. Clarification App. 139.

Memorandum Opinion and Order – Page 49

There is also no indication that the timing of Montalbano’s deposition is in any way tied to Plaintiff’s
Motion to Compel or Defendants’ discovery responses and production of documents. It is true that,
on January 31, 2017, Defendants were ordered to produce the Duff & Phelps reports by March 3,
2017. Plaintiff, however, first learned about the Duff & Phelps reports and obtained other
information in deposing witnesses such as Nall and former Exeter CEO Evans approximately two
months before Defendants were ordered to produce certain documents and information as a result
of the Motion to Compel. According to the correspondence relied on by Plaintiff, he also deposed
another former CEO of Exeter. This undermines any contention by Plaintiff that he could not depose
the persons he now seeks to depose or other witnesses until after obtaining a ruling on his Motion
to Compel and all documents by Defendants were produced.
The court also disagrees that Defendants will not be prejudiced by the requested discovery
extension in light of the court’s stay of all unexpired deadlines in the Scheduling Order. For the
reasons already explained in connection with Plaintiff January 6, 2017 Motion for Continuance, it
was Plaintiff’s conduct in filing numerous unauthorized supplemental filings and requests for
continuance based on the parties’ discovery agreement in violation of the Scheduling Order and
Local Civil Rules that necessitated the court’s vacating the trial setting and staying the unexpired
deadlines in the Scheduling Order. Additionally, Plaintiff did not meet his burden under Rule 56(d)
of establishing that he was entitled to a continuance based on discovery that was the subject of his
Motion to Compel. Thus, Plaintiff, not Defendants, created the delays and predicament he now
faces, and Plaintiff’s contentions of discovery abuse by Defendants, no matter how often repeated,
are simply insufficient to justify the various continuances sought by him to date, whether under
Rules 56(d), 6(b), or 16(b).

Memorandum Opinion and Order – Page 50

Finally, it is unclear why Plaintiff seeks to depose Brand or others regarding the three Duff
& Phelps reports attached to his Motion for Clarification, as only one of these reports was relied on
by his expert in calculating his breach of contract damages. Regardless, as previously discussed and
herein explained in the next section dealing with Defendants’ Motion to Exclude, Le’s argument and
Weisheit’s expert opinion regarding Le’s PIU damages based on the Duff & Phelps report(s) are
fundamentally flawed, unsupported, and inadmissible. For all of these reasons, the court will deny
Plaintiff’s alternative request for an extension of the discovery deadline to depose Montalbano,
Brand, unnamed Duff & Phelps auditors, or persons who have yet to be identified by Plaintiff as
possibly possessing information relevant to his claims.
V.

Defendants’ Motion to Exclude Certain Expert Testimony (Doc. 28)
Defendants have moved to exclude certain opinions expressed by Plaintiff’s expert Weisheit

regarding the two categories of damages sought by Plaintiff. Specifically, Defendants request that
the court: “exclude any opinion testimony regarding the alleged value of certain management [PIUs]
and damages related to [Le] being terminated for cause from his former employer [Lennox]” on the
grounds that these “opinions rely on undisclosed or faulty facts and methodology, are impermissible
speculation, or are not relevant to the issues in this matter.” Defs.’ Mot. to Exclude 1.
A.

Category I or Lennox Damages

Plaintiff’s Category I or Lennox losses pertain to the damages Le allegedly sustained as a
result of Exeter fraudulently inducing him to resign his position at Lennox to join Exeter. Regarding
these damages, Weisheit expresses the opinion, based on the fraudulent inducement allegations in
Le’s Complaint, that Exeter’s conduct in inducing Le to leave his former employer Lennox to work
for Exeter caused Le to forgo or lose wages and the value of his Lennox equity portfolio. Weisheit

Memorandum Opinion and Order – Page 51

opines that Plaintiff is entitled to recover as damages these Category I losses, which he concludes
total $5,268,182. Defendants contend that Weisheit’s opinion regarding Plaintiff’s Category I losses
should be excluded, as it is based on the inaccurate assumption that Plaintiff was fraudulently
induced by Exeter to leave Lennox to join Exeter. Defendants contend that this assumption is flawed
because the evidence establishes that Le could not have been fraudulently induced to resign his
position at Lennox to join Exeter, as his employment was terminated for cause by Lennon in April
2013 before he learned of the job opportunity at Exeter in June 2013. Based on the deposition
testimony of David Moon, Plaintiff’s former supervisor at Lennox, Defendants contend that Plaintiff
testified untruthfully while under oath in his deposition that he left Lennox because he was recruited
by Exeter. Defendants further assert that Weisheit’s expert report and damages calculation, the
contents of which were verified by Le, must be excluded as it relies on Plaintiff’s false allegations
that he was fraudulently induced to resign his position at Lennox to join Exeter.
In response Plaintiff indicates, without explanation, that he is no longer seeking Category I
or Lennox damages and that Weisheit’s expert report has been amended to remove these damages:
Simultaneously with the filing of this Response, Plaintiff is serving a First
Amended and Supplemental Designation of Expert Witnesses along with a First
Amended and Supplemental Expert Report of Karl D. Weisheit. . . . Mr. Weisheit’s
Supplemental and Amended Report also removes what was referred to as “Category
I” damages in his initial report (i.e., damages based on Mr. Le’s compensation at his
prior employer, Lennox International, Inc.), as Plaintiff no longer intends to present
evidence of “Category I” damages at trial.
Pl.’s Resp. to Mot. to Exclude 3.
Defendants contend that, while Plaintiff’s response frames his election to abandon or no
longer pursue these damages as “his decision,” he ignores that he “lied in his pleadings and under
oath regarding his entitlement to any Lennox compensation,” and that “[h]is position until he was

Memorandum Opinion and Order – Page 52

caught (and in his summary judgment brief, in part) was different.” Defs.’ Reply to Mot. to Exclude
1. Defendants maintain that, before he was caught in a lie, Plaintiff took the following positions:
“Plaintiff executed the Employment Agreement and walked away from a
multi-million dollar equity plan with his prior employer.” Pl.’s 2d Am. Pet. p. 4.
Plaintiff left behind “about 2 million” in equity to work for Exeter. Pl.’s Dep.
177:24-178:5.
Plaintiff negotiated another $20,000.00 to his sign-on bonus at Exeter BECAUSE
“Lennox was on track to hit 2x its bonus, and Exeter was not. And so the sign-on
bonus was an attempt to make up the difference” and “was under what I would have
been paid had I stayed at Lennox.” Pl.’s Dep. 272:10-273:12.
“At Lennox, the opportunity to advance to a more senior position was not available
to Le due to an entrenched senior HR person holding that position, so Plaintiff
interviewed with several other companies, including Exeter.” Pl.’s Resp. Summ. J.
Br. p. 1.
“Le told Floyd that he was leaving Lennox, a publically-traded company, and going
to Exeter, a private company, which inherently contains a certain degree of ‘risk
involved.’” Id. at 4.
Defs.’ Reply to Mot. to Exclude 2. Defendants assert that, “[a]fter causing Defendants to engage in
discovery regarding the ‘Lennox money’ he [claimed to have] walked away from to join Exeter,
Plaintiff was forced to abandon the claim because Lennox had previously fired him for cause and
he did not quit his job at Lennox to go to work for Exeter” as he previously alleged and testified.
Id.
Federal Rule of Civil Procedure 11 generally prohibits parties and attorneys from filing or
making deliberately false pleadings or arguments to a court. In this regard, Rule 11(b) provides:
(b) Representations to the Court. By presenting to the court a pleading, written
motion, or other paper whether by signing, filing, submitting, or later advocating
it an attorney or unrepresented party certifies that to the best of the person’s
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances:

Memorandum Opinion and Order – Page 53

(1) it is not being presented for any improper purpose, such as to harass,
cause unnecessary delay, or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing
law or by a nonfrivolous argument for the extending, modifying, or reversing
of existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity
for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on a lack of information or
belief.
Fed. R. Civ. P. 11(b) (1)-(4). Rule 11 is intended to make lawyers “‘stop-and-think’ before . . .
making legal or factual contentions.” Jenkins v. Methodist Hosps., 478 F.3d 255, 265 (5th Cir. 2007)
(citation omitted). “‘[T]he standard under which [an] attorney is measured [under Rule 11] is an
objective, not subjective, standard of reasonableness under the circumstances. Accordingly, an
attorney’s good faith will not, by itself, protect against the imposition of Rule 11 sanctions.” Id. at
264 (internal citation omitted). The imposition of sanctions under Rule 11, however, is not limited
to attorneys, as Rule 11(c) permits courts to impose “an appropriate sanction on any attorney, law
firm, or party” whose submission to the court of any pleading, motion, or other paper violates Rule
11(b)’s requirements. Fed. R. Civ. P. 11(c)(1); see also Mercury Air Group, Inc. v. Mansour, 237
F.3d 542, 549 (5th Cir. 2001) (citing Topalian v. Ehrman, 3 F.3d 931, 935 (5th Cir. 1993), which
quoted the Advisory Committee Note to Rule 11 as follows: “If the duty imposed by the rule is
violated . . . it may be appropriate under the circumstances of the case to impose a sanction on the
client.”); and Devine v. Wal Mart Stores, Inc., 52 F. Supp. 2d 741 (S.D. Miss.1999), in which the
court imposed Rule 11 sanctions on a client who brought a lawsuit in bad faith)). An attorney may

Memorandum Opinion and Order – Page 54

also be held personally liable under 28 U.S.C. § 1927 for any “excess costs, expenses, and attorney’s
fees” resulting from his unreasonable and vexatious multiplication of the proceedings. 28 U.S.C.
§ 1927. Such a finding requires “evidence of bad faith, improper motive, or reckless disregard for
the duty owed to the court.” Mercury Air Grp. v. Mansour, 237 F.3d 542, 549 (5th Cir. 2001)
(quoting Edwards v. General Motors Corp., 153 F.3d 242, 246 (5th Cir. 1998)) (internal quotations
omitted) (given deposition testimony revealing improper purpose for suit, as well as lack of evidence
to support response to summary judgment motion, district court did not abuse its discretion in
determining that counsel unreasonably and vexatiously multiplied proceedings).
The court is particularly troubled by Plaintiff’s and his attorney’s decision to abandon his
Lennox fraud damages at this late stage of the case without attempting to respond to Defendants’
evidence that Plaintiff knowingly testified falsely and asserted factual contentions that he knew
lacked evidentiary support, and, as a result, unnecessarily delayed the proceedings in this case and
and needlessly increased the cost of the litigation. Accordingly, the court agrees with Defendants
that Plaintiff’s withdrawal of his fraudulent inducement claim based on Lennox damages after-thefact does not necessarily moot Defendants’ motion and contentions or absolve Plaintiff from the
matters asserted by Defendants. As Defendants have not sought sanctions against Le or his counsel
in the form of attorney’s fees or other sanctions, and the court has determined that Plaintiff’s
untimely supplemental and amended expert reports in which the Lennox damages were omitted were
unauthorized, the court will grant Defendants’ Motion to Exclude Weisheit’s expert testimony
regarding Plaintiff’s Category I or Lennox damages without commenting further on whether
sanctions are appropriate, except to say that the decision to disregard the Lennox fraud damages, at
a minimum, raises serious concerns.

Memorandum Opinion and Order – Page 55

B.

Category II or Exeter Equity Damages for PIUs

Based on Plaintiff’s wrongful termination and breach of contract allegations, Weisheit
concludes in his expert report, dated September 6, 2016, that Le suffered damages totaling
$6,199,344 for unpaid severance, lost wages (past and future), the unpaid value of his Enzo PIUs,
and Cobra health insurance payments. Weisheit opines that Le’s PIUs are worth $5,013,517 based
on a chart that Le received from former Exeter CEO Floyd when he was recruited to join Exeter in
June 2013.
Defendants contend that Weisheit’s testimony regarding the value of Le’s PIUs is unreliable
and should be excluded under Federal Rule of Civil Procedure 702 because: (1) Weisheit fails to
provide the factual bases or methodology for calculating the PIU value; (2) his calculation is based
on a number of hypothetical and contingent events and terms that are not defined by the chart he
relies upon, including a “‘current financial model’ (which is not defined),” a “value which ‘assumes
IRR hurdles are met’ (which are not defined or analyzed)” in the chart, and “multiple Blackstone exit
values (all of which are hypothetical and without any bases in fact)”; and (3) his valuation, which
is based on hypothetical values as of 2013, is not a proper measure of damages, as it is not based on
the method in the PIU Agreement for valuing earned PIUs, that is, that earned PIUs be valued as of
the PIU call date (in this case 2015), taking into account “a sale of Exeter in an amount that returns
significant capital to Enzo, and then distributes the remainder.” Defs.’ Mot. to Exclude Br. 8.
Defendants contend that there is no evidence of a potential sale of Exeter, and “Plaintiff’s expert
has not taken any steps (based on his report) to determine what, if anything, a third-party [might] pay
for Exeter, or even if that is possible. He has not identified a methodology for providing an opinion
on Exeter’s fair market value, or on the PIUs’ values.” Id.; Defs.’ Reply 6. Defendants, therefore,

Memorandum Opinion and Order – Page 56

contend that Weisheit’s valuation of $5,013,517 based on information provided to Le in 2013 is not
based on sound methodology, amounts to speculation, is not relevant to any legal damages, and
would not assist the trier of fact.
In responding to the Motion to Exclude,14 Plaintiff acknowledges that the PIU Agreement
governs and “spells exactly how [] Defendants must calculation the value of [his] PIUs they call,”
and that “Defendants had the right to exercise a call option on [his] awarded [earned] equity at the
time of his separation from Exeter (as they did).” Pl.’s Resp. Br. to Mot. to Exclude 5. Plaintiff,
nevertheless, contends that Defendants violated the PIU Agreement when they called or valued his
PIUs at $0 and “provid[ed] no explanation as to how that $0 value was reached.” Id. He further
asserts that “there is nothing unreasonable or unreliable” about his expert’s reliance on the “projected
PIU value [that was] presented to [him] by Exeter’s CEO during his recruitment by Exeter” because:
that is the amount that Mr. Le reasonably expected to earn by accepting Exeter’s offer
of employment. “Expectancy damages, similar to benefit-of-the-bargain recoveries,
award damages for the reasonably expected value of the contract.” Mays v. Pierce,
203 S.W.3d 564, 577-78 (Tex. App. Houston [14th Dist.] 2006, pet. denied). “The
most common interest protected in breach of contract cases is the expectation, or
benefit of the bargain, interest. Protecting this interest seeks to restore the
non-breaching party to the same economic position in which it would have been had
the contract not been breached thus giving the party the benefit of its bargain.”
Qaddura v. Indo-European Foods, Inc., 141 S.W.3d 882, 888-89 (Tex. App. Dallas
2004, pet. denied).

14

In response to the Motion to Exclude, Plaintiff includes a copy of Weisheit’s original expert report, September
6, 2016, and he relies on his First Amended and Supplemental Expert Report, dated January 6, 2017. For the reasons
explained, the court only considers Weisheit’s original report in ruling on Defendants’ Motion to Exclude and summary
judgment motion, but notes in some instances why the outcome of these motions would be the same even if the court
considered Weisheit’s amended and supplemental reports. Plaintiff also dedicates a large portion of his response to the
Motion to Exclude to his contention that Defendants should not be allowed to benefit from their alleged discovery abuse
in not producing the Duff & Phelps reports that are responsive to his discovery requests and the subject of his Motion
to Compel. The court has already addressed at length Plaintiff’s requested continuance to amend or supplement his expert
report under Rule 16(b) and, therefore, does not repeat the parties’ contentions or all of the court’s analysis regarding
this issue in addressing Defendants’ Motion to Exclude Weisheit’s testimony regarding the value of Le’s PIUs, unless
it believes that doing so is necessary to explain the court’s ruling on the Motion to Exclude.

Memorandum Opinion and Order – Page 57

Pl.’s Resp. Br. to Mot. to Exclude 8. In support of his contention that he is entitled to expectancy
damages for Exeter’s breach of the PIU Agreement, Le relies on his own deposition testimony as
follows:
As Mr. Le testified during his deposition, while in pre-employment
discussions with Exeter, Exeter’s former CEO reinforced and reiterated to Mr. Le
that the company was on track to meet certain financial targets and projected that Mr.
Le would be entitled to profits interest units worth anywhere between $2 million to
$5 million, should he accept employment with Exeter. See App. 91-93 (Deposition
of B. Le). As evidence of Exeter’s financials and PIU value, Exeter’s CEO provided
Mr. Le with a financial spreadsheet indicating the projected value of the units would
be between $2 million and $5 million. See App. 91-93; see also Motion to Exclude
App. 25. Based on these promises and representations, Mr. Le accepted employment
with Exeter and, he is entitled to present evidence of what he reasonably expected to
receive pursuant to the promises Exeter made.
Id.
Defendants reiterate that Weisheit’s valuation of Le’s PIUs fails to account for the method
in the PIU Agreement for calculating PIUs:
[T]he value of the units depends on the value and sale of the business. The analysis
requires, simply, someone to determine how much is Enzo worth, and then determine
whether that amount exceeds the Capital Contributions into Exeter. More
specifically, once the amount for which the business may be sold is determined, then
a complicated series of waterfalls occurs starting first with the return of Capital
Contributions, which are “Common Units.” Defs.’ Mot. Summ. J. App. 45, § 4.1(a)
(capital contributions); Id. at 56-57, § 4.6(a)(i) (Common Units paid first). At the
time of a sale, until the Capital Contributions are returned, no value exists for the
PIUs under the agreement. See id. at 57-58 (PIUs are third in line, to receive
Distributable Amounts, and then on a “pari passu” basis). Any calculation requires
an understanding of the market for the sale of the entire business. Until the value of
the sale of the business as an entirety far exceeds the Capital Contributions, the PIUs
are worth $0 under the agreements. Id.
Defs.’ Reply 5-6. In addition, Defendants assert that, because “Plaintiff’s breach of contract claim
on the PIU Agreement is solely for the March 10, 2015[] call[,]which valued some of his interests
at $0[,] [t]he Board’s determination is conclusive and binding [because the PIU Agreement] does

Memorandum Opinion and Order – Page 58

not provide for appraisal or a referee in case of disagreement.” Id. at 5. Defendants continue to
maintain that Weisheit’s opinion is unreliable because it is based on projected, hypothetical 2013
values.
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Id. District courts are assigned a gatekeeping role to determine the admissibility of expert testimony.
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-98 (1993). The court must find that the
evidence is both relevant and reliable before it may be admitted. Id. To do so, the court must
evaluate whether the reasoning and methodology underlying the expert’s testimony is valid and can
be reliably applied to the facts of the case. Id.; Knight v. Kirby Inland Marine Inc., 482 F.3d 347,
352 (5th Cir. 2007) (“Reliability is determined by assessing whether the reasoning or methodology
underlying the testimony is scientifically valid.”). This requires more than a glance at the expert’s
credentials; the court must also ensure that the expert has reliably applied the methods in question.
See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998) (en banc). The aim is to
exclude expert testimony based merely on subjective belief or unsupported speculation. See
Daubert, 509 U.S. at 590. The court must also determine whether the expert’s reasoning or

Memorandum Opinion and Order – Page 59

methodology is relevant in that it “fits” the facts of the case and will thereby assist the trier of fact
to understand the evidence. See id. at 591.
Factors to consider when evaluating reliability include: (1) whether a theory or technique can
be tested; (2) whether the theory or technique has been subjected to peer review and publication; (3)
the known or potential rate of error; (4) the existence and maintenance of standards and controls; and
(5) general acceptance of the theory in the scientific or expert community. Daubert, 509 U.S. at 59395. The reliability inquiry is flexible, and the judge has discretion in determining which factors are
most germane in light of the nature of the issue, the particular expertise, and the subject of the
expert’s testimony. Id. at 594-95; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999). In
assessing whether an expert’s testimony is reliable, the trial court must, nevertheless, strive to ensure
that the expert, “whether basing testimony on professional studies or personal experience, employs
in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the
relevant field.” Kumho Tire, 526 U.S. at 152. The relevance and reliability of expert testimony turn
upon its nature and the purpose for which its proponent offers it. See, e.g., Hodges v. Mack Trucks,
Inc., 474 F.3d 188, 195 (5th Cir. 2006) (“Of course, whether a proposed expert should be permitted
to testify is case, and fact, specific.”) (citing Kumho Tire, 526 U.S. at 150-51).
The Advisory Committee’s Notes explain that when a “witness relies solely or primarily on
experience, then the witness must explain how that experience leads to the conclusion reached, why
that experience is a sufficient basis for the opinion, and how that experience is reliably applied to
the facts.” Fed. R. Evid. 702 advisory committee’s notes (2000 amendments). This is because the
“trial court’s gatekeeping function requires more than simply taking the expert’s word for it” that
the claimed basis supports the opinion. Id. (citing Daubert v. Merrell Dow Pharms., Inc., 43 F.3d

Memorandum Opinion and Order – Page 60

1311, 1319 (9th Cir. 1994) (“We’ve been presented with only the experts’ qualifications, their
conclusions and their assurances of reliability. Under Daubert, that’s not enough.”)). According to
the Advisory Committee’s Notes, “The more subjective and controversial the expert’s inquiry, the
more likely the testimony should be excluded as unreliable.” Fed. R. Evid. 702 Advisory
Committee’s Notes (citing Kumho Tire Co., 526 U.S. at 152) (“[I]t will at times be useful to ask even
of a witness whose expertise is based purely on experience, say, a perfume tester able to distinguish
among 140 odors at a sniff, whether his preparation is of a kind that others in the field would
recognize as acceptable.”)).
The court determines that the opinion expressed by Weisheit in his September 6, 2016 expert
report regarding the value of Le’s PIUs is not reliable or relevant and, therefore, not admissible. An
“expert’s testimony must be reliable at each and every step or else it is inadmissible.” Knight, 482
F.3d at 354. Thus, if an expert does not specifically elucidate the methodology and basis he used
in formulating his opinions, his opinions are unreliable and inadmissible because, under Daubert,
an expert’s qualifications, conclusions, and assurances of reliability are not enough. Daubert, 43
F.3d at 1319. “The reliability analysis applies to all aspects of an expert’s testimony: the
methodology, the facts underlying the expert’s opinion, the link between the facts and the
conclusion, et alia.” Knight, 482 F.3d at 355 (citation omitted).
Weisheit’s September 6, 2016 opinion that the value of Le’s PIUs is $5,013,517 is not based
on any particular methodology and is not grounded in relevant facts or data. According to the
Curriculum Vitae attached to his expert report, Weisheit is a certified public accountant (“CPA”) and
is qualified to provide testimony as a CPA expert witness in federal and state court based on his
experience or expertise in “investigative accounting, litigation support, and business valuation.”

Memorandum Opinion and Order – Page 61

Pl.’s Resp. App. 46. As noted by Le, Defendants do not seek to exclude Weisheit’s testimony based
on his qualifications. Regardless, Weisheit does not indicate in his report that his conclusion
regarding the $5,013,517 value of Le’s PIUs is based on his experience; nor does he explain the
methodology he used in reaching this conclusion or any accounting practices or standards recognized
in his industry. Weisheit indicates that he relied on the “calculation of Le’s prospective PIU” that
was “done by Exeter at the time of [] Le’s recruitment in 2013” in calculating the value of the PIUs.
Id. at 14. Weisheit, however, fails to explain why his use of the 2013 prospective figures is
appropriate in calculating the actual value of the PIUs as of the 2015 call date, even though he
acknowledges that the PIUs are subject to vesting, performance, and other conditions in the PIU
Agreement, id. at 12, which he considered in preparing his September 6, 2016 report. See id. at 31
(Attachment to 4 to Weisheit expert report, “Facts & Data Considered” includes the May 27, 2014
PIU Agreement). Weisheit, instead, states in conclusory fashion as follows regarding the
assumptions he relied on: “Mr. Le’s historical earnings and equity positions are reasonable
benchmarks for his future earnings and equity positions.” Id. at 15. For these reasons, the court
concludes that his expert opinion regarding the value of Le’s PIUs or PIU damages is unreliable and
inadmissible.
Defendants contend, and the court agrees for the reasons previously explained, that Plaintiff
should not be allowed to offer new expert testimony or otherwise “fix” his prior designations under
the guise of supplementing his expert’s report or opinion. Even if the court were to allow Plaintiff
to supplement or amend his designations and his expert’s report, Weisheit’s opinions regarding the
value of Le’s PIUs or Le’s PIU damages in his First and Second Supplemental and Amended
Reports, dated January 6, 2017, and December 15, 2017, are similarly inadmissible. Weisheit’s

Memorandum Opinion and Order – Page 62

January 6, 2017 and December 15, 2017 opinions regarding the $5,013,517 value of Le’s PIUs are
inadmissible for the exact same reason his September 6, 2016 opinion regarding Le’s PIUs is
inadmissible. The only difference between these two opinions is that Weisheit states in his January
6, 2017 and December 15, 2017 reports regarding “Assumptions Relied On” that “[t]he Profits
Interest Example, as prepared by Exeter, is a reasonable approximation of the actual PIU Mr. Le
should have received.” Id. at 43; Pl.’s Supp. Summ. J. Resp. App. 9. This conclusory statement,
however, adds nothing, as it does not explain why Exeter’s 2013 projection regarding the value of
Le’s PIUs is a reasonable approximation of the actual value of the PIUs as of the 2015 call date,
under the PIU Agreement and provides no information regarding Weisheit’s methodology.
Moreover, if no methodology was actually used and Weisheit did not actually calculate the value of
Le’s PIUs and, instead, is simply relying on a $5,013,517 projected value that was included in a
hypothetical “Profits Interest Example” calculated by Exeter in 201315 and opining that this value
is a reasonable approximation of Le’s actual PIU damages, no expert testimony is needed, and any
testimony by him would not assist the trier of fact since he makes no attempt to explain why
$5,013,517 is a reasonable approximation for the actual value of the PIUs as of the 2015 call date,
despite his continued acknowledgment that the PIUs are subject to vesting, performance, and other
conditions in the PIU Agreement that are not addressed in his report. Id. at 39.

15

See Defs.’ Mot. to Exclude App. 25, which includes a copy of the Profits Interest Example that Le says
Exeter’s CEO gave to him in 2013 during his recruitment. The figures in this Profits Interest Example are identical to
those included in a chart in all three of Weisheit’s reports. Thus, Weisheit’s opinion in this regard merely adopts what
Exeter told Le in 2013 regarding the projected PIU value in the Profits Interest Example. As noted, Weisheit’s original
report says nothing about why this is an appropriate valuation under the PIU Agreement, and Weisheit provides no
explanation for his conclusion in his first and second supplemental and amended reports that this value is a “reasonable
approximation of the actual PIU [] Le should have received.” Pl.’s Summ. J. Resp. App. at 43; Pl.’s Supp. Summ. J.
Resp. App. 9. Consequently, Weisheit’s opinion in this regard would not assist a “trier of fact to understand or determine
a[ny] fact in issue.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003).

Memorandum Opinion and Order – Page 63

Le’s argument that his expert’s opinion and reliance on the “projected PIU value” calculated
by Exeter in June 2013 are reasonable and reliable because he is entitled to recover expectancy
damages under Texas law and reasonably expected to earn this projected PIU value when he
accepted Exeter’s offer of employment does not salvage Weisheit’s opinion. The universal rule
under Texas law in measuring damages for a breach of contract claim is to provide just compensation
for any loss or damage actually sustained as a result of the breach. Phillips v. Phillips, 820 S.W.2d
785, 788 (Tex. 1991); Sharifi v. Steen Auto., LLC, 370 S.W.3d 126, 148 (Tex. App.

Dallas 2012,

no pet.). Under this rule, a party generally should be awarded neither less nor more than his actual
damages. Stamp Ad, Inc. v. Barton Raben, Inc., 915 S.W.2d 932, 936 (Tex. App.

Houston [1st

Dist.] 1996, no writ) (citing Stewart v. Basey, 245 S.W.2d 484, 486 (Tex. 1952)). Courts determine
the proper measure of damages from the facts of the case. Vance v. My Apartment Steak House of
San Antonio, Inc., 677 S.W.2d 480, 481 n.1 (Tex. 1984); Sharifi, 370 S.W.3d at 148.
Breach of contract damages are generally designed to protect three interests: a restitution
interest, a reliance interest, and an expectation interest. O’Farrill Avila v. Gonzalez, 974 S.W.2d
237, 247 (Tex. App.

San Antonio 1998, pet. denied). Expectancy damages are similar to

benefit-of-the-bargain damages. Qaddura v. Indo-European Foods, Inc., 141 S.W.3d 882, 888-89
(Tex. App.

Dallas 2004, pet. denied). Expectancy damages are similar to benefit-of-the-bargain

damages in that they award damages “for the reasonably expected value of the contract.” Sharifi,
370 S.W.3d at 148 (citation omitted). The purpose of benefit-of-the-bargain damages is to restore
the non-breaching party to the same economic position it would have been in had the contract been
performed. SAVA gumarska in kemijska industria d.d. v. Advanced Polymer Sci., Inc., 128 S.W.3d
304, 317 n.6 (Tex. App.

Dallas 2004, no pet.).

Memorandum Opinion and Order – Page 64

As Defendants correctly note, Le’s contract claim is based on his contention that Defendants
violated and breached the PIU Agreement in attributing a value of $0 to his PIUs on the call date,
not some promise made by Exeter in 2013 when he was recruited. Le also acknowledges that
Defendants were entitled to call the PIUs, and the valuation of those PIUs is governed by the PIU
Agreement’s method for calculating the fair market value of his PIUs. Accordingly, the projected
PIU value communicated to Le in 2013 is entirely irrelevant, as any expectancy damages for breach
of the PIU Agreement would be limited to those necessary to put him back in the same economic
position had Defendants performed as required under the PIU Agreement in valuing his PIUs in
accordance with the method in the PIU Agreement. Le acknowledges as much, but he continues to
assert that he is entitled to recover the projected PIU value included in the Profits Interest Example
that Exeter’s CEO provided to him in 2013, two years before his employment with Exeter was
terminated and before his PIUs were called pursuant to the PIU Agreement in 2015. Again,
however, neither Le nor his expert explains why the 2013 calculation based on hypothetical projected
values is a reasonable approximation of the fair market value of Le’s PIUs and damages necessary
to put him back in the same economic position as if Defendants had performed as required under
the PIU Agreement in valuing his PIUs in accordance with the method in the PIU Agreement as of
the 2015 call date.
Le also contends in an unauthorized supplemental submission or surreply (Doc. 78) that
Defendants’ Motion to Exclude is moot in light of Weisheit’s Second Supplemental and Amended
Expert Report, dated December 15, 2017, as it takes into account information in the Duff & Phelps
reports produced by Defendants in placing a value on his PIUs and sets forth his “opinions as to the
equity value, and the basis therefore.” Pl.’s Supp. Resp. to Mot. to Exclude 2. Regarding this value,

Memorandum Opinion and Order – Page 65

Weisheit’s report includes two charts. In one chart (Table 9 in Weisheit’s report), he concludes that
Le’s PIU is worth $38,859, which is based on the assumption that “[a]t the time of his termination,
Le was 20% vested in his Time-Based PIU,” and his calculation that the PIU(s) had a total value of
$383,904 at 100% vested.

Pl.’s Supp. Summ. J. Resp. App. 7. Weisheit also indicates that the

figures used to calculation these PIU values are based on the “April 28, 2015 Duff & Phelps report
regarding, Estimation of the Fair Value of Certain Profits Interest Units of Enzo Parent, LLC as of
December 31, 2014.” Id. Based on his calculations that Le’s PIUs had a value of $383,904 at 100%
vested and $38,859 at 20% vested, Weisheit further concludes or summarizes Le’s “Profits Interest
Units Loss” in the second chart (Table 11 in Weisheit’s report) as follows:
Description

Reference

Amount

Expectancy Loss

Table 8

$5,013,517

Unjust Enrichment Loss

Table 9

$383,904

Breach of Contract Loss

Table 9

$38,859

Id. at 9. Regarding these amounts, Weisheit concludes that “Le sustained a range of Profit Interest
Units losses” as set forth in this chart and states: (1) “During the process of recruiting Mr. Le in
2013, Defendants indicated to Mr. Le that Enzo would have an ‘Exit Value’ of $2.261 billion at a
time when its valuators concluded its value range to be between $220 and $240 million”; and (2)
“During the process of terminating Mr. Le in 2015, Defendants indicated to Mr. Le that his PIU had
$0 value at a time when its valuators concluded his value range to be between $383,904 (100%
vested) and $38,858 (20% vested).” Id. In addition to the prior assumptions relied upon, Weisheit
indicates, without explanation, that “[t]he April 28, 2015 Duff & Phelps report regarding, Estimation
of the Fair Value of Certain Profits Interest Units of Enzo Parent, LLC as of December 31, 2014 can

Memorandum Opinion and Order – Page 66

be relied on to reasonably approximate the value of Mr. Le’s PIU as of the date of his termination.”
Id. at 9.
Defendants did not respond to Le’s unauthorized December 15, 2017 surreply to their Motion
to Exclude or comment on Weisheit’s Second Supplemental and Amended Expert Report.
Regardless, the new opinion expressed by Weisheit regarding the value of Le’s PIUs as of the date
of his termination and the amount of his “Breach of Contract Loss” is unreliable and inadmissible.
The foregoing information is the sum total of Weisheit’s new opinion and analysis. As with his prior
reports, Weisheit does not explain his methodology for reaching his conclusions, leaving the court
to guess at how he applied the newly produced Duff & Phelps reports in forming his new opinion.
Further, as explained, his assumption that the December 31, 2014 fair value estimation in the April
28, 2015 Duff & Phelps report can be relied upon “to reasonably approximate the value of [] Le’s
PIU as of the date of his termination” is conclusory and fails to take into account the PIU’s
Agreement’s method for calculating the fair market value of Le’s PIUs. Id. at 9. Weisheit’s
conclusion that Le sustained an “Expectancy Loss” of $5,013,517 based on the hypothetical PIU
value projected by Exeter in 2013 is also at odds with Texas law dealing with expectancy damages
and, thus, legally flawed for the reasons already discussed. Finally, to the extent Weisheit concludes
that Le can recover “expectancy damages” of $5,013,517, in addition to damages for a “Breach of
Contract Loss” in the amount of $38,859, such conclusion would result in an impermissible double
recovery, as any recoverable expectancy damages under Texas law and the “Breach of Contract
Loss” calculated by Weisheit would compensate Le for the same alleged injury resulting from
Defendants’ failure to comply with the PIU Agreement in calculating the fair market value of his
PIUs as of the 2015 call date.

Memorandum Opinion and Order – Page 67

For all of these reasons, the court will grant Defendants’ Motion to Exclude, and Weisheit
will not be allowed to testify regarding Le’s Category I or Lennox Damages or his Category II or
Exeter Damages that pertain to the value of Le’s PIUs or related damages. The court will also
disregard Plaintiff’s evidence regarding this testimony in ruling on Defendants’ summary judgment
motion.
VI.

Defendants’ Summary Judgment Motion
Defendants have moved for summary judgment on all of Plaintiff’s claims.
A.

Summary Judgment Standard

Summary judgment shall be granted when the record shows that there is no genuine dispute as to any
material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co.,
136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is “genuine” if the evidence
is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment,
the court is required to view all facts and inferences in the light most favorable to the nonmoving
party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v. Swift Transp. Co.,
Inc., 402 F.3d 536, 540 (5th Cir. 2005). Further, a court “may not make credibility determinations
or weigh the evidence” in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the
nonmoving party’s case, the party opposing the motion must come forward with competent summary
judgment evidence of the existence of a genuine dispute of material fact. Matsushita Elec. Indus.

Memorandum Opinion and Order – Page 68

Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). On the other hand, “if the movant bears the burden
of proof on an issue, either because he is the plaintiff or as a defendant he is asserting an affirmative
defense, he must establish beyond peradventure all of the essential elements of the claim or defense
to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)
(emphasis in original). “[When] the record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party, there is no ‘genuine [dispute] for trial.’” Matsushita, 475 U.S. at
587. (citation omitted). Mere conclusory allegations are not competent summary judgment
evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73
F.3d 1322, 1325 (5th Cir. 1996).

Unsubstantiated assertions, improbable inferences, and

unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19
F.3d 1527, 1533 (5th Cir. 1994).
The party opposing summary judgment is required to identify specific evidence in the record
and to articulate the precise manner in which that evidence supports his or her claim. Ragas, 136
F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search of
evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see also
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). “Only disputes over
facts that might affect the outcome of the suit under the governing laws will properly preclude the
entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues that are “irrelevant
and unnecessary” will not be considered by a court in ruling on a summary judgment motion. Id.
If the nonmoving party fails to make a showing sufficient to establish the existence of an element
essential to its case and on which it will bear the burden of proof at trial, summary judgment must
be granted. Celotex, 477 U.S. at 322-23.

Memorandum Opinion and Order – Page 69

B.

Analysis
1.

Retaliation Opposition Employment Law Claims

Defendants move for summary judgment on all of Plaintiff’s retaliation claims under Title
VII, TCHRA, 42 U.S.C. § 1981, FLSA, FMLA, ADA, and ADEA on the ground that such claims
are barred by the “manager rule” because Le did not “step outside of his role” as Exeter’s CHRO in
taking any of the action that he contends was protected under these statutes. See Defs.’ Summ. J. Br.
9. Defendants also contend that Plaintiff cannot establish the first prong (protected activity) and
third prong (causation) of a prima facie case of retaliation under these statutes. For the reasons that
follow, the court agrees that Plaintiff’s FLSA claim is barred by the manager rule. The court’s
analysis regarding Plaintiff’s remaining employment law claims, on the other hand, focuses on
whether Plaintiff engaged in protected activity as required to establish a prima facie case of
retaliation under the various statutes and concludes that Plaintiff cannot establish a prima facie case
of retaliation under any of the foregoing statutes. The court, therefore, need not address the parties’
legal argument whether Plaintiff’s retaliation claims under statutes, other than the FLSA, are barred
by the manager rule in light of the lack of Fifth Circuit authority directly on point.
a.

Claims under Title VII, 42 U.S.C. § 1981, and TCHRA

Le asserts that Defendants retaliated against him in violation of Title VII, 42 U.S.C. § 1981
and the TCHRA when they terminated his employment. The McDonnell Douglas framework applies
to retaliation claims under Title VII when direct evidence of discriminatory or retaliatory intent is
lacking. Long v. Eastfield Coll., 88 F.3d 300, 304 05 (5th Cir. 1996). Under this framework, the
plaintiff must first establish a prima facie case of retaliation under Title VII by showing that: (1) he
engaged in a protected activity; (2) he experienced an adverse employment action following the

Memorandum Opinion and Order – Page 70

protected activity; and (3) a causal link existed between the protected activity and the adverse
employment action. McCoy v. City of Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007) (footnote
and citation omitted); Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001); Mota
v. University of Texas Houston Health Sci. Ctr., 261 F.3d 512, 519 (5th Cir. 2001). “If the plaintiff
makes a prima facie showing, the burden then shifts to the employer to articulate a legitimate,
nondiscriminatory or nonretaliatory reason for its employment action.” McCoy, 492 F.3d at 557 The
burden then shifts to the plaintiff to demonstrate that the proffered reason is a pretext for
discrimination.” Id.; Montemayor, 276 F.3d at 692.
“Under Title VII’s antiretaliation provision, protected activity can consist of either: (1)
‘oppos[ing] any practice made an unlawful employment practice by this subchapter’ or (2) ‘ma[king]
a charge, testif[ying], assist [ing], or participat[ing] in any manner in an investigation, proceeding,
or hearing under this subchapter.’” Rite Way Serv., Inc., 819 F.3d at 239 (quoting 42 U.S.C. §
2000e 3(a)). “The first of these is known as the ‘opposition clause;’ the second as the ‘participation
clause.’” Id. at 239. Plaintiff’s Title VII claim is an opposition claim, as he contends that his
employment was termination because he opposed discriminatory conduct by Exeter and refused to
carry out Exeter’s discriminatory policies and commands. Under the opposition clause of §
2000e 3(a), an employee must establish that he opposed an employment practice or conduct that he
reasonably believed was unlawful under Title VII. Rite Way Serv., Inc., 819 F.3d at 240-42; Long,
88 F.3d at 304. “[T]he reasonable belief standard recognizes there is some zone of conduct that falls
short of an actual violation but could be reasonably perceived to violate Title VII.” Rite Way Serv.,
Inc., 819 F.3d at 242. In Rite Way Services, Incorporated, the Fifth Circuit concluded that the
following factors were relevant in determining whether an employee had a reasonable belief that

Memorandum Opinion and Order – Page 71

Title VII was being violated: (1) whether an employee is an expert in employment law; (2) “the
context in which [an employee] opposed [his] employer’s conduct”; (3) the context in which a
comment was made or conduct occurred, including information known by the complaining employee
in evaluating the seriousness of the comment or conduct; and (4) whether the conduct was directed
at a specific employee and came from a person in a supervisory position over the plaintiff. Id. at 242244 & n.5.
The TCHRA was “modeled after federal civil rights law,” and its express purpose is to
execute the policies of Title VII. NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999).
The TCHRA “purports to correlate state law with federal law in the area of discrimination in
employment,” so Texas courts “look to analogous federal precedent for guidance when interpreting”
the TCHRA. Id. (citations and quotation marks omitted). Retaliation claims under § 1981 and Title
VII also require proof of the same elements. Foley v. Univ. of Hous. Sys., 355 F.3d 333, 340 n.8 (5th
Cir. 2003). Accordingly, the court will analyze Le’s retaliation claims under Title VII, TCHRA, and
§ 1981 under the same standard.
Defendants contend that they are entitled to summary judgment on Le’s retaliation claims
under Title VII, TCHRA, and section 1981 claims because Le cannot satisfy the first and third
elements of a prima facie retaliation claim under Title VII, as: (1) there is no evidence Le engaged
in “protected activity” by opposing a practice made unlawful under Title VII; and (2) there is no
causal connection between his alleged opposition and the termination of his employment.
Regarding the first element, Plaintiff responds as follows:
It is undisputed that Exeter’s management disparaged TS due to her minority
ethnicity and questioned her ethno-centric attire. P. App. 104, 119 (Le 225:6-226:4).
It is undisputed that Plaintiff outright refused to terminate TS, when asked by

Memorandum Opinion and Order – Page 72

Exeter’s Chief of Staff (“CoS”), which caused Exeter’s CEO to wait until shortly
after Plaintiff’s own termination before terminating TS. P. App. 119. Plaintiff raised
these objections to Mr. Anderson and Ms. Montalbano. Id. It is undisputed that
Plaintiff’s opposition of these events occurred shortly before Plaintiff’s termination
(late 2014 through February 2015). Id. Plaintiff’s opposition falls squarely within the
gambit of communication that the Supreme Court has confirmed constitute
“opposition” to Defendant Exeter’s discriminatory activity. Because of the
overlapping case law, each of these actions are protected from retaliatory termination
under Title VII, TCHRA, and 42 U.S.C. § 1981.
Pl.’s Summ. J. Resp. 12. For support, Plaintiff cites to paragraph 8 of his affidavit, in which he
states:
In February 2015, Mr. Anderson and Ms. Montalbano disparaged Taralynn
Siliuta, Exeter’s HR Recruiter stationed in Salt Lake City, UT, due to her medical
disability that caused her seizures. Both Mr. Anderson and Ms. Montalbano also
openly criticized the way she dressed, given her minority background. Mr. Anderson
and Ms. Montalbano decided to terminate Ms. Siliuta, claiming she did not project
a “professional image” for Exeter. I opposed these actions to both Mr. Anderson and
Ms. Montalbano. I also refused to carry out the termination. As such, Exeter waited
until shortly after my termination to terminate Ms. Siliuta.
Pl.’s Summ. J. Resp. App. 120.16 Plaintiff also relies on pages 225:6-25 to 226:1-4 of his deposition
testimony where he discussed Taralynn Siliuta (“Siliuta”):
Q. Okay. And at any point, did you make Mr. Anderson aware that you were
opposing alleged discrimination or retaliation?
...
A. There were a few examples that come to mind. I mean, the the Taralynn
situation. . . . She was in the process of scheduling a . . . job fair and was then hit by
a couple of seizures that required us to take her to the hospital. . . . And Tom
Anderson was very quick on having me fire her. And I pointed out to Tom Tom,
we just had an employee go through a seizure here, we need to giver her some time
to recover, et cetera, et cetera. And he initially backed off on his desire to have me
terminate her, but it was probably a few weeks later, maybe a month later, whe[n] he
insisted [on] it again. And I just, Tom, we . . . can’t do it. We’ve got too much risk
in this particular situation.
Id. at 104.

16

Plaintiff cites page 119 of his appendix, but the only statements by him regarding Siliuta are on page 120 of
his appendix.

Memorandum Opinion and Order – Page 73

Defendants reply that Plaintiff’s evidence does not raise a genuine dispute of material fact
that he engaged in protected activity, as his evidence does not establish that he opposed conduct that
he reasonably believed violated Title VII, because, among other things, Plaintiff’s evidence fails to
identify Siliuta’s ethnicity, and the cited portion of his deposition testimony is misleading and
irrelevant because it does not support his contention that Exeter’s management disparaged Siliuta
due to her minority ethnicity and questioned her ethno-centric attire.
The court agrees that Plaintiff’s evidence does not establish that he engaged in protected
activity by opposing conduct that he reasonably believed violated Title VII. Plaintiff testified in his
deposition that he opposed Anderson’s request to fire Siliuta after she had two seizures at work.
Given Le’s position as the head of Exeter’s Human Resources department, he had more knowledge
and expertise in employment law than an average employee and could not have reasonably believed
that Anderson’s conduct in asking him to fire Siliuta because of a perceived medical disability was
unlawful under Title VII, which prohibits discrimination in the workplace because of racial, ethnic,
color, religious, or gender-based status.17 Burlington N. & Santa Fe Ry. Co., 548 U.S. 53 at 63 (citing
McDonnell Douglas Corp., 411 U.S. at 800-801). Le does not dispute Defendants’ contention that
it was his job as CHRO to ensure compliance with the state and federal employment law statutes
under which his retaliation claims were brought, and he expressly acknowledges that, “[i]n his
capacity as CHRO, [h]e was tasked with implementing company policy and monitoring the

17

The basis for this determination is not related to the parties’ argument whether Le was required to show that
he “stepped outside of his role” as CHRO. The court’s focus, instead, is whether someone with Le’s knowledge and
experience as a CHRO and Human Resources department head could have reasonably believed that discrimination based
on an employee’s medical disability was unlawful under Title VII as opposed to the ADA. See Rite Way Serv., Inc., 819
F.3d at 238, 242 & n.5 (considering whether “an employee like Tennort, [who was employed as a general cleaner for
the defendant, a janitorial services contractor for a high school and] not instructed on Title VII as a jury would be,
reasonably believed that she was providing information about a Title VII violation” and citing Boyer–Liberto v.
Fontainebleau Corp., 786 F.3d 264, 290 (4th Cir. 2015) (en banc) (Wilkinson, J., concurring in part and dissenting in
part), for the proposition that employees are generally not experts in employment law).

Memorandum Opinion and Order – Page 74

company’s compliance with the state and federal laws regulating its activity.” Pl.’s Summ. J. Resp.
Br. 18 & App. 118 (Le Aff. ¶ 4). Le’s deposition testimony also indicates that his job involved
investigating whether the termination of employees violated various employment statutes that
prohibit, for example, racial discrimination. Thus, although the court does not hold him to a standard
of what a lawyer would reasonably know and believe, the undisputed evidence establishes that he
was more knowledgeable regarding state and federal employment laws in his capacity as Exeter’s
CHRO than the average employee would have been. Le also conceded that “you don’t have to be
a lawyer” to know that terminating an employee because of their race is illegal. See Defs.’ Summ.
J. App. 197-98, 213-16.
Moreover, the affidavit that Plaintiff submitted in response to Defendants’ summary
judgment motion on January 6, 2017, directly contradicts, without explanation, his earlier November
14, 2016 deposition testimony and, therefore, is not competent summary judgment evidence.18
Specifically, Plaintiff states in his affidavit that he opposed Anderson’s and Montalbano’s decision
to terminate Siliuta because, although they claimed that Siliuta should be fired because she did not
project a “professional image” for Exeter, he believed their request for him to fire her pertained to
their prior criticism regarding the “the way she dressed, given her minority background.” Id. at 104.
In his deposition, on the other hand, Plaintiff testified that he opposed unlawful discrimination when
Exeter CEO Anderson requested him to fire Siliuta immediately after she had a couple of seizures

18

An affidavit or declaration that contradicts prior deposition testimony of the affiant for the purposes of
creating a fact issue is not competent summary judgment evidence and cannot be considered by a court. Crowe v. Henry,
115 F.3d 294, 298 n.4 (5th Cir. 1997) (“It is well settled that this court does not allow a party to defeat a motion for
summary judgment using an affidavit that impeaches, without explanation, sworn testimony.”) (quoting S.W.S. Erectors,
Inc., 72 F.3d 489, 495 (5th Cir. 1996)). “Although the court must resolve all factual inferences in favor of the nonmovant,
the nonmovant cannot manufacture a disputed material fact where none exists.” Albertson v. T.J. Stevenson & Co., Inc.,
749 F.2d 223, 228 (5th Cir. 1984) (citation omitted). Thus, a “nonmovant cannot defeat a motion for summary judgment
by submitting an affidavit [that] directly contradicts, without explanation, his previous testimony.” Id.

Memorandum Opinion and Order – Page 75

that required her to be hospitalized. Plaintiff said nothing in his deposition about Anderson or
Montalbano asking him to fire Siliuta for a perceived discriminatory purpose pertaining to her
minority ethnicity, and he offers no explanation for this inconsistent testimony. Accordingly, the
court cannot consider Plaintiff’s affidavit testimony in determining whether he opposed conduct by
Exeter that he reasonably believed was unlawful under Title VII. See S.W.S. Erectors, Inc., 72 F.3d
at 495 (“It is well settled that this court does not allow a party to defeat a motion for summary
judgment using an affidavit that impeaches, without explanation, sworn testimony.”) (footnote and
citations omitted).
Because the deposition testimony relied on by Plaintiff does not create a genuine dispute of
material fact that he opposed conduct that he reasonably believed violated Title VII, he has failed
to raise a genuine dispute of material fact with respect to the first prong necessary to establish a
prima facie case of retaliation under Title VII, and Defendants are entitled to judgment as a matter
of law on Plaintiff’s retaliation claim, whether brought under Title VI, the TCHRA, or § 1981.
Having determined that Plaintiff has failed to raise a genuine dispute of material fact with respect
to the first prong to establish a prima facie case, the court need not address the parties’ contentions
regarding the third prong (causation) or whether Plaintiff’s retaliation claim under Title VI, the
TCHRA, or § 1981 is barred by the manager rule.
b.

ADA

Defendants contend that Plaintiff’s ADA retaliation claim fails because there is no evidence
he engaged in activity protected under the ADA, and there is no causal connection between any such
activity and an adverse employment law action. Plaintiff disagrees and contends in response that it
is undisputed that:

Memorandum Opinion and Order – Page 76

Exeter’s management disparaged TS due to her medical disability that caused her
seizures. P. App. 104, 119 (Le 225:6-226:4). It is undisputed that Plaintiff outright
refused to terminate TS, when asked by Exeter’s management, which caused Exeter’s
CEO to wait until shortly after Plaintiff’s own termination before terminating TS. P.
App.119. Plaintiff raised these concerns to Mr. Anderson and Ms. Montalbano. Id.
It is also undisputed that Ms. Hoffman was terminated shortly after reporting a sexual
harassment complaint. Id. Plaintiff opposed the termination to both Mr. Frunzi and
Mr. Evans. Plaintiff’s actions under both cases are protected under the ADA. In the
context of ADA, “[A] close temporal relationship between a plaintiff's participation
in protected activity and an employer’s adverse actions can besufficient to establish
causation.” It is undisputed that Plaintiff’s opposition set forth herein occurred
shortly before his termination from Exeter. Id.
Pl.’s Summ. J. Resp. 15 (footnote omitted).
The ADA prohibits employers from discriminating “against a qualified individual on the
basis of disability.” 42 U.S.C. § 12112(a). The ADA defines a disability as: (1) “a physical or mental
impairment that substantially limits one or more major life activities of such individual”; (2) “a
record of such an impairment;” or (3) “being regarded as having such an impairment.” §
12102(1)(A)-(C). “Major life activities include ‘caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working.’” Kemp v. Holder, 610 F.3d 231, 235 (5th
Cir. 2010) (quoting § 12102(2)(A)). An individual is “regarded as having such an impairment” if
the individual has been subjected to action prohibited by the ADA “because of an actual or perceived
physical or mental impairment whether or not the impairment limits or is perceived to limit a major
life activity,” but not if the impairments that are merely “transitory and minor.” § 12102(3)(A)-(B).
To establish a claim for unlawful retaliation under the ADA, based on circumstantial
evidence, a plaintiff must establish a prima facie case of retaliation by showing that he: (1) engaged
“in an activity protected by the ADA”; (2) suffered “an adverse employment action,” and (3) the
existence of “a causal connection between the protected act and the adverse action.” Seaman v.

Memorandum Opinion and Order – Page 77

CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999) (citation and footnote omitted). If the plaintiff
establishes a prima facie case, “the defendant must come forward with a legitimate, non-[retaliatiory]
reason for the adverse employment action.” Id. (citation and footnote omitted). If the defendant
advances such a reason, the burden shifts to the plaintiff to establish that “the proffered reason is a
pretext for retaliation,” and the adverse employment action would not have occurred “but for” the
protected activity. Id.
As noted, Defendants’ motion focuses on the first and third elements of a prima facie case
of retaliation under the ADA. In response, Plaintiff relies on paragraph eight of his affidavit and
pages 225:6 through 226:4 of his deposition, which include some of the same evidence he used to
support his claim that he was retaliated against in violation of Title VII and TCHRA for refusing to
fire Siliuta. See Pl.’s Summ. J. Resp. 15 (citing Pl.’s Summ. J. App. 104, 119).19
The ADA retaliation provision protects any individual who has “opposed any act or practice
made unlawful by” the ADA or who has made a charge under the ADA. 42 U.S.C. § 12203(a). To
qualify as protected activity, the employee must have had a “reasonable belief that the employer was
engaged in unlawful employment practices.” St. John v. Sirius Solutions, LLLP, 299 F. App’x 308,
308 (5th Cir. 2008) (per curiam) (quoting Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348
(5th Cir. 2007)). An informal, internal complaint may be considered activity protected under the
ADA’s anti-retaliation provision, as long as the complaint asserts a violation of the ADA, as opposed
to “abstract grumblings” or “vague expressions of discontent,” which are not protected under the
ADA. Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 626 (5th Cir. 2008); see also Yount v. S
& A Restaurant Corp., 226 F.3d 641, 2000 WL 1029010, at *3 (5th Cir. 2000) (“[T]he relevant

19

As previously noted, Plaintiff cites page 119 of his appendix, but the only statements by him regarding Siliuta
appear in paragraph eight on page 120 of his appendix.

Memorandum Opinion and Order – Page 78

question . . . [is] whether the employee’s communications to the employer sufficiently convey the
employee’s reasonable concerns that the employer has acted or is acting in an unlawful
discriminatory manner.”) (citation and internal quotation marks omitted). Refusal to follow a
manager’s order to fire an employee for “discriminatory reasons” is considered protected activity.
Crawford v. Metropolitan Gov’t of Nashville and Davidson Cty., Tenn., 555 U.S. 271, 277 (2009).
Thus, Le’s opposition to Anderson’s request to fire Siliuta could qualify as protected activity if Le
reasonably believed that firing Siliuta amounted to unlawful disability discrimination under the
ADA, and he conveyed that concern to Anderson.
The court determines that Le’s contentions and the evidence relied on by him regarding “TS”
or Siliuta and “Ms. Hoffman” are insufficient to establish the first element of a prima facie case of
ADA retaliation. Le’s argument regarding Danielle Hoffman (“Hoffman”) is baffling. It is unclear
why he contends that the termination of Hoffman’s employment, shortly after she reported a sexual
harassment complaint, supports his ADA retaliation claim, as sexual harassment is clearly not covered
by the ADA. This argument by him is entirely without merit and, to use the baseball metaphor, “came
out of left field.” As a result, the court, frankly, does not quite know what to make of it. While Title
VII prohibits sexual harassment, Le does not argue that Hoffman’s discharge for reporting sexual
harassment violates Title VII, or that he opposed any such employment practice with respect to
Hoffman. The court, therefore, does not address whether the statements in Le’s affidavit regarding
Hoffman are sufficient to state a retaliation claim under Title VII, as he does not contend in response
to Defendants’ summary judgment or indicate in his affidavit that he opposed Hoffman’s termination
because he believed it was done in violation of Title VII or any statute other than the ADA.
Moreover, Le has not come forward with any evidence to show that he opposed Hoffman’s

Memorandum Opinion and Order – Page 79

termination because he reasonably believed that Exeter violated the ADA for terminating her
employment for reporting sexual harassment, and he acknowledges in his affidavit that the ADA
applies to medical disabilities.
Le’s ADA retaliation claim based on Siliuta fares no better. Le testified that, after Siliuta
experienced a seizure or seizures, Anderson requested him to fire her shortly thereafter, but Le
“pointed out to Tom

Tom, we just had an employee go through a seizure here, we need to giver

her some time to recover, et cetera, et cetera.” Id. at 104. Le further testified that Anderson “initially
backed off on his desire to have me terminate her, but it was probably a few weeks later, maybe a
month later, whe[n] he insisted it again,” and Le responded, “Tom, we . . . can’t do it. We’ve got too
much risk in this particular situation.” Id.
Le’s stated opposition to firing Siliuta on the grounds that we need to give Siliuta “some time
to recover, et cetera, et cetera” and [w]e’ve got too much risk” does not indicate that Le reasonably
believed that firing Siliuta amounted to unlawful disability discrimination under the ADA and is far
too vague to have put Anderson or Exeter on notice that his opposition to firing Siliuta was based
on perceived disability discrimination. See Gordon v. Acosta Sales and Marketing, Inc., 622 F.
App’x 426, 431 (5th Cir. 2015) (affirming summary judgment in favor of employer on employee’s
ADA retaliation claim) (citing Harris Childs v. Medco Health Solutions, Inc., 169 F. App’x 913,
916 (5th Cir. 2006), for the proposition that “the Appellant had not engaged in a protected activity,
even though she complained of unfair treatment/harassment, because she did not demonstrate that
she ‘put the employer on notice that her complaint was based on racial or sexual discrimination.’”).
Likewise, Le’s statement approximately one month later that firing Siliuta involved “too
much risk in this particular situation,” does not show that he reasonably believed or communicated

Memorandum Opinion and Order – Page 80

to Anderson that firing Siliuta would subject Exeter to liability because doing was unlawful disability
discrimination. Without evidence regarding the context in which this later discussion arose, for
example, whether Anderson asked Le to fire Siliuta because of her seizures or whether Le conveyed
the message that he believed firing Siliuta because of her seizures was unlawful disability
discrimination, Le’s statement regarding potential risk in this situation is similarly too vague.
In his affidavit, Le attempts to bridge this gap by stating that Anderson and Montalbano
“disparaged” Siliuta “due to her medical disability that caused seizures,” “criticized the way she
dressed given her minority background,” and “decided to terminate [her], claiming she did not
project a ‘professional image’ for Exeter.” Pl.’s Summ. J. App. 104. Le goes on to state that he
“opposed these actions to both” Anderson and Montalbano. Id.
There is no evidence, however, that Montalbana, as “Exeter’s HR Recruiter stationed in Salt
Lake City, UT,” had authority to fire Siliuta. Le also does not explain why he did not previously
disclose information regarding Montalbano’s involvement or what he now refers to loosely as
Anderson’s and Montalbano’s disparagement of Siliuta “due to her medical disability that caused
seizures,” although he was asked a number of times in his deposition to identify the instances when
he made Anderson or others at Exeter aware that he was opposing unlawful discriminatory practices.
Id. Moreover, Le’s statement that Anderson and Montalbano “disparaged” Siliuta is conclusory.
Regardless, Le’s evidence that he opposed terminating Siliuta’s employment, which according to his
summary judgment response is the protected activity he engaged in under the ADA, is insufficient
for the reasons already explained.
Although “magic words are not required,” to qualify as protected opposition, the opposition
“must at least alert an employer to the employee’s reasonable belief that unlawful discrimination is

Memorandum Opinion and Order – Page 81

at issue.” Brown v. United Parcel Service, Inc., 406 F. App’x 837, 840, 2010 WL 5348552, at *3
(5th Cir. Dec. 28, 2010) (citing Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 348-49 (5th
Cir. 2007); Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006); Sitar v. Ind. Dep’t of
Transp., 344 F.3d 720, 727 (7th Cir. 2003); and Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187,
1203 (10th Cir. 2008)). At most, Le’s statement that we need to give Siliuta some time to recover
conveyed the message that he may have believed that firing Siliuta immediately after her seizure
would violate Siliuta’s entitlement under the FMLA to take “reasonable leave for medical reasons,”
29 U.S.C. § 2601(b)(2), which does not constitute opposition to any act or practice made unlawful
under the ADA based on disability. Le’s statement regarding potential risk could be interpreted as
meaning any number of things that are unrelated to disability discrimination prohibited by the ADA.
As Le has not established that he engaged in protected activity under the ADA, Defendants are
entitled to judgment as a matter of law on his ADA retaliation claim.
c.

FLSA

Plaintiff’s FLSA retaliation claim is based on his contention that he opposed Exeter’s
misclassification of more than 100 underwriters for years as exempt employees and decision to
eliminate all underwriting positions to resolve the issue. Defendants contend that they are entitled
to summary judgment on Plaintiff’s FLSA retaliation claim because Le did not engage in protected
activity, that is, he did not step outside of his role as Exeter’s CHRO in taking action he claims is
protected because “[e]nsuring compliance with the FLSA, reporting potential FLSA violations to
management, raising misclassification issues, and working with management to address these issues
is his job.” Defs.’ Summ. J. Br. 9. For support that Le must show that he stepped outside of his role
as CHRO, Defendants rely on the Fifth Circuit’s reasoning in Hagan v. Echostar Satellite, L.L.C.,

Memorandum Opinion and Order – Page 82

529 F.3d 617, 628 (5th Cir. 2008). Defendants contend that, because Le cannot meet this standard
for protected activity, he cannot establish a prima facie case of retaliation under the FLSA.
Le contends that Hagan is factually distinguishable because:
Hagan required an “employee [to] step outside his or her role in the company by filing
(or threatening to file) an action adverse to the employer” in order to engage in
“protected activity.” Hagan, 529 F.3d at 627. However, that holding was limited to
a case brought under the FLSA, in which the plaintiff “as a field service manager
sought help [from the company’s Human Resources Officer] for his own perceived
sense of inability to correctly answer questions” was tasked with answering on behalf
of the company in response to employee questions. Id. at 628-29. In Hagan, this
holding was never extended to circumstances under which, as here, the plaintiff is a
human resources officer who has (1) expressed outright opposition to and (2) refused
to implement his employer’s discriminatory practices.
Pl.’s Summ. J. Resp. Br. 16 n.32. Based on Hagan and other cases, Plaintiff further asserts that
human resources managers or employees like him should not be held to a heightened standard in
reporting FLSA violations:
The language of § 215(a)(3) has been interpreted so broadly, by the majority of courts,
as to include even informal, verbal complaints by employees within the scope of its
protection. Thus, in the context of third-party retaliation claims brought by employees
in human resources, or some other position that requires advising their employer on
discriminatory practices, imposing the heightened standard for “protected activity”
would also be improper under the FLSA.
Id. (citing Hagan, 529 F.3d at 626; Dearmon v. Tex. Migrant Council, Inc., 252 F. Supp. 2d 367,
367 68 (S.D. Tex. 2003); Lambert v. Ackerley, 180 F.3d 997, 1003-05 (9th Cir. 1999) (en banc);
Valerio v. Putnam Assocs., Inc., 173 F.3d 35, 44-45 (1st Cir. 1999); and EEOC v. Romeo Cmty.
Schs., 976 F.2d 985, 989-90 (6th Cir. 1992)).
Plaintiff, nevertheless, contends that any argument he failed to step outside of his role as
CHRO is unfounded because the evidence establishes that he “went above his supervisors/managers’

Memorandum Opinion and Order – Page 83

head to the Board when things were not getting done at the operation[al] level.” Pl.’s Summ. J.
Resp. Br. 17. In this regard, Plaintiff contends:
It is undisputed that [he] presented to Exeter’s Board an analysis of how Exeter
needed to correct its misclassification of non-exempt employees/underwriters. P.
App. 102, 117-18 (Le 188:4-22). It is undisputed that[,] when no changes were made,
[he] continued to escalate his complaints to Exeter’s management, including Mark
Floyd (also a Board Member), Tom Anderson (also a Board Member) and Walt
Evans. P. App. 117-18. Mr. Evans recalled conversations with Plaintiff regarding this
matter. It is undisputed that [he] raised such complaints as recently as February 2015,
prior to his termination from Exeter. Id.; P. App. 108 (Le 241:9-242:24). So any
argument made by Defendants that [he] failed to step “outside his role” is unfounded,
as the evidence clearly shows that [he] went above his supervisors/managers’ head
to the Board when things were not getting done at the operation level.
Id. For support, Plaintiff relies on his affidavit and deposition testimony.
Defendant takes issue with Le’s assertion that he “raised such complaints as recently as
February 2015,” and replies that the deposition testimony relied on by Le makes no reference to his
opposing any perceived FLSA violation. Defendants also object to Plaintiff’s evidence regarding the
2015 discussion under Federal Rule of Civil Procedure 37(c), contending that it should be excluded
because Plaintiff never disclosed his discussions with Tom Anderson in February 2015 in responding
to Defendants’ Interrogatory No. 4 in their second set of interrogatories. Plaintiff did not respond
to this objection by Defendant.20

20

Defendants’ Interrogatory No. 4 was not included in their summary judgment appendix, which includes only
Defendants’ Interrogatory Nos. 1-3, but it was attached to Defendants’ prior motion to compel (Doc. 25), filed on
December 9, 2016. This interrogatory asks Le to “[i]dentify each individual for whom or on whose behalf you opposed
acts believed unlawful” and requests that Le identify the individual’s name and the date the opposition occurred. In
response, Le does not specifically name any persons or identify any times he opposed activity he believed was unlawful.
Le, instead, generally refers to his responses to Defendants’ First Request for Disclosures, his deposition testimony, and
a January 26, 2016 letter from Le’s counsel to defense counsel. Lee’s disclosures, deposition testimony, and the January
26, 2016 letter do not mention any discussion with Anderson that occurred as recently as February 2015. Defendants’
motion to compel was filed timely but was denied as untimely apparently because Defendants’ discovery requests that
were the subject of the motion were not served before the deadline for completion of discovery, which the Scheduling
Order (Doc. 9) defines as “mean[ing] that the discovery must be sent or done so that the answers or responses are
produced on or before the deadline date herein set forth.” Regardless, this objection is moot because the court determines
that Le’s evidence fails to raise a genuine dispute of material fact that he stepped outside of his role as CHRO in
opposing the classification of Exeter underwriter employees.

Memorandum Opinion and Order – Page 84

The parties acknowledge that the McDonnell Douglas framework applies to Le’s retaliation
claim under the FLSA. The McDonnell Douglas framework applies in analyzing most claims for
alleged violations of federal employment statutes, including FLSA retaliation claims when such
claims are based on circumstantial evidence. Starnes v. Wallace, 849 F.3d 627, 631 (5th Cir. 2017)
(citations omitted); see also Hagan 529 F.3d at 624 (“Although McDonnell Douglas was a Title VII
case, the burden-shifting framework established therein has been adapted and applied to cases under
the [ADEA] and the FLSA.”) (footnotes omitted). Under this framework,
[t]he first question is whether [the plaintiff] has made a prima facie showing of: (1)
participation in a protected activity under the FLSA; (2) an adverse employment
action; and (3) a causal link between the activity and the adverse action. Id. If [he]
has, the burden then shifts to [the employer] to articulate a legitimate, nonretaliatory
reason for the adverse action. Id. Once it has done so, then the burden shifts back to
[the plaintiff] to identify evidence from which a jury could conclude that [the
employer’s] proffered reason is a pretext for retaliation. Id.
Starnes, 849 F.3d at 631-32; Hagan, 529 F.3d at 624. “To engage in protected activity [for purposes
of the FLSA], the plaintiff must make a ‘complaint.’” Starnes, 849 F.3d at 632 (quoting Hagan, 529
F.3d at 626). For an employee’s communication to qualify as a “complaint,”
the “employer must have fair notice that an employee is making a complaint that
could subject the employer to a later claim of retaliation” and the “complaint must
be sufficiently clear and detailed for a reasonable employer to understand it, in light
of both content and context, as an assertion of rights protected by the [FLSA] and a
call for their protection.”
Starnes, 849 F.3d at 632 (quoting Lasater v. Tex. A & M Univ.-Commerce, 495 F. App’x 458, 461
(5th Cir. 2012) (per curiam) (quoting Kasten v. Saint Gobain Performance Plastics Corp., 131 S.
Ct. 1325, 1334-35 (2011)). In addition, the court in Starnes, in discussing its prior opinion in
Hagan, explained that:
such an assertion of rights requires that an employee step outside of his normal job
role and assert a right adverse to the company. Hagan, 529 F.3d at 627. Because a

Memorandum Opinion and Order – Page 85

manager’s job duties often include “being mindful of the needs and concerns of both
sides and appropriately expressing them” when it comes to pay issues, merely voicing
such concerns does not constitute sufficient notice that the manager is asserting
rights. Id. at 628.
Starnes, 849 F.3d at 632 (footnote omitted). This standard is sometimes referred to as the “manager
rule.” Id. at 632 n.4. As Starnes was decided by the Fifth Circuit on February 24, 2017, after
Plaintiff filed his summary judgment response, and confirms the applicability of the manager rule
to FLSA retalations claims like the one asserted by Le, the court determines that the manager rule
applies to his retaliation claim under the FLSA and addresses whether his evidence is sufficient to
raise a genuine dispute of material fact that he stepped outside his normal job role as CHRO in
asserting rights adverse to Exeter.
Plaintiff states as follows in his affidavit regarding his FLSA claim:
In December 2103, I presented to the Exeter Board of Directors an analysis
of what other auto finance companies were doing to comply with the [FLSA]
regarding the non-exempt status of underwriters. The presentation outlined multimillion dollar fines some auto finance companies had to pay by knowingly
misclassifying its underwriters as exempt employees and emphasized the importance
of Exeter needing to correct its own misclassification of employees. In early 2014,
no changes were made to the misclassification and I was informed by Exeter
management that Exeter decided to hold off on making any changes to the status of
underwriters because [it] was the “peak season” for auto loans. According to Exeter
management, changing employee status at that time would cause Exeter to incur
significant expenses by having to pay overtime to its underwriters. I continued to
raise my concerns about this compliance issue to Mr. Floyd, Mr. Richard Frunzi
(EVP of Originations the organization that underwriters reported up through), Mr.
Walt Evans (Exeter’s General Counsel, and later Tom Anderson (new CEO), in
addition to those concerns previously raised to the Board of Directors. In October
2014, Exeter underwent a management overhaul, replacing Mr. Floyd as CEO with
Tom Anderson. Tom Anderson ultimately decided in January 2015 to shut down all
branches across the country and eliminate all underwriting positions in the field so
that, according to him, the problem would “solve itself and go away.” I raised several
complaints to Tom Anderson about this issue as recently as February 2015, prior to
my termination from Exeter.

Memorandum Opinion and Order – Page 86

Pl.’s Summ. J. Resp. App. 118-119. In the deposition testimony cited, Le states: “I brought it to
“Blackstone’s attention and the entire board of directors that we were in violation of misclassifying
our underwriters in the company. So they were aware that we had this open-ended liability that
needed to be addressed.” Id. at 102. Regarding Anderson’s decision to eliminate all under writing
positions, Le testified:
The branch restructuring process that we went through, we had made a
commitment in writing to hundreds of employees what their severance would be. We
reneged on that [in February 2016]. And I pushed back very hard to Tom Anderson
on doing that. . . . I think we announced the RIF sometime in the middle of January.
By the middle of February, the financials were starting to go south, [and] Tom had
the opinion that people had checked out, so he wasn’t prepared to pay what we had
committed to. I said, Tom, we’ve already made the commitment.
So he accelerated the termination of a big portion of our branch network. And
I don’t know if there [were] any WARN Acts that were violated, but I do know that
there was there were payments withheld from people. . . . I’m not a lawyer. I don’t
know if that crosses the line on any Title VII activity, but I am of the opinion it’s
unethical and illegal.
Id. at 108. Le further testified regarding promised severance as follows:
Q.
And what’s illegal about saying, . . . I promise to pay you X amount of
severance, but there no contract signed, and then saying, I looked at the financials and
we can’t afford to pay that much of a generous severance and I’m not going to pay
it? What’s illegal about that?
A.
That’s not what happened. We gave each impacted employee a letter. We
spelled out in detail what they’re eligible for. We have financial spreadsheets telling
each person what their dollar amount is. We didn’t pay that out.
Q.
. . . [D]oes the letter say [Exeter is] contractually obligated to pay you that,
and they sign on the dotted line and say, I’ve got a contract and I agree to do X, Y,
Z in return, in consideration for the payment? Does it say that?
A.
I don’t know what the definition of a contract is, but I know that we had every
employee sign and acknowledge the letter. . . . I am of the opinion there was a breach
of contract. A number of employees reached out to me for help after I was let go, and
. . . there are e-mails . . . between Tom Anderson and myself with me laying out in

Memorandum Opinion and Order – Page 87

very clear English what we were violating and him pushing back and saying, I don’t
care, I still want to do it.
Id. (objections omitted).
This evidence is insufficient to raise a genuine dispute of material fact that Le stepped outside
of his role as CHRO when he notified Defendants regarding his vague “concerns” and “complaints”
about a perceived company compliance issue involving the misclassification of a class of Exeter
employees under the FLSA because, as previously noted, Le acknowledges that, “[i]n his capacity
as CHRO, [h]e was tasked with implementing company policy and monitoring the company’s
compliance with the state and federal laws regulating its activity,” Pl.’s Summ. J. Resp. Br. 18 &
App. 118 (Le Aff. ¶ 4), and he testified his job involved investigating whether the termination of
employees violated various employment statutes. Defs.’ Summ. J. App. 197-98, 213-16. For the
same reason, Le’s evidence regarding unspecified “complaints” to Anderson about eliminating all
underwriting positions and “pushing back” against Anderson’s decision to not pay promised
severance to employees who were let go does not raise a genuine dispute of material fact that Le
stepped outside of his role as CHRO in asserting rights adverse to Exeter.21 As the Fifth Circuit
explained in Starnes, “[b]ecause a manager’s job duties often include being mindful of the needs and
concerns of both sides and appropriately expressing them when it comes to pay issues, merely
voicing such concerns does not constitute sufficient notice that the manager is asserting rights.”
Starnes, 849 F.3d at 632 (citation, internal quotation marks, and footnote omitted). While Le
contends that he stepped outside of his role as CHRO because “the evidence clearly shows that [he]
went above his supervisors/managers’ head to the Board when things were not getting done at the

21

There is also no evidence that Le reasonably believed that Anderson’s decision to not pay promised severance
to employees was an FLSA violation. Instead, according to Le’s own testimony, he believed this decision was immoral
or an illegal breach of contract.

Memorandum Opinion and Order – Page 88

operation level,” he cites to no evidence to support this assertion. Specifically, there is no evidence
that his going to the Board of Directors regarding this or any other matter was outside of his duties
as CHRO.
Moreover, even if the court were to consider Plaintiff’s evidence of the 2013 presentation
submitted in support of his unauthorized April 4, 2018 supplemental summary judgment response,
it does not affect the court’s resolution of Defendants’ summary judgment on Plaintiff’s FLSA
retaliation claim. If anything, the evidence undermines his FLSA retaliation claim because it
supports Defendants’ argument that the December 2013 presentation was given by Le to the Board
of Directors in his role as CHRO of Exeter, and not for purposes of asserting rights adverse to
Exeter. Every page of the five-page Power Point presentation is marked “Attorney Client Privileged
& Confidential,” which indicates that this presentation was intended to provide legal or confidential
advice to Exeter. Id. at 5-9. The title of the presentation is “Credit Manager Pay Classification.”
Pl.’s Supp. Summ. J. Resp. App. 5 (Doc. 82-1). This title indicates that the presentation was intended
to focus on Exeter’s classification of Credit Managers, not underwriters, as Le contends. Although
the presentation refers to underwriters, it does so for purposes of conveying industry trends and the
move by financial institutions toward classifying underwriters as nonexempt employees and explains
that three of the financial institutions listed were sued in class actions involving exemption status
of underwriters and two of these institutions agreed to settle the actions. Finally, the presentation
sets forth the potential incremental overtime cost to Exeter; states that this overall cost amount would
depend on whether it was “Actively Managed”; indicates that “[t]he status of Credit Managers is
unclear under the law”; and explains that, whether Credit Managers are exempt depends on whether
they satisfy the “Administrative Exception” requirements, and sets forth “arguments that Credit

Memorandum Opinion and Order – Page 89

Managers satisfy” this exemption exception. Id. at 6-9. In sum, there is nothing about this
presentation that indicates Le was doing anything other than his job in providing advice to Exeter
and its Board of Directors to ensure the “company’s compliance with . . . federal laws regulating its
activity.” Pl.’s Summ. J. Resp. Br. 18 & App. 118 (Le Aff. ¶ 4). Defendants are, therefore, entitled
to judgment as a matter of law on Le’s FLSA retaliation claim.
d.

FMLA

Defendants move for summary judgment on Plaintiff’s FMLA claim, contending that there
is no evidence Le opposed activity considered unlawful under the FMLA or that any opposition by
him “impacted, in any way, the decision to terminate” his employment. Defs.’ Summ. J. Br. 13.
Defendants contend that Le’s deposition testimony does not establish that he opposed unlawful
activity under the FMLA. Id. (citing Defs.’ Summ. J. App. 85-86).
Plaintiff disagrees and responds as follows:
It is undisputed that Exeter’s management, while RM was on FMLA leave, attempted
to terminate and/or demote RM immediately upon his return and openly discussed
his medical conditions with other individuals. It is undisputed that Mr. Anderson then
directed the termination of RM’s wife, RM, who also worked for Exeter.
It is also undisputed that Plaintiff opposed the firing of KG when KG
requested time off for a medical procedure, over the instructions of Tom Anderson
to do so. It is undisputed that KG requested leave and Exeter’s CEO instructed [him]
to terminate KG so that KG “could then have his surgery whenever he wants . . .”
Plaintiff raised these objections to Tom Anderson (CEO and Board member).
Although Defendants do not directly attack the “causal connection” element of [his]
FLSA or FMLA claim, the temporal proximity between the opposition and firing
could lead a reasonable fact finder to find a causal link.
Pl.’s Summ. J. Resp. 18 (citing Pl.’s Summ. J. App. 118, 120).
For support, Plaintiff relies on his affidavit. The only reference to employee “RM,” who is
identified as “Robert McWhorter” in Plaintiff’s summary judgment response appendix, is located

Memorandum Opinion and Order – Page 90

on pages 119 and 120 of Plaintiff’s appendix, not page 118 cited by Plaintiff. Robert McWhorter’s
wife is identified as “Rosie McWhorter” in Plaintiff’s affidavit. Plaintiff’s reference to “KG”
appears to refer to an employee identified in his affidavit as “KW Gibbons.” The statements
regarding KW Gibbons (“Gibbons”) in Plaintiff’s affidavit are located on page 121 of Plaintiff’s
summary judgment appendix, not page 120. Defendants contend that Plaintiff’s affidavit includes
no facts that would support a finding that he reasonably believed he was opposing an FMLA
violation and, instead, simply sets forth words associated with this claim’s elements.
“The FMLA requires a covered employer to allow an eligible employee up to twelve weeks
of unpaid leave if the employee suffers from ‘a serious health condition that makes the employee
unable to perform the functions of the position of such employee.’” Caldwell v. KHOU TV, 850
F.3d 237, 245 (5th Cir. 2017) (citation omitted). “To ensure employees the right to take leave, the
FMLA prohibits an employer from ‘interfere[ing] with, restrain[ing], or deny[ing] the exercise of
or the attempt to exercise, any right’ provided by the Act.” Id. (quoting 29 U.S.C. § 2615(a)(1)).
Additionally, after a qualifying absence, the employer must restore the employee to the same position
or a position comparable to that held by the employee before the leave, § 2614(a)(1), and may not
penalize an employee for exercising his or her FMLA rights. Hunt v. Rapides Healthcare Sys., LLC,
277 F.3d 757, 763 (5th Cir. 2001) (citing 29 U.S.C. § 2615(a)(1)-(2)), abrogated on other grounds
by Wheat v. Fla. Parish Juvenile Justice Com’n, 811 F.3d 702 (5th Cir. 2016).
The traditional McDonnell Douglas framework applies to claims for retaliatory discharge
under the FMLA. Id. at 705. Under this framework, the employee must first establish a prima facie
case of retaliation by showing that: (1) [he] engaged in protected activity; (2) the employer took a
materially adverse action against [him]; and (3) a causal link exists between [his] protected activity

Memorandum Opinion and Order – Page 91

and the adverse action. Id. (citations omitted). The Fifth Circuit has not yet determined whether the
Supreme Court’s holding in University of Texas Southwestern Medical Center v. Nassar, 570 U.S.
338 (2013), regarding the “heightened ‘but for’ causation standard required for Title VII retaliation
claims applies with equal force to FMLA retaliation claims. Wheat, 811 F.3d at 706. If the employee
establishes a prima facie case, the burden shifts to the employer to articulate a legitimate,
nonretaliatory reason for the alleged retaliatory action taken. Hunt, 277 F.3d at 768. Once the
employer has done so, the burden shifts back to the employee to show “by a preponderance of the
evidence that the [employer’s] reason is a pretext for retaliation.” Id.
Le states in his affidavit that, while Robert McWhorter was on FMLA leave, members of
Exeter’s management talked about terminating his employment when he returned from leave, and
that Robert McWhorter complained to Exeter’s Human Resources department about this FMLA
violation. Le, however, does not contend in response to Defendants’ summary judgment motion or
state in his affidavit that he ever opposed any action by Exeter with respect to Robert McWhorter.
Le, instead, contends in his summary judgment response and states in his affidavit that he
“vehemently opposed” Rosie McWhorter’s termination because he “informed Mr. Anderson that
Exeter needed to go through the standard ‘paired comparison’ process for [her] reduction-in-force
(“RIF”), [and] Mr. Anderson refused to allow it” and “instructed [him] to skip the standard RIF legal
review process.” Pl.’s Summ. J. Resp. App. 119, 120). Le states that he expressed this same
concern to Walt Evans (“Evans”), another board of directors member, and Evans stated in response:
“[O]ur new CEO [Anderson] appears to have a high tolerance for risk so I would do as he asked.”
Id. at 120. Bypassing a standard reduction-in-force legal review or process is not an FMLA

Memorandum Opinion and Order – Page 92

violation, and Le has not pointed to any other evidence that he reasonably believed this to be the case
when he opposed Rosie McWhorter’s termination.
Moreover, Defendants’ evidence shows that Le testified in his deposition that Exeter’s
management was discussing demoting or firing Robert McWhorter because they believed he was
using his FMLA leave to look for another job and asked Le to see whether he could verify whether
Robert McWhorter had started employment with a competitor of Exeter before he quit. Le testified
that validating Robert McWhorter’s employment would require McWhorter’s consent and use of his
social security number. According to Le’s deposition testimony, it was this request by Exeter, after
Robert McWhorter left the company, that he disagreed with and recommended that Exeter not do
it because he believed it would “put the company at risk” and felt it was “inappropriate or unethical
or illegal,” not management’s discussion about possibly firing Robert McWhorter. Defs.’ Summ.
J. App. 85. Le also testified in his deposition that this request was the reason he went to Evans that
elicited the response, “our new CEO [Anderson] appears to have a . . . higher tolerance for risk than
our prior CEO, so . . . I would do as he asked.” Id. Accordingly, Le’s contradictory and conclusory
statement in his affidavit that “I opposed such actions to Mr. Anderson and Mr. Evans” is misleading
and also conflicts with and mischaraterizes his deposition testimony. ” Id. at 119-120.
Le also acknowledged that, after Robert McWhorter left Exeter and before Rosie
McWhorter’s employment with Exeter was terminated, she was accessing Exeter’s Human
Resource’s database using her husband’s “sign-on information” and forwarding records concerning
her husband via e-mail to him at his new job at Capital One. Le testified that he believed Robert
McWhorter had a right to access Exeter’s database to look at his records and disagreed that either
Robert McWhorter or Rosie McWhorter were accessing Exeter’s database to build a case against

Memorandum Opinion and Order – Page 93

Exeter. Le testified that he believed that Exeter’s actions with respect to Robert McWhorter and the
firing of Rosie McWhorter violated the FMLA, and that he had discussions regarding this with
Evans. Le, however, conceded twice during his deposition that he and Evans ultimately agreed that
“this is a little risky but we [were] willing to take on the risk” because he “fe[lt] like it was a team
decision,” and, for this reason, “we agreed to move forward with it.” Id. at 86-87. This evidence
regarding Le’s “internal conversations” with Evans does not rise to the level of protected activity in
the form of opposition to employment practices by Exeter that violated the FMLA and undermines
his conclusory statement in his affidavit that he “vehemently opposed such actions.” Id. at 119.
Accordingly, the evidence with respect to the McWhorters does not support Le’s contentions that
he engaged in activity protected by the FMLA.
Regarding Gibbons, Le states in his affidavit as follows in support of his FMLA retaliation
claim:
In February 2015, Mr. Anderson instructed me to terminate Exeter’s Credit
Analyst, KW Gibbons. Mr. Gibbons requested time off so that he could undergo a
medical procedure. The request was under review when Mr. Anderson told me that
“HR is here to serve the business, not the other way around,” or words to that effect.
Mr. Anderson went on to state that[,] if an employee “wants time off, let him go and
he can then have his surgery whenever he wants,” or words to similar effect. I
objected to Mr. Anderson regarding Mr. Gibbons’ treatment by Exeter.
Pl.’s Summ. J. App. 121. Defendants contend that Plaintiff’s statement that he objected to
Gibbons’s “treatment by Exeter” is conclusory and insufficient to show that Le reasonably believed
he was opposing an FMLA violation. Defs.’ Reply 7-8. The court agrees.
To find that Le engaged in protected activity with respect to Gibbons, the court would have
to make a number of impermissible inferences that are not supported by the threadbare, conclusory
statements in Le’s affidavit, including inferences that Gibbons was entitled to take leave under the

Memorandum Opinion and Order – Page 94

FMLA for the unidentified “medical procedure” or that Le believed this to be the case; that Anderson
instructed Le to deny the FMLA request or fire Gibbons because he requested FMLA leave that he
was entitled to take; and that Le refused to terminate Gibbons or opposed the request to fire him and
did so because he believed that doing so violated the FMLA. Thus, the five sentences in Le’s
affidavit regarding Gibbons are simply insufficient to establish that he opposed an employment
practice by Exeter that violated the FMLA or one that he reasonably believed violated the FMLA.
Accordingly, the court determines that Le’s evidence is insufficient to raise a genuine dispute of
material fact that he engaged in protected activity under the FMLA with respect to Gibbons.
Because Plaintiff has not met his burden of establishing a prima facie case of FMLA
retaliation, Defendants are entitled to judgment as a matter of law on Le’s FMLA retaliation claim,
and the court need not address the parties’ contentions whether a causal link between exists between
the protected activity that Le contends he engaged in and his discharge.
e.

ADEA

Plaintiff did not respond to Defendants’ summary judgment motion with respect to this claim.
When a plaintiff fails to defend a claim in response to a motion to dismiss or summary judgment
motion, the claim is deemed waived or abandoned. See Black v. Panola Sch. Dist., 461 F.3d 584,
588 n.1 (5th Cir. 2006) (concluding that plaintiff’s failure to pursue her “retaliatory abandonment”
claim beyond her complaint or in response to a motion to dismiss constituted abandonment) (citation
omitted); Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1164 (5th Cir. 1983) (explaining that a
plaintiff, “in his opposition to a motion for summary judgment cannot abandon an issue and then .
. . by drawing on the pleadings resurrect the abandoned issue”). Accordingly, Plaintiff’s ADEA claim

Memorandum Opinion and Order – Page 95

is deemed abandoned or waived, and Defendants are entitled to judgment as a matter of law on this
claim.
2.

Breach of Contract

Defendants move for summary judgment on Plaintiff’s claims for breach the PIU Agreement
and breach of a Severance and Non-Compete Agreement, which they believed to be the bases for all
of Plaintiff’s contract claims. In response, Plaintiff contends that he also has a contract claim based
on an agreement to pay him a retention bonus. The court discusses the parties’ contentions regarding
each of these three contract claims separately and, for the reasons herein explained, determines that
Defendants are entitled to judgment on all three contract claims.
a.

PIU Agreement

Defendants contend that they are entitled to summary judgment on Plaintiff’s contract claim
that is based on the written PIU Agreement that was executed by the parties. Defendants contend
that Enzo exercised its call option in accordance with this agreement in determining the fair market
value of Le’s PIUs at the time of the call, and there is no evidence that, at the time of the call, the
PIUs held any other value under the PIU Agreement than the $0 value determined by Enzo.
Plaintiff responds as follows:
Enzo failed to follow the terms of the PIU Agreement by violating sections 4.1 and
4.3 of the agreement as it relates to implementing the Call Option and calculating the fair
market value of said PIUs. The Board of Directors assigned a fair market value of $0.00 to
Plaintiff’s PIUs. P. App. 52-54. This determination was made despite testimony that an
independent auditor, Duff & Phelps, valued the PIUs annually and assigned a different
monetary value. P. App. 15, 114-15, (Evans 66:16-68:25) and (Nall 11:3-6, 29:12-32:6).
Pl.’s Summ. J. Resp. 20.22

22

The deposition testimony for Nall that is cited by Plaintiff actually extends to page 116 of his appendix.

Memorandum Opinion and Order – Page 96

The elements of a breach of contract claim under Texas law are: “(1) the existence of a valid
contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the
defendant; and (4) damages sustained by the plaintiff as a result of the breach.” Smith Int’l, Inc. v.
Egle Grp., LLC, 490 F.3d 380, 387 (5th Cir. 2007) (citation omitted). “A breach of contract occurs
when a party fails to perform an act that it has expressly or impliedly promised to perform.” Case
Corp. v. Hi-Class Bus. Sys., 184 S.W.3d 760, 669-70 (Tex. App.

Dallas 2005, pet. denied). The

court determines as a matter of law what the contract requires of the parties. See Meek v. Bishop
Peterson & Sharp, P.C., 919 S.W.2d 805, 808 (Tex. App.

Houston [14th Dist.] 1996, writ denied).

When the terms of a contract are clear and unambiguous, and the facts concerning breach or
performance are undisputed or conclusively established, the issue of whether the facts show
performance or breach is also decided as a matter of law. Id.
In responding to Defendants’ summary judgment motion, Plaintiff does not argue that the
PIU Agreement is ambiguous, and the court determines that it is not. Plaintiff relies on the March
9, 2015 resolution adopted by Enzo’s Board of Managers and the “Call Notice” letter that Anderson
sent him on March 10, 2015, indicating that Enzo was exercising its “Call Option” right under
section 4.1 of the PIU Agreement to purchase 140,452 of his “Time-Based Profits Interest Units”;
that, pursuant to section 4.3 of the PIU Agreement, the “Called Units” had a fair market value of at
$0; and that, under section 4.5 of the PIU Agreement, he had forfeited to Enzo all PIUs held by him
that were unearned. Pl.’s Summ. J. App. 52-54. As noted, Plaintiff contends that Enzo breached
the PIU Agreement because the $0 value assigned to his earned PIUs differs from the value assigned
to Enzo’s PIUs by Duff & Phelps in various reports, and he asserts that Evans’s and Nall’s
deposition testimony cited by him support this argument.

Memorandum Opinion and Order – Page 97

For the reasons already discussed at length, the court determines that there is insufficient
evidence to raise a genuine dispute of material fact that Enzo violated the PIU Agreement by valuing
Le’s earned PIUs as $0. See supra at pp. 32-35. The deposition testimony of Evans and Nall does
not establish that the value assigned to Le’s PIUs was calculated in a manner other than that called
for in the PIU agreement, and the court would reach the same conclusion, even if it considered
Plaintiff’s supplemental evidence of the Duff & Phelps’s reports. Additionally, because the court
has excluded Plaintiff’s expert testimony regarding PIU damages, he cannot establish that he
suffered any damages as a result of the alleged breach of the PIU Agreement. Accordingly,
Defendants are entitled to judgment as a matter of law on Plaintiff’s breach of contract claim based
on the PIU Agreement.
b.

Retention Agreement

Defendants did not move for summary judgment on any new claim by Plaintiff based on
breach of a retention agreement. This issue was raised by Plaintiff in response to Defendants’
summary judgment motion. Specifically, Plaintiff asserted in response to Defendants’ motion that
“[they] fail to attack Plaintiff’s breach of contract claim on the Retention Bonus. However, it is
undisputed that Plaintiff accepted the offer of the Retention Bonus [sic] and Exeter failed to pay him
as agreed upon.” Pl.’s Summ. J. Resp. 20 (citing Pl.’s Summ. J. App. 120-21). In support of this
claim, Plaintiff relies on his affidavit, in which he states as follows regarding the promised retention
bonus:
[I]n January 2015, Tom Anderson offered me a retention bonus and additional equity
in Enzo . . . in exchange for my agreement to remain with Exeter and take on the
additional tasks of handling the restructuring of the branches and RIF layoffs. Mr.
Anderson communicated to me that I was part of a small group of critical talent that
he and the Board of Directors wanted to retain to help move the business forward. Mr.
Anderson indicated that written documentation was being prepared and that I would

Memorandum Opinion and Order – Page 98

receive the additional compensation and equity grant “soon.” After the conversation,
I sent [him] a “thank you” email recapping our conversation. I accepted the agreement
and I was never provided neither the bonus nor the equity promised by Exeter’s CEO.
Pl.’s Summ J. Resp. App. 121.
Defendants contend that they are entitled to judgment on this contract claim by Plaintiff
because information regarding this claim was not previously disclosed. Specifically, Defendants
argue that Plaintiff’s evidence of damages for this claim should be excluded under Rule 37(c) for
failure to make disclosures required under the court’s Scheduling Order regarding Plaintiff’s
calculation of damages. Defs.’ Summ. J. Reply (citing Defs.’ Summ. J. App. 119, Pl.’s Supp.
Disclosures, dated Nov. 4, 2016). Defendants assert that Plaintiff references his expert’s report in
his supplemental disclosures, but this report does not include any damages calculation for a retention
bonus and makes no mention of a retention bonus. Defendants further assert that, even if the court
considers Plaintiff’s contentions and evidence regarding a retention bonus, his contract claim based
on this theory fails, as “any purported agreement is so indefinite as to make it impossible . . . to fix
the legal obligations and liabilities of the parties.” Defs.’ Summ. J. Reply 8 (quoting Meru v.
Huerta, 136 S.W.3d 383, 391 (Tex. App.

Corpus Christi 2004, no pet)). In addition, Defendants

argue that Plaintiff’s contention that he is entitled to a retention bonus fails as “[he] was terminated,
not retained as an employee.” Defs.’ Summ. J. Reply 8.
i.

Exclusion of Evidence Under Rule 37(c)

Federal Rule of Civil Procedure 26(a) provides that “a party must, without awaiting a
discovery request, provide to the other parties . . . a computation of each category of damages
claimed by the disclosing party.” Fed. R. Civ. P. 26(a)(1)(A)(iii) (emphasis added). Parties are
required to make this initial disclosure at or within fourteen days of the Rule 26(f) discovery

Memorandum Opinion and Order – Page 99

planning conference unless a different time is set by stipulation or court order.” Fed. R. Civ. P.
26(a)(1)(C). The parties conducted their Rule 26(f) conference on February 24, 2016. See Joint
Status Report (Doc. 8). Plaintiff’s initial disclosures setting forth his damages computations were,
therefore, due by March 9, 2016. “A party who has made a disclosure under Rule 26(a) . . . must
supplement or correct [his] disclosure or response . . . in a timely manner if the party learns that in
some material respect the disclosure or response is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the other parties during the discovery
process or in writing.” Fed. R. Civ. P. 26(e)(1)(A).
Plaintiff alleges in his Complaint that Anderson approved a retention bonus for him but does
not indicate whether this is the basis for his breach of contract claim. Plaintiff also indicated in the
parties’ February 24, 2016 Joint Status Report that Anderson had approved a retention bonus for
him. See Joint Status Report 6. Thus, the promised retention bonus is not a new theory. Defendants
correctly note, however, that Plaintiff’s supplemental disclosures do not include any damages
calculation for breach of a retention or bonus agreement. Plaintiff’s First Supplemental Disclosures,
instead, refer to his September 9, 2016 Designation of Expert Witness and Weisheit’s report
computing PIU damages. Defs.’ Summ. J. App. 118-21. Neither these disclosures nor Weisheit’s
September 9, 2016 report mentions damages related to nonpayment of a retention bonus.
Sanctions for violations of Rule 26(a) are addressed in Rule 37(c), which provides: “If a party
fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not
allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial
unless the failure was substantially justified.” See Fed. R. Civ. 37(c)(1). The purpose of this rule is
to prevent an ambush, resulting in surprise or prejudice, of undisclosed or late disclosed evidence.

Memorandum Opinion and Order – Page 100

See Reed v. Iowa Marine & Repair Corp., 16 F.3d 82, 85 (5th Cir. 1994) (finding the basic purpose
of Rule 26 is “preventing prejudice and surprise”). The court applies a four-factor test to determine
whether exclusion of evidence is appropriate under Rule 36(c)(1): (1) the party’s explanation, if any,
for its failure to disclose the information in a timely manner; (2) “the importance of the evidence”;
(3) the potential prejudice to the opposing party if the evidence is admitted; and (4) the availability
of a continuance to cure such prejudice. See CQ, Inc. v. TXU Min. Co., L.P., 565 F.3d 268, 280 (5th
Cir. 2009) (noting that plaintiff’s initial disclosures “failed to properly disclose the ‘computations’
for the various ‘categories’ of damages it now complain[ed] of” and affirming the district court’s
decision to exclude new evidence of damages under Rule 37(c)).
There is no indication that any of Plaintiff’s disclosures, supplemental or otherwise, included
a damages calculation for breach of a retention agreement. The issue regarding retention bonus
damages was raised for the first time in Weisheit’s Second Amended and Supplemental Expert
Report, dated December 13, 2017, which was attached to a supplemental summary judgment
response or surreply by Le filed on December 15, 2017, more than one year after Defendants moved
for summary judgment. Weisheit concludes, without any explanation, that Le is entitled to $137,500
or 50% of his annual salary of $275,000 for the lost retention bonus. See Pl.’s Supp. Summ. J. Br.
App. 6 (Doc. 78-1). Weisheit does not include any amount for promised additional equity referenced
in Le’s affidavit. Leave of court was not sought to file this supplemental response or surreply to
Defendants’ summary judgment motion, and Le’s prior request for a continuance under Rule 56(d)
was not sought to obtain evidence in support of his contract claim based on a retention agreement.
As previously explained, Weisheit’s report was also amended without leave of court
approximately fifteen months after expiration of the expert designation deadline in the court’s

Memorandum Opinion and Order – Page 101

scheduling order. Weisheit states that the information in this report regarding a lost retention bonus
and additional equity is based on Le’s deposition testimony. Le, however, was deposed a year earlier
on November 14, 2016. If the matters in Weisheit’s report are based on Le’s testimony, this
information was known by Le all along and should have been included in his initial disclosures and
provided to Weisheit before the September 9, 2016 expert designation deadline expired.
Le has not offered any justification for his failure to disclose timely his damages calculations
for his contract claim based on a retention agreement. His disregard for the court’s scheduling order
and lengthy delay in disclosing his damages for this claim long after expiration of the disclosure and
expert designation deadlines and approximately one year after Defendants moved for summary
judgment is inexcusable. Without evidence of damages, this contract claim cannot survive, so it is
clearly important to Plaintiff, but this, as explained, does not singularly override or excuse the
untimely disclosure. See Hamburger , 361 F.3d at 883. The lateness of the disclosure would also
require the court, out of fairness to the defense, to create a new briefing scheduling, reopen discovery
and expert deadlines, and further delay the trial of this case, which is already more than three years
old. Exclusion of Le’s evidence of damages, including Weisheit’s testimony, for his contract claim
based on breach of a retention agreement is, therefore, appropriate and hereby excluded. Without
evidence of damages, this breach of contract claim cannot survive. Smith Int’l, Inc., 490 F.3d at 387
(explaining that damages sustained by the plaintiff as a result of the breach is an essential element
of a breach of contract claim). Even if this evidence is not excluded, Plaintiff’s contract claim based
on a retention agreement still fails as a matter of law for indefiniteness as argued by Defendants.23

23

In arguing that they are entitled to summary judgment on this claim, Defendants do not cite to any new
evidence in their reply. Moreover, although Defendants did not anticipate that Plaintiff was asserting a claim based on
a retention bonus and did not move initially for summary judgment on this claim, they were entitled to address in their
reply the arguments and evidence regarding this claim that Plaintiff included in his summary judgment response. For

Memorandum Opinion and Order – Page 102

ii.

Indefiniteness

To be enforceable, a contract must “be sufficiently definite in its terms so that a court can
understand what the promisor undertook.” T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d
218, 221 (Tex. 1992) (citation omitted). When a material or essential term is “open for future
negotiation, there is no binding contract.” Id. (citation omitted). Every “contract should be
considered separately to determine its material terms.” Id. (citation omitted). In determining whether
an oral agreement is enforceable under Texas law, court looks to the parties’ communications and
the circumstances surrounding those communications. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97
S.W.3d 631, 636 (Tex. App.

Houston [1st Dist.] 2002, pet. denied) (citing Copeland v. Alsobrook,

3 S.W.3d 598, 605 (Tex. App.

San Antonio 1999, pet. denied)). The terms of the oral agreement

“must be expressed with sufficient certainty so that there will be no doubt as to what the parties
intended.” Prime Prods., Inc., 97 S.W.3d at 636 (citing Copeland, 3 S.W.3d at 605). “[T]he terms
of an oral contract must be clear, certain, and definite.” Gannon v. Baker, 830 S.W.2d 706, 709 (Tex.
App.

Houston [1st Dist.] 1992, writ denied).
An oral contract is not enforceable if the terms are “so indefinite that it is impossible for a

court to fix the legal obligations and liabilities of the parties.” Id. (citing Moore v. Dilworth, 142
Tex. 538, 179 S.W.2d 940, 942 (1944); and University Nat’l Bank v. Ernst & Whinney, 773 S.W.2d
707, 710 (Tex. App.

San Antonio 1989, no writ). A lack of definiteness precluding the existence

of an enforceable contract can “concern the time of performance, the price to be paid, the work to

these reasons, the court determines that it need not give Plaintiff an opportunity to respond to Defendants’ contentions
regarding this claim. The court also notes that it was unable to find any discussion of Defendants’ contentions regarding
this claim in any of the supplemental summary judgment responses that were subsequently filed by Plaintiff and
reasonably infers from this that Plaintiff would have had nothing further to say regarding this claim, even if given the
opportunity.

Memorandum Opinion and Order – Page 103

be done, the service to be rendered, or the property to be transferred.” Gannon, 830 S.W.2d at 709
(citation omitted). An employee’s compensation and duties are generally considered to be essential
terms of an employment contract. Conner v. Lavaca Hosp. Dist., 267 F.3d 426, 433 (5th Cir. 2001)
(citing Farrar v. Colorado Indep. Sch. Dist., 444 S.W.2d 204 (Tex. Civ. App.

Eastland 1969, writ

ref’d n.r.e.), and noting that “board minutes failed to set out terms of employment contract such as
‘compensation, the duties to be performed, [and] the working hours’”; and Martin v. Credit
Protection Ass’n, 793 S.W.2d 667, 669 (Tex. 1990), and summarizing the court’s holding that a
“covenant not to compete was not ancillary to an employment contract [as a matter of law] where
contract ‘did not contain any terms or provisions usually associated with an employment contract
such as title, position, duration of employment, compensation, duties or responsibilities’”).
Moreover, “[a] party may not recover damages for breach of contract if those damages are remote,
contingent, speculative, or conjectural.” CQ, Inc., 565 F.3d at 278 (quoting City of Dallas v. Villages
of Forest Hills, L.P., Phase I, 931 S.W.2d 601, 605 (Tex. App.

Dallas 1996, no writ)). “Whether

an agreement is legally enforceable or binding is a question of law.” America’s Favorite Chicken
Co. v. Samaras, 929 S.W.2d 617, 622 (Tex. App.

San Antonio 1996, writ denied) (citation

omitted). Likewise, “whether an agreement fails for indefiniteness is a question of law” for the court
to decide. Id. (citation omitted).
The only summary judgment evidence relied on by Le to establish the existence of an oral
agreement to pay him a retention bonus and additional equity is his affidavit. The essence of this
contract claim is Exeter’s verbal promise to compensate Le in return for his agreement to remain
with Exeter and take on “additional tasks” associated with restructuring the company’s branches and
the RIF layoffs. The court, therefore, concludes that compensation by Exeter and the duties to be

Memorandum Opinion and Order – Page 104

performed by Le are essential terms to the agreement. These terms as summarized in Le’s affidavit,
however, are not expressed with “sufficient certainty so that there will be no doubt as to what the
parties intended.” Prime Prods., Inc., 97 S.W.3d at 636 (citing Copeland, 3 S.W.3d at 605). Le’s
affidavit contains no information regarding the amount of the compensation to be paid him, whether
in the form of a bonus or additional equity, or any information regarding the duties or “additional
tasks” Le was expected to perform in exchange. The court, therefore, concludes that the agreement
is not enforceable under Texas law. Additionally, Le’s statement that written documentation
regarding this oral agreement was being prepared indicates that these material or essential terms were
left open and unresolved, and Le does not state that documentation of any kind was ever actually
prepared. Thus, no binding contract was formed. See T.O. Stanley Boot Co., 847 S.W.2d at 221
(citation omitted).
For all of these reasons, Defendants are entitled to judgment as a matter of law on Plaintiff’s
breach of contract claim based on an oral agreement to pay him a retention bonus and additional
equity.
c.

Severance Agreement

Regarding this claim, Defendants assert that “Exeter offered its key employees the
opportunity to receive severance pay upon termination without cause, if the employee executed
Exeter’s Severance and Non-Compete Agreement”; and that Plaintiff was advised when he was hired
that he would be eligible for severance under the terms of the Severance and Non-Compete
Agreement when he received his July 25, 2013 offer letter,” which states: “As a Key Employee, you
will qualify for a Severance and Non-Compete Agreement that pays, subject to certain terms and
conditions, an aggregate amount equal to 150% of the base salary and bonus paid to the Key

Memorandum Opinion and Order – Page 105

Employee during the one-year period immediately preceding termination without cause.” Defs.’
Summ. J. Br. 17 (quoting Defs.’ Summ. J. App. 7) (emphasis added by Defendants). Defendants
maintain that, when Le subsequently refused to execute the Severance and Non-Compete Agreement,
Exeter was relieved of any obligation under that agreement to make a severance payment to him, and
Le cannot now enforce the provisions of that agreement that are favorable to him without agreeing
in return to be bound by the non-competition terms. Defendants further assert that the “offer letter
specifically provided Plaintiff could qualify for severance under the Severance and Non-Compete
Agreement

a specific document, the title of which is capitalized in the offer letter.” Defs.’ Summ.

J. Br. 19 (citing Lang v. MBank Dallas, 756 S.W.2d 811, 812-13 (Tex. App.

Dallas, 1988, no writ),

for the proposition that Le, unlike the plaintiff in Lang, was put on notice of a formal written
severance agreement because the name of the agreement in the offer letter was capitalized, as
opposed to all lower case letters). In addition, Defendants argue that, to qualify for a severance
payment, Le had to execute the Severance and Non-Compete Agreement and comply with all terms
and conditions of that agreement, not just the provisions he liked.
Plaintiff disagrees that the intention of the parties was that he would only be afforded an
opportunity to qualify for severance and asserts that an e-mail from Exeter’s CEO to him on July 18,
2013, and the subsequent letter offer, dated July 25, 2013, do not state that he would be required to
execute a separate severance agreement to qualify for severance; rather, according to Le, the offer
letter, which he refers to as the “Letter Agreement” was a binding contract that entitled to him
receive a severance payment without executing the Severance and Non-Competition Agreement:
It is undisputed that Exeter failed to pay Le the Severance Component and the
Retention Bonus and that Enzo failed to pay Le the Profits Interest Component of his
agreed[-]upon compensation. [P. App. 116-120]. Defendants argue that Plaintiff is
precluded from claiming the Severance Component because Plaintiff was only

Memorandum Opinion and Order – Page 106

afforded an “opportunity” to receive severance under the Letter Agreement, and that
was contingent upon execution of the New Severance Agreement. Floyd represented
to Plaintiff that he would receive a “Standard severance and non-compete agreement:
150% of last 12 months’ base salary plus bonus payable over 18 months,” (P. App.
50-51) and Floyd reiterated that Plaintiff would qualify for that Severance Component
in the Letter Agreement (P. App. 42-43). At no point did Floyd represent, in the Letter
Agreement or elsewhere, that Le would be required to execute a separate New
Severance Agreement prior to receiving his Severance Component. P. App. 117. If
there was any ambiguity as to the interpretation of that language, such language would
be construed against the drafter (in this case Exeter).
Pl.’s Summ. J. Resp. 19 (citations to Defs.’ Br. and footnote omitted).
In an affidavit, Le similarly states, “At no point, prior to my employment with Exeter, did
Mr. Floyd ever indicate to me that I would be required to execute a separate agreement with the
additional, undisclosed terms, such as an arbitration provision, non-solicitation provision and a full
release of any future claims, prior to qualifying for the 18-month severance.” Pl.’s Summ. J. Resp.
App. 118. Le also states that Floyd made “representations” to him during his recruitment, including
“representations regarding my severance from Exeter should I be terminated at a future date from
Exeter without cause. [He] stated that upon my employment, I would be eligible for Exeter’s 18month severance package.” Id. Le does not indicate whether these representations were verbal
representations that were made in addition to what was represented in Floyd’s July 18, 2013 e-mail
and July 25, 2013 offer letter that Le contends support his position that the offer letter constitutes
an enforceable contract entitling him to severance without any further action by the parties other than
his acceptance.
It is undisputed that Le refused to execute the Severance and Non-Compete Agreement that
was provided to him on December 6, 2013, and Le does not contend that he is entitled to severance
under that agreement. Accordingly, resolution of Defendants’ summary judgment motion on this
claim requires the court to determine whether, as Le contends, the July 25, 2013 letter offer

Memorandum Opinion and Order – Page 107

constitutes a binding agreement that obligated Exeter to pay him severance upon his acceptance of
the offer without requiring something additional, such as executing a separate agreement that
includes a non-compete provision or other terms and conditions not referenced in the offer letter.
After meeting with Floyd, Le sent an e-mail to Floyd on July 17, 2013, stating: “I []
appreciate the confidence you and the leadership team are showing by extending me an offer to join
Exeter. I’m very excited about the opportunity and eager to finalize the details so we can start the
onboarding process. . . . Would you please send me the legal document outlining the transactional
payout details you referenced? Also, . . . it would be helpful to see the written offer as well.” Pl.’s
Summ. J. Resp. App. 51 (emphasis added). This e-mail by Le indicates that, regardless of what may
have been discussed during his face-to-face meeting with Floyd, Le recognized that the details of any
offer or agreement regarding his employment with Exeter and compensation package had not been
finalized. Floyd responded by e-mail the next day stating, and outlining Exeter’s offer:
Binh,
Here’s what I can do:
Title: EVP & CHRO
Base Salary: $265,000
Bonus Target: 50%

Any bonus awarded by the board for 2013 will be paid as if

employed all of 2013, i.e., 100%of any bonus awarded for FY 2013
Signing Bonus: $100,000

Payable 50% August 1, 2013 and 50% payable August

1, 2014
Participation in Executive Team profits Interest pool
Standard severance and non-compete agreement: 150% of last 12 months’ base
salary plus bonus payable over 18 months
I will put this in the form of a formal offer but wanted to get the outline in front of
you today. I’ll have Walt send you the outline of the profits Interest structure, then
we can have a more detailed follow-up discussion about what the upside could be

Memorandum Opinion and Order – Page 108

given certain exit values. . . . I hope the comp structure outlined above meets your
needs and we can move forward on to finalizing your start date soon.
Id. at 50. The July 25, 2013 formal offer letter included additional information regarding each of the
forgoing matters, but it also indicated that certain aspects of the compensation package being offered
were subject to other agreements, programs, and terms and conditions not included or detailed in the
offer letter. For example, the offer letter indicates that the 50% bonus would be issued “according
to a bonus program approved by the Compensation Committee and based upon company and
individual performance.” Id. at 42. PIUs were “subject to vesting, performance and other terms and
conditions set forth in a management [PIU] agreement.” Id. Eligibility for health, dental, and life
insurance coverage and a 401(k) plan was “subject to plan terms” and “applicable waiting periods.”
Id. Regarding severance, the offer letter states: “As a Key Employee, you will qualify for a
Severance and Non-Compete Agreement that pays, subject to certain terms and conditions, an
aggregate amount equal to 150% of the base salary and bonus paid to the Key Employee during the
one-year period immediately preceding termination without cause.” Id. On July 26, 2013, Le signed
the offer letter, indicating his acceptance of the “provisions of this offer of employment.” Id. at 43.
Floyd’s e-mail and offer letter both reference severance in the context of a severance and
non-compete agreement. In other words, Floyd’s written correspondence makes clear that Le would
qualify for an agreement that included both severance and non-compete provisions, and that Le
would be paid the stated severance under the agreement, subject to certain terms and conditions.
Le’s acknowledges that “Floyd represented . . . he would receive a “Standard severance and
non-compete agreement,” Pl.’s Summ. J. Resp. 19, but contends that this language should be
construed to mean that he would qualify to receive severance or the “Severance Component” of
Exeter’s offer, if accepted by him. His interpretation, however, ignores the “non-compete” and

Memorandum Opinion and Order – Page 109

“agreement” language in Floyd’s e-mail and offer letter. His contention that he was never told that
his qualifying for severance would require him to execute a separate agreement or agree to
“additional, undisclosed terms, such as an arbitration provision, non-solicitation provision and a full
release of any future claims” also ignores express language in the offer letter that says severance
under a “Severance and Non-Compete Agreement” would be paid “subject to certain terms and
conditions.” Pl.’s Summ. J. Resp. App. 42.
As previously noted, the issue of whether an agreement is legally enforceable and fails for
indefiniteness is a question of law. America’s Favorite Chicken Co., 929 S.W.2d at 622 (citation
omitted). “[T]o be legally binding, a contract must be sufficiently definite in its terms so that a court
can understand what the promisor undertook.” T.O. Stanley Boot Co., 847 S.W.2d at 221 (citing
Bendalin v. Delgado, 406 S.W.2d 897, 899 (Tex. 1966)). A court may not create a contract where
none exists by interpolating or eliminating material terms. Dahlberg v. Holden, 238 S.W.2d 699,
701 (1951). Moreover, Texas courts follow the general rule that “contracting parties’ agreement [to]
agree upon the terms of a contract, if they can [at a later date], cannot be made the basis of a cause
of action.” Fischer v. CTMI, LLC, 479 S.W.3d 231, 242 (Tex. 2016) (quoting Radford v. McNeny,
104 S.W.2d 472, 474 (Comm’n App. 1937)) (internal quotation marks omitted). The court in
Radford explained the reason for the rule regarding agreements to contract in the future as follows:
[U]nless an agreement to make a future contract be definite and certain upon
all the subjects to be embraced, it is nugatory. A contract between two persons,
upon a valid consideration, that they will at some specified time in the future, at the
election of one of them, enter into a particular contract, specifying its terms, is
undoubtedly binding, and, upon a breach thereof, the party having the election or
option may recover as damages what such particular contract to be entered into
would have been worth to him, if made. But an agreement that they will in the
future make such contract as they may then agree upon amounts to nothing. An
agreement to . . . agree upon the terms of a contract, if they can, cannot be made
the basis of a cause of action. There would be no way by which the court could

Memorandum Opinion and Order – Page 110

determine what sort of a contract . . . would result. . . , no rule by which the court
could ascertain whether any, or, if so, what damages might follow a refusal to enter
into such future contract. So, to be enforceable, a contract to enter into a future
contract must specify all its material and essential terms, and leave none to be agreed
upon as the result of future negotiations. * * * Where a final contract fails to express
some matter, as, for instance, a time of payment, the law may imply the intention of
the parties, but, where a preliminary contract leaves [open] certain terms to be agreed
upon for the purpose of a final contract, there can be no implication of what the
parties will agree upon.
Radford, 104 S.W.2d at 474-76. Thus, parties “may agree on some of the contractual terms,
understanding them to be an agreement, and leave other contract terms to be made later. It is only
when an essential term is left open for future negotiation that there is nothing more than an
unenforceable agreement to agree.” Oakrock Exploration Co. v. Killam, 87 S.W.3d 685, 690 (Tex.
App.

San Antonio 2002, pet. denied) (citing T.O. Stanley Boot Co., 847 S.W.2d at 221) (internal

citations omitted). It, therefore, follows that “[a] party cannot accept an offer to form a contract
unless its terms are reasonably certain.” Kelly v. Rio Grande Computerland Grp., 128 S.W.3d 759,
766 67, 2004 WL 309292 (Tex. App.

El Paso 2004, no pet.); Camden Fire Ins. Co. v. Hill, 276

S.W. 887, 891-92 (Tex. Comm’n App. 1925) (concluding that no contract was ever formed because
“Hill’s so-called ‘contract,’ expressly made conditional in the beginning, remained contingent and
incomplete to the end. The pleadings show only an offer to make a contract so far as Hill and Denny
were concerned, and an acceptance in fact by the company. The proof shows the offer to make the
contract, and failure to complete it, and expressly negatives acceptance in fact. . . . the proof shows
the minds of the parties never met in a present agreement of insurance.”).
“An agreement that does not create any reciprocal duties is fatally defective.” D&R
Constructors, Inc. v. Texas Gulf Energy, Inc., 01-15-00604-CV, 2016 WL 4536959, at *12 (Tex.
App.

Houston [1st Dist.] Aug. 30, 2016, pet. denied) (citing Fiduciary Fin. Servs. of Sw., Inc. v.

Memorandum Opinion and Order – Page 111

Corilant Fin., L.P., 376 S.W.3d 253, 257-58 (Tex. App.

Dallas 2012, pet. denied) (“[T]he [letter

of intent] creates no specific duties to be performed by Mr. Welch in return for his $250,000 salary.
This provision clearly contemplates a future agreement as it states he ‘will receive’ an agreement.
Further, requiring future negotiation indicates that the parties are only agreeing to make a future
contract. An agreement leaving material terms to be agreed upon later is not definite and specific as
to material and essential terms and is, therefore, unenforceable. The trial court has no authority to
ask the jury to supply an essential term in the contract that the parties were unable to complete by
mutual agreement.”) (citations omitted). In construing an agreement, courts may consider evidence
of circumstances surrounding its execution to determine “the parties’ intent as expressed in the
agreement, but [they] must determine the parties’ expressed intent” but may not consider extrinsic
evidence for purposes of showing what “the parties probably meant, or could have meant, [or]
something other than what their agreement stated.” First Bank v. Brumitt, 519 S.W.3d 95, 110 (Tex.
2017) (citation omitted).
Here, Floyd’s offer letter includes the amount of severance to be paid but clearly indicates
that any such payment would be made pursuant to an agreement to pay severance subject to certain
terms and conditions that are not included in the offer letter. The title of the agreement (Severance
and Non-Compete Agreement) indicates the parties’ intent to condition severance on noncompetition
but does not include any details regarding Le’s non-compete obligations. Thus, while the offer letter
clearly makes payment of severance contingent on Le’s satisfying noncompetition and other terms
and conditions, it does not indicate what these terms and conditions will be. As Exeter’s duty in the
offer letter to pay severance is contingent on unspecified terms and conditions to be included in a
future Severance and Non-Compete Agreement, the court concludes that the offer letter, with respect

Memorandum Opinion and Order – Page 112

to severance, is nothing more than an “unenforceable agreement to agree,” Musallam v. Ali, 560
S.W.3d 636, 639 (Tex. 2018), because it is not sufficiently definite for the court to determine the
circumstances under which Exeter undertook as the promisor to pay severance. See T.O. Stanley
Boot Co., 847 S.W.2d at 221. Accordingly, the offer letter is unenforceable and cannot form the basis
for Le’s contract claim to recover severance, and Defendants are entitled to judgment as a matter of
law on this claim.
3.

Quantum Meruit

Defendants contend that Plaintiff’s quantum meruit claim fails as a matter of law because,
under Texas law, he cannot recover in quantum meruit for severance pay that is governed by an
express contract. In addition, Defendants assert that Plaintiff cannot recover under a theory of
quantum meruit because he caused the severance agreement to fail by refusing to execute it. Defs.’
Summ. J. Br. 20 (citing Truly v. Austin, 744 S.W.2d 934, 938 (Tex. 1988), for the proposition that
a “plaintiff cannot recover under quantum meruit when he caused the agreement to fail”).
Plaintiff responds that this argument:
ignores the oral agreements reached between the parties and . . . agreement on other
unpaid components of compensation such as the Retention Bonus. . . . [T]he various
oral agreements made by Floyd and Plaintiff during the courtship process arise to the
level of a quantum meruit claim. Further, no writing evidences the agreement
between the parties as to the Retention Bonus.
Pl.’s Summ. J. Resp. 20. For support, both parties rely on Heldenfels Brothers, Incorporated v. City
of Corpus Christi, 832 S.W.2d 39 (Tex. 1992).
As explained by the court in Heldenfels, quantum meruit is an equitable theory of recovery
based on an implied agreement to pay for benefits received. Id. at 41. “‘The purpose of this common
law doctrine is to prevent a party from being ‘unjustly enriched’ by ‘retain[ing] the benefits of the

Memorandum Opinion and Order – Page 113

. . . performance without paying anything in return.’” Hill v. Shamoun & Norman, LLP, 544 S.W.3d
724, 732 (Tex. 2018) (quoting Truly, 744 S.W.2d at 938). The right to recover under a theory of
quantum meruit is independent of any contract, Vortt Expl. Co. v. Chevron U.S.A., Inc., 787 S.W.2d
942, 944 (Tex. 1990), because “[r]ecovery on an express contract and on quantum meruit are
inconsistent.” Woodard v. Southwest States, Inc., 384 S.W.2d 674, 675 (Tex. 1964). The existence
of a valid, express contract that “covers the subject matter of the parties’ dispute, therefore, generally
precludes recovery under a “quasi-contract theory.” Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d
671, 684 (Tex. 2000). To recover based on a theory of quantum meruit, the plaintiff must prove:
(1) valuable services were rendered or materials furnished;
(2) for the person sought to be charged;
(3) those services and materials were accepted by the person sought to be charged,
and were used and enjoyed by him; and
(4) the person sought to be charged was reasonably notified that the plaintiff
performing such services or furnishing such materials was expecting to be paid by
the person sought to be charged.
Hill, 544 S.W.3d at 732-33 (citing Vortt Expl. Co., 787 S.W.2d at 944). “The measure of damages
for recovery under a quantum-meruit theory is the reasonable value of the work performed and the
materials furnished.” Hill, 544 S.W.3d at 733 (citation omitted). Evidence of the reasonable value
of services or work performed is, therefore, required to recover based on a theory of quantum meruit.
M.J. Sheridan & Son Co., Inc. v. Seminole Pipeline Co., 731 S.W.2d 620, 625 (Tex. App.

Houston

[1st Dist.] 1987, no writ); see also Air Conditioning, Inc. v. L.E. Travis & Sons, Inc., 578 S.W.2d
554, 556 (Tex. Civ. App.

Austin 1979, no writ) (distinguishing proof required for contract damages

versus quantum meruit damages); Four Points Bus., Inc. v. Rojas, 2013 WL 4676314, *4 (Tex.
App.

Houston [1st Dist.] 2013, no pet. hist.).

Memorandum Opinion and Order – Page 114

Summary judgment based on Defendants’ argument regarding severance is not appropriate
because the court has determined that no valid written severance agreement exists, and Plaintiff is
entitled to pursue alternative legal theories. Additionally, Defendants did not address in their reply
Plaintiff’s contention that his quantum meruit claim is also based on a retention bonus.24 The court,
nevertheless, has concerns regarding the viability of Plaintiff’s quantum meruit claim and, in
particular, whether he can satisfy the first element of his quantum meruit claim
were rendered or materials furnished

valuable services

or establish the reasonable value of those services or

materials. It appears he is seeking to hold Defendants to an alleged promise to pay severance while
avoiding, for example, a reciprocal noncompetition duty that can be reasonably inferred from Floyd’s
e-mail and the letter offer. Le also appears to be seeking to recover a retention bonus, even though
there is no indication he performed any “additional tasks of handling the restructuring of the
branches and RIF layoffs” between January 2015 and February 23, 2015, or did anything other than
what he was already being compensated to do under his annual salary as Exeter’s CHRO during this
time. Pl.’s Summ J. Resp. App. 121. Moreover, because it agreed with Defendants that Plaintiff is
precluded from presenting any evidence of damages regarding the unpaid retention and additional
equity for failure to disclose it, the court questions whether Plaintiff can establish the reasonable
value of any work performed by him, even if he can establish that he partially performed.
Accordingly, the court will deny Defendants’ summary judgment motion as to Plaintiff’s
quantum meruit claim, but it believes that further briefing regarding this claim may resolve it or, at
a minimum, provide the court with a better understanding of the parties’ positions of what remains
of this claim for trial. Accordingly, any response by Plaintiff to this order and sua sponte motion by

24

Le does not identify any other “oral agreements” other than the retention and severance agreements, so the
court’s analysis focuses on these alleged agreements.

Memorandum Opinion and Order – Page 115

the court shall be filed by April 14, 2019, by 5 p.m., and any reply by Defendants shall be filed by
April 28, 2019, by 5 p.m. Plaintiff’s response and Defendants’ reply shall not exceed seven pages
in length exclusive of signature and certificate of service pages, and citations to evidence must be
limited to the evidence in the existing summary judgment record, that is, the evidence previously
submitted by the parties in support of and in opposition to Defendants’ summary judgment motion,
not including any supplemental materials filed by either party after Defendants filed their January
20, 2017 reply in support of the summary judgment motion.
4.

Fraud

Defendants contend that they are entitled to summary judgment on all of Plaintiff’s fraud
claims.
a.

Value of PIUs

Defendants argue that none of the representations that form the bases of this fraud claim
based on the PIU value constitute actionable fraud and, instead, amount to nothing more than vague
statements of opinion, probability, proposals, or future expectations that do not constitute actionable
fraud, and any reliance by Le on such indefinite statements is not justified under Texas law.
Defendants assert that Le recognizes that statements by “Mr. Frunzi and Mr. Wardle” about the
company’s financial condition were these gentlemen’s “opinion,” which does not rise to the level
of actionable fraud. Defs.’ Summ. J. Br. 23. Defendants contend that there is no evidence that
Exeter’s representations were false when made and made with the intent to deceive Le. In addition,
Defendants assert that the evidence in this case establishes that Plaintiff did not rely on statements
by Floyd or information provided to him regarding the potential PIU value during his recruitment
before joining Exeter.

Memorandum Opinion and Order – Page 116

Plaintiff responds as follows regarding his fraud claim based on value of the PIUs:
Defendants argue that Floyd’s []representations regarding the PIUs were not
something Plaintiff “could legitimately rely upon” because (1) Plaintiff
acknowledged the risk associated with the PIUs, (2) the Profits Interest Spreadsheet
is only an “example” only “based on current financials,” and (3) Plaintiff, himself,
valued the PIUs at zero. However, . . . Floyd represented to Plaintiff that the company
was on track to hit its financial target. P. App. 79-80, 87 (Le 36:23-37:2, 37:3-20,
78:25-79:21). . . . Floyd presented Plaintiff with the Profits Interest Spreadsheet,
which represents to be “based on current financial models.” [see Profits Interest
Spreadsheet] . . . Floyd told Plaintiff to “trust the process” and that Plaintiff would
have all his questions answered after he joined Exeter. P. App. 84 (Le 53:17-54:9).
. . . [A]s soon as Plaintiff joined the company and sat in on the financial review
meetings, none of those statements were correct. P. App. 88 (Le 100:6-25). Floyd did
not know how the PIU program worked, yet he still held out to Plaintiff what
“current financials” would earn Plaintiff during his recruitment. P. App. 82-83 (Le
44:16-23, 52:17-53:16). When Walt Evans testified, he even stated that he did not
believe anybody could value the PIUs. P. App. 17 (Evans 110:23-111:4). So at the
very least, Floyd “made the representation recklessly, as a positive assertion, and
without knowledge of its truth.”
Pl.’s Summ. J. Resp. 22.
To establish a claim for fraud under Texas law, the plaintiff must show:
(1) that a material representation was made; (2) the representation was false; (3)
when the representation was made, the speaker knew it was false or made it
recklessly without any knowledge of the truth and as a positive assertion; (4) the
speaker made the representation with the intent that the other party should act upon
it; (5) the party acted in reliance on the representation; and (6) the party thereby
suffered injury.
Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 337 (Tex. 2011)
(quoting Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex. 2009) (per
curiam)).
Instead of coming forward with evidence that Floyd or others at Exeter knowingly made false
representations, Le argues that the evidence relied on by him establishes that “Floyd made the
representation [regarding the PIUs and the company’s current financials] “recklessly, as a positive

Memorandum Opinion and Order – Page 117

assertion, and without knowledge of its truth.” “If the plaintiff proves the defendant’s recklessness
in making a positive assertion, then he is not required to prove that the defendant knew the
representation was false when he made it.” J. L. Williams & Co., Inc. v. Robert E. McKee, Inc., 612
S.W.2d 649, 651 (Tex. Civ. App.

Dallas 1981, writ ref’d n.r.e.). Le, however, fails to address

Defendants argument regarding reliance, and he points to no evidence to rebut the evidence cited by
Defendants to establish that he recognized there was a lot of risk with the PIUs and, thus, did not
act in reliance on any such representations. See Defs.’ Summ. J. Mot. 21-23. As a result, Le has
failed to raise a genuine dispute of material fact that he acted in reliance on the representations that
form the basis for this fraud claim based on the value of PIUs.
b.

Severance

Defendants argue that Floyd’s representations regarding severance cannot support a claim
by Le based on fraud because the offer letter that Floyd provided to Le in July 2013 regarding his
eligibility for severance clearly indicated that his qualifying for a Severance and Non-Compete
Agreement was subject to certain terms and conditions.
Le disagrees and argues in response as follows regarding the “Severance Component”:
Floyd stated that upon [his] employment, he would be eligible for Exeter’s 18-month
severance package and [he] would be entitled to receive it should he be terminated
without cause. P. App. 121. At no point, prior to [his] employment with Exeter, did
Mr. Floyd ever indicate to him that [he] would be required to execute a separate
agreement with additional, undisclosed terms, such as an arbitration provision, a
non-solicitation provision and waiver of rights, prior to qualifying for the 18-month
severance. P. App. 117.
Id. at 22-23. Le contends that Exeter, therefore, is liable for common law fraud, as well as fraud by
nondisclosure and fraudulent inducement.

Memorandum Opinion and Order – Page 118

The court’s prior determination that the offer letter, with respect to severance or “Severance
Component, or what Le refers to as the “Letter Agreement,” is an “unenforceable agreement to
agree” precludes, as a matter of law, the fraud claims asserted by Le, as he is attempting to enforce
an otherwise unenforceable contract and recover the benefit of an unenforceable bargain. Haase v.
Glazner, 62 S.W.3d 795, 798-99 (Tex. 2001). Because “[f]raudulent inducement . . . arises only in
the context of a contract and requires the existence of a contract,” the court’s prior ruling also
forecloses any fraudulent inducement claim by Le based on an unenforceable severance agreement,
and it is undisputed that Le refused to execute or be bound by the written Severance and NonCompete Agreement offered. Id. Moreover, there is no evidence that Floyd’s representations
regarding severance were knowingly false or made recklessly without knowledge of the truth of the
matters asserted.
c.

Financial Services Market

In response to Defendants’ summary judgment motion, Le also contends that he has a fraud
claim based on “financial services market” representations:
Exeter’s representations regarding the financial services market, generally, w[ere]
also fraudulent, as Plaintiff learned upon his employment, which is evidenced by the
firing of Exeter’s CFO shortly thereafter. Defendants’ argument that none of these
statements were “intended to deceive him,” is also clearly misplaced, as Floyd clearly
made such misrepresentations (including presenting Plaintiff with the fraudulent
Profit Interest Spreadsheet) during the courtship of Plaintiff.
Pl.’s Summ. J. Resp. 23.
Defendants respond that this claim fails for the reasons set forth in its motion. Defendants
argue that Plaintiff failed to provide any evidence to support this argument, there is no evidence any
such statements were false or made recklessly, and Plaintiff does not establish that any statement was
made with intent to deceive him.

Memorandum Opinion and Order – Page 119

The factual basis for this claim is not entirely clear from the scant argument made by Le, and
he does not point to any evidence, new or otherwise, to support his assertion regarding this claim.
As Le asserts that this fraud claim relates to the representations made to him during his recruitment,
including those pertaining to the value of PIUs, it fails for the same reason as his fraud claim based
on the value of PIUs because, as correctly noted by Defendants, Le submitted no evidence in support
of this claim.
Accordingly, for all of these reasons, Defendants are entitled to judgment as a matter of law
on Le’s fraud claims.
5.

Unjust Enrichment and Money Had and Received (Severance)

Defendants contend that Plaintiff’s unjust enrichment claim fails because they did not obtain
a benefit from him by fraud, duress, or taking advantage of him. In this regard, Defendants assert:
Plaintiff was offered severance and he rejected it at least twice. In this regard, the
offer letter provided Plaintiff would qualify for severance under the company’s
Severance and Non-compete Agreement. Plaintiff, however, refused to execute the
agreement referenced in the offer and is, therefore, not entitled to any severance
payment. There is simply no evidence Defendants obtained a benefit from Plaintiff
by fraud, duress, or the taking of an undue advantage. Consequently, he cannot
recover severance under the theory of unjust enrichment.
Defs.’ Summ. J. Br. 24. Defendant argue that Plaintiff’s claim for money had and received fails for
similar reasons:
There is simply no equitable basis to award severance to Plaintiff because[,] had
Plaintiff executed the Severance and Non-compete Agreement, he would have
received the severance payment referenced in the offer letter. Plaintiff chose not to
sign the agreement he was advised of at the time he was hired.
Id.

Regarding unjust enrichment, Plaintiff responds:
Defendants assert that Plaintiff’s unjust enrichment claim fails because they did not
obtain a benefit from Plaintiff by “fraud, duress, or taking advantage of him.” See
Motion at pgs. 23-24. Defendants claim that Plaintiff “rejected” the offer of
severance. See Motion at pg. 24. Nothing could be further from the truth. For the

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reasons set forth immediately above, Defendants absolutely obtained a benefit by
fraud and were thus unjust enriched.
Pl.’s Summ. J. Resp. 23 & n.44. (incorporating his “fraud argument herein in support [of] his claim
for unjust enrichment”). Regarding his claim based on money had and received, Plaintiff asserts:
Defendants argue there exists “no equitable basis to award severance to Plaintiff”
because Plaintiff would have received the severance had he executed the untimely
presented Severance and Non-compete Agreement. See Motion at pgs. 24-25. As an
initial matter, Plaintiff did execute an agreement under which he was entitled to the
Severance Component: the Letter Agreement. But further, for the reasons set forth
fully herein, Plaintiff is entitled to the money in equity, as well as at law, based on
the circumstances and facts upon which Defendants induced Plaintiff to join Exeter
as CHRO.
Pl.’s Summ. J. Resp. 23.
Unjust enrichment is based on the equitable principle “that one who receives benefits unjustly
should make restitution for those benefits.” Villarreal v. Grant Geophysical, Inc., 136 S.W.3d 265,
270 (Tex. App. San Antonio 2004, pet. denied). “Unjust enrichment occurs when a [defendant] has
wrongfully secured a benefit or has passively received one which it would be unconscionable to
retain.” Eun Bok Lee v. Ho Chang Lee, 411 S.W.3d 95, 111 (Tex. App.

Houston [1st Dist.] 2013,

no pet.). “A [defendant] is unjustly enriched when [it] obtains a benefit from another by fraud,
duress, or the taking of an undue advantage.” Id. Unjust enrichment, however, is “not a proper
remedy . . . merely because it might appear expedient or generally fair that some recompense be
afforded for an unfortunate loss or because the benefits to the [party] sought to be charged amount
to a windfall.” Id. at 112 (citing Heldenfels Bros., 832 S.W.2d at 42). “Money had and received is
an equitable action that may be maintained to prevent unjust enrichment when one person obtains
money which in equity and good conscience belongs to another.” H.E.B., L.L.C. v. Ardinger, 369
S.W.3d 496, 507 (Tex. App.

Fort Worth 2012, no pet.).

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While Le maintains, with respect to severance, that Defendants obtained a benefit by fraud
and were, therefore, unjustly enriched, he fails to point to any evidence of fraud. Likewise, he does
not identify any evidence that Defendants were unjustly enriched because they secured a benefit from
such conduct, and Le’s conclusory arguments regarding these matters are insufficient to raise a
genuine dispute of material fact that Defendants were unjustly enriched. As there is no evidence
Defendants were unjustly enriched, Le’s claims based on the equitable theories of unjust enrichment
and money had and received both fail as a matter of law, and Defendants are entitled to judgment
on these claims.
6.

Lennox Damages Based on Fraudulent Inducement

Defendants seek summary judgment on Plaintiff’s claim to recover Lennox damages totaling
approximately $5 million, that is, damages allegedly sustained by him for having been fraudulently
induced to leave his former employer Lennox to join Exeter. Plaintiff contends that his claim for
Lennox damages is moot because he is no longer seeking such damages and his amended expert
report removed these damages. Defendants reply that the evidence clearly establishes that Le was
not induced to leave Lennox and walk away from the money he has sought in this litigation and only
elected to abandon this claim for these damages after he was caught in a lie when his “Lennox boss
testified that he was terminated for cause.” Defs.’ Summ. J. Reply 10. As Plaintiff has withdrawn
his fraudulent inducement claim to recover Lennox Damages, and has failed to raise a genuine
dispute of material fact regarding this claim, Defendants are entitled to judgment, as a matter of law,
on this claim, which will be dismissed with prejudice.
C.

Objections to Summary Judgment Evidence

Both parties have asserted a number of summary judgment objections. The court has only
considered evidence that is admissible pursuant to Rule 56 of the Federal Rules of Civil Procedure

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and the summary judgment standard herein enunciated. Accordingly, the objections are overruled
as moot, except to the extent specifically addressed and ruled upon in this opinion.
VII.

Outstanding Discovery Motions (Docs. 63, 83)
It appears that the court’s rulings regarding the parties’ other motions moots Plaintiff’s

Second Motion to Compel and Motion to De-Designate “Highly Confidential Documents.”
Accordingly, the court denies as moot these motions.
VIII. Conclusion
For the reasons herein explained, the court determines that no genuine dispute of material
fact exists as to any of the elements of Plaintiff’s claims on which Defendants moved for summary
judgment, except for his quantum meruit claim. The court, therefore, denies Defendants’ Motion
for Summary Judgment (Doc. 27) with respect to Plaintiff’s quantum meruit claim, grants the
motion in all other respects, and dismisses with prejudice all claims asserted by Plaintiff in this
action, except for his quantum meruit claim. The court also grants Defendants’ Motion to Exclude
Certain Opinions of Plaintiff’s Expert (Doc. 28); overrules as moot, except to the extent specifically
addressed and ruled upon in this opinion, Plaintiff’s Objection to Defendants’ Summary Judgment
Evidence and Motion to Strike (Doc. 31); denies Plaintiff’s Motion for Continuance (Doc. 35);
overrules as moot, except to the extent specifically addressed and ruled upon in this opinion,
Defendants’ Objections to Plaintiff’s Summary Judgment Evidence (Doc. 39); grants in part and
denies in part Plaintiff’s Motion for Clarification on Discovery Deadline, or in the Alternative,
Motion for Extension of the Same (Doc. 57); denies as moot Plaintiff’s Motion to De-Designate
“Highly Confidential” Documents in Defendants’ Productions (Doc. 63); denies as moot Plaintiff’s

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Second Motion to Compel (Doc. 83); and denies as moot Plaintiff’s Motion to Set Trial Date and
Enter Scheduling Order (Doc. 86).
Further, for the reasons explained, the court believes that additional briefing regarding
Plaintiff’s quantum meruit claim may resolve it or, at a minimum, provide the court with a better
understanding of the parties’ positions of what remains of this claim for trial. Accordingly, any
response by Plaintiff to this order and sua sponte motion by the court shall be filed by April 14,
2019, by 5 p.m., and any reply by Defendants shall be filed by April 28, 2019, by 5 p.m. The parties
are not necessarily limited to addressing the concerns expressed by the court but must comply with
the page limitations imposed. Plaintiff’s response and Defendants’ reply shall not exceed seven
pages in length exclusive of signature and certificate of service pages, and citations to evidence must
be limited to the evidence in the existing summary judgment record, that is, the evidence previously
submitted by the parties in support of and in opposition to Defendants’ summary judgment motion,
not including any supplemental materials filed by either party after Defendants filed their January
20, 2017 reply in support of the summary judgment motion.
It is so ordered this 31st day of March, 2019.

_________________________________
Sam A. Lindsay
United States District Judge

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