Sargent v. Vitality Food Svc ( 2003 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 02-10799
Summary Calendar
RONALD F. SARGENT,
Plaintiff-Appellant,
VERSUS
VITALITY FOOD SERVICE INC.; VITALITY BEVERAGES INC., formerly
known as Pasco Acquisition I; PASCO BEVERAGE COMPANY, formerly
known as Lykes Pasco Inc.; CAXTON-ISEMAN CAPITAL INC.; ENGLES,
URSON & FOLLMER,
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Texas, Fort Worth Division
(4:02-CV-18-A)
March 7, 2003
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Petitioner Ronald F. Sargent appeals the district court’s
dismissal of his Texas state law breach of contract action against
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
defendants Engles, Urson & Follmer (EUF), Caxton-Iseman Capital
Inc. (CIC) and Vitality Beverages Inc. (VBI). This appeal is
interlocutory, as defendant Vitality Food Service Inc. (VFS)
remains a defendant in this case. We normally lack jurisdiction to
hear interlocutory appeals, but because the trial judge certified
this appeal pursuant to Federal Rule of Civil Procedure 54(b), we
have jurisdiction to hear this appeal. Fed. R. Civ. P. 54(b).
Sargent first argues the district court erred in denying his
motion to remand this diversity case to the Texas state courts.
The district court found that Sargent fraudulently joined defendant
EUF to destroy diversity, and alternatively granted EUF’s motion to
dismiss and motion for summary judgment. We review the district
court’s denial of a plaintiff’s motion to remand to state court de
novo. Burden v. General Dynamics Corp., 60 F.3d 213, 216 (5th Cir.
1995). In determining whether a party has been fraudulently joined
to destroy diversity, we look at all facts in the light most
favorable to the plaintiff, and ask whether there is any
possibility plaintiff will recover against defendant under state
law. Id.Here, Sargent argues he has a claim against EUF because Todd
Follmer, an officer and director of EUF, entered into a contract
with him on EUF’s behalf. Under Texas state law, however, a
principal is liable for the contracts of its agents only where that
agent is acting under actual or apparent authority of the
principal. Suarez v. Jordan, 35 S.W.3d 268, 272-73 (Tex. Ct. App.
2
2000). Sargent argues that Follmer was acting under the apparent
authority of EUF to enter into a contract with him. But in
determining whether an agent is acting under the apparent authority
of a principal, we can look only to the actions of the principal,
id. at 273, and Sargent points to nothing in the record that
suggests EUF led him to believe Follmer could enter a contract with
him on its behalf. Accordingly, the district court correctly
dismissed EUF from the case, and denied Sargent’s motion to remand
because the requirements of diversity jurisdiction are met.
Burden, 60 F.3d at 221.
Sargent next argues that the district court erred in granting
CIC and VBI’s motion to dismiss on grounds that Texas lacks
personal jurisdiction over those defendants. He argues that his
case is nearly identical to American Airlines v. Rogerson ATS, 952
F.Supp. 377 (N.D. Tex. 1996), where the district court found Texas
had personal jurisdiction over the defendants. But unlike the
defendants in American Airlines, Sargent has no evidence to suggest
that CIC and VBI intended to be parties to his contract with VFS.
We thus conclude American Airlines is inapposite, and affirm the
district court’s dismissal on personal jurisdiction grounds.
The judgment of the district court is AFFIRMED.
3