Hinds v. Orix Capital Markets, L.L.C.

[David A. Szwak]

Hinds v. Orix Capital Markets, L.L.C.,
Not Reported in F.Supp.2d, 2003 WL 22132791, N.D.Tex., Sep 11, 2003


United States District Court,
N.D. Texas, Dallas Division.
Richard HINDS, Plaintiff,
v.
ORIX CAPITAL MARKETS, L.L.C. and Allied Interstate, Inc. f.k.a. Coldata, Inc.
Defendants.
No. Civ.A. 302CV0239-P.
Sept. 11, 2003.

ORDER

SOLIS, J.
*1 Now before the Court for consideration are:
1. Defendant ORIX Capital Markets, L.L.C.'s Motion for Summary Judgment, with brief in support and appendix, filed May 8, 2003.
2. Plaintiff's response to Defendant's Motion for Summary Judgment, with brief in support and appendix, filed June 13, 2003.
3. Defendant's reply to Plaintiff's response to Defendant's Motion for Summary Judgment, with brief in support and supplemental appendix, filed July 18, 2003.
After a thorough review of the evidence, the pleadings, the parties' briefs, and the applicable law, for the reasons set forth below, the Court GRANTS Defendant's Motion for Summary Judgment as to all of plaintiff's claims.
I. Background
Plaintiff Richard Hinds ("Plaintiff") filed his Original Petition against Defendant ORIX Capital Markets, L.L.C. ("Defendant") on January 4, 2002, in the 193rd Judicial District, Dallas County, Texas. In the Original Petition, Plaintiff alleged claims for breach of contract, promissory estoppel, and fraud arising from Defendant's offer and later withdrawal of an offer of employment, which Plaintiff asserts induced him to quit his then current job with Bridgespan Corp.
Defendant, a major lender and investor of sophisticated real estate transactions, had offered Plaintiff the position of in-house counsel to investigate potential fraud and other creditor problems. Plaintiff initially applied with Defendant on or around October 23, 2001, and, at that time, declined to authorize Defendant to conduct a background credit check. Defendant, in a letter dated October 30, 2001, extended an offer of employment to Plaintiff. After Defendant had extended the offer, Ms. Raelene Nelson, an employee in Defendant's human resources department, requested that Plaintiff sign a credit background search authorization, allegedly promising that it would not be used, but merely placed "in the file" for record purposes. Plaintiff claims he had deliberately and intentionally not authorized such a credit background check because he had some credit difficulties in the past.
Nonetheless, Defendant conducted the credit check. After the Defendant conducted the credit check, Defendant complained to Plaintiff regarding several incidents appearing on the resulting credit report. In a meeting between the parties on November 8, 2001, Plaintiff explained to Defendant that his credit problems were not his fault, but were due to charges made by his wife, which had now been resolved. Defendant claims that the documentation provided by Plaintiff to support this contention consisted of letters from friends, relatives, and others attesting to his good character, but did not explain Plaintiff's responsibility for the credit problems or provide supporting documentation that the problems had been resolved. Defendant further claims that when it asked for further documentation from the creditors, Plaintiff explained that he could not provide creditor confirmation because he had attempted a legal maneuver to resolve a debt by making a partial payment. Defendant had tried to obtain an "accord and satisfaction" by having his father make partial payments to a creditor with an attached letter stating that the payment and cashing of the check would constitute full satisfaction of the debt.
*2 Meanwhile, Plaintiff alleges that he was assured he would continue to have a job with Defendant so long as he promised to make a good faith attempt to clear up the derogatory items on the credit report. Plaintiff also reluctantly authorized Defendant to conduct a further credit examination in the future to confirm his attempts. Nevertheless, Defendant ultimately rescinded its offer of employment to Plaintiff following an email sent by Plaintiff to Mr. Ed Smith, Defendant's Chief Operating Officer, stating that he had relied on Defendant's job offer to his "extreme detriment" and allegedly implying that he would sue Defendant if it revoked his employment offer. Defendant claims it decided to revoke Plaintiff's offer because it was uncomfortable hiring him based on this perceived threat of litigation and the manner in which he had handled his previous credit situation.
Defendant now files this Motion for Summary Judgment. Defendant asserts that it is entitled to summary judgment on all of the claims: (1) breach of contract in regards to its employment agreement with Plaintiff, (2) promissory estoppel in regards to Plaintiff's alleged reliance on the promise of employment, (3) fraud in regards to alleged representations made to Plaintiff by Defendant's employee, and (4) damages insofar as Plaintiff has allegedly failed to mitigate his loss.
II. Standard of Review for Summary Judgment
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Id. at 323. However, all evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).
Once the party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The party defending the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent a summary judgment. Id. at 248-50; Abbott v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir.1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir.1996) (en banc).
*3 If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case, and on which he bears the burden of proof at trial, summary judgment is mandatory. Celotex, 477 U.S. at 322-24; Washington v. Armstrong World Indus., Inc., 839 F.2d 1121, 1122 (5th Cir.1988). A motion for summary judgment cannot be granted simply because there is no opposition, even if the failure to oppose it violates a local rule. Hibernia Nat'l Bank v. Administracion Central Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.1985). However, when the nonmovant fails to provide a response identifying the disputed issues of fact, the Court is entitled to accept the movant's description of the undisputed facts as prima facie evidence of its entitlement to judgment. Eversley v. Mbank Dallas, 843 F.2d 172, 173- 74 (5th Cir.1999); NorDar Holdings, Inc. v. W. Sec. (USA) Ltd ., 1996 U.S. Dist. LEXIS 22779, No. 3:96-CV-0427-H, 1996 WL 39019, *2 (N.D.Tex. Dec. 18, 1996).
Finally, the Court has no duty to search the record for triable issues. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise matter in which the evidence supports his or her claim." Id.
III. Legal Analysis
A. Breach of Contract
The Court begins by examining Plaintiff's claim for breach of contract based on wrongful termination. Plaintiff claims that Defendant breached its contract with him by terminating his employment in violation of a valid contract between the parties which specified that the Defendant would not terminate him based on his past credit situation.
In the absence of an agreement for a definite term, the employee-employer relationship is presumed to be at-will. See Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex.1998). The parties may agree, however, to create exceptions to the at-will nature of the agreement. Goodyear Tire & Rubber Co. v. Portilla, 879 S.W.2d 47, 51 (Tex.1994); see also Morgan v. Jack Brown Cleaners, Inc., 764 S.W.2d 825, 826 (Tex.App.--Austin 1989, writ dism'd) (an oral agreement not to fire an employee except for "good cause" modifies the at-will status); Kelley v. Apache Prods., Inc., 709 S.W.2d 772, 774 (Tex.App.--Beaumont 1986, writ ref'd n.r.e.) (any employment at-will contract can be modified by an oral agreement); Johnson v. Ford Motor Co., 690 S.W.2d 90, 93 (Tex.App.--Eastland 1985, writ ref'd n.r.e.) (oral agreement that one would not be terminated except for "good cause" modifies the at-will relationship and is enforceable).
The burden of proving such a modification rests upon the party asserting it. Hathaway v. General Mills, Inc., 711 S.W.2d 227, 228-29 (Tex.1986). A modification must satisfy the elements of a contract: there must be a meeting of the minds supported by consideration. Id. The determination of whether there was a meeting of the minds is based on objective standards of what the parties said and did, and not on their alleged subjective states of mind. Argonaut Ins. Co. V. Allstate Ins. Co., 869 S.W.2d 537, 540 (Tex.App.-- Houston [1st Dist.] 1988, writ denied). In determining whether there was a meeting of the minds, the courts look to the communications between the parties and to the acts and circumstances surrounding these communications. Wiley v. Bertelsen, 770 S.W.2d 878, 882 (Tex.App.--Texarkana 1989, no writ).
*4 Defendant claims that it did not agree to modify the at-will employment agreement, and argues that there is an absence of a genuine issue of material fact as to this issue. Def.'s Br. Supp. Mot. Summ. J. at 8. In support of this assertion, Defendant points to an email sent from Mr. Smith to Plaintiff on Sunday, November 11, 2001. Id. This email stated:
If you can draft up the agreement which we discussed late last week (regarding non-recurrence with a process for periodic validation) I am willing to work through this.
Id. Defendant argues that the word "draft" reveals that this was not an agreement to modify the at-will employment agreement, but rather that the parties had merely agreed to negotiate a mutually acceptable solution to the credit issue. Def.'s Reply Br. at 3-4. Defendant also points to the deposition testimony of Plaintiff on this point:
Q. Okay. You understood that you were supposed to draft an agreement, Mr. Smith, obviously, would have the chance to review it, and you would try to come to some sort of agreement on that, right?
A. He had that Monday, yeah.

* * *
Q. (By Mr. Fowler) Did ORIX ever indicate to you that this agreement was acceptable?
A. I don't recall whether they did or not. I mean, the only issue that I recall was, I get them one.
Id. at 4. The Court agrees that this evidence establishes an initial showing that there was no intent to be bound to a modification. On its face, the language of the email suggests that the parties agreed to negotiate a mutually acceptable solution to the issue. The email states that Defendant would "draft" an agreement, and that the parties would "work through this." Such language does not objectively manifest an intent to be bound. At most, it manifests an agreement to proceed with further negotiations on the issue. Plaintiff's deposition testimony supports this conclusion by suggesting that the parties had agreed that Plaintiff would "draft an agreement" resolving the issue and that the parties would continue to work at sorting out their differences. As such, the Court concludes that Defendant has presented sufficient evidence to constitute an initial showing that there was no agreement to modify the at-will employment agreement.
It is thus Plaintiff's obligation to come forward with competent evidence of the existence of a genuine issue of material fact in regards to whether Defendant agreed to modify the at-will employment agreement. Plaintiff first points to an earlier email in the Sunday correspondence between Plaintiff and Mr. Smith:
From my notes, you represent that the issues in question were behind you and you would be agreeable to the company doing follow up checks to confirm that with the veracity of that representation being a condition of continued employment. I asked you to draft some agreement to that extent and you agreed to do so.
Assuming you have this agreement please bring it with you to new employee orientation Monday, November 12, 2001 (or email it in advance). I need to have our counsel confirm that it does what we agreed and then we should be in business.
*5 Pl.'s Opp'n Br. at 11. He also points to the email cited in Defendant's brief which stated:
If you can draft up the agreement which we discussed late last week (regarding non-recurrence with a process for periodic validation) I am willing to work through this.
I had trouble with the attachments you sent (could open some but not others and they would not print). Unless it was something new--don't bother resending. Let's focus on the "no recurrences" agreement.
Id. at 11-12. Plaintiff does not provide a clear explanation as to how these emails manifest an intent to be bound. Instead, he treats this as self evident from the text of the emails and proceeds to challenge the other reasons provided by Defendant as to why Plaintiff was terminated. In doing so, however, Plaintiff unfortunately neglects an important step in the argument. Defendant's other reasons for terminating Plaintiff only matter if the Plaintiff can show that there was a modification in the first place. The evidence provided by Plaintiff does not support this contention, but rather it suggests that Defendant merely manifested an agreement to negotiate a mutually acceptable solution to the credit issue and an explicit intention not to be bound until the occurrence of a future event, namely review by Defendant's counsel. The earlier email reveals that Plaintiff was "agreeable" to an agreement allowing Defendant to perform follow up checks and to make this a condition of employment. It also reveals that Plaintiff had "agreed" to "draft an agreement" to this extent. The language regarding review of the agreement by Defendant's counsel further detracts from Plaintiff's argument that there was an agreement between the parties. This language conditions ultimate acceptance on the occurrence of an additional event, namely review and confirmation by the Defendant's attorney. Given these considerations, the Court finds that Plaintiff has failed to present specific facts showing a genuine issue of material fact in regards to whether Defendant agreed to modify the at-will employment agreement. The Court thus GRANTS summary judgment in favor of Defendant on the breach of contract claim.
B. Promissory Estoppel
The Court continues by examining Plaintiff's claim for promissory estoppel. Plaintiff claims that he relied upon Defendant's promise of at-will employment to his detriment. The elements of promissory estoppel are: (1) a promise, (2) foreseeability of reliance on the promise by the promisor; and (3) detrimental reliance by the promisee. English v. Fischer, 660 S.W.2d 521, 524 (Tex.1983). In order to prove detrimental reliance in the context of promissory estoppel, reliance on the promise must be reasonable and justified. See American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 436 (Tex.1997); Sipco Servs. Marine, Inc. v. Wyatt Field Serv. Co., 857 S.W.2d 602, 605 (Tex.App.-- Houston [1st Dist.] 1993, no writ).
Defendant argues that Plaintiff's claim for promissory estoppel is subject to summary judgment because there is no genuine issue of material fact as to whether Plaintiff's reliance was reasonable. Def .'s Br. Supp. Mot. Summ. J. at 15. Defendant argues that Plaintiff was an at-will employee who could not, as a matter of law, justifiably rely upon a promise of at-will employment. Id. In arguing that there was no detrimental reliance in this case, Defendant relies primarily on the case of Collins v. Allied Pharmacy Mgmt., Inc., 871 S.W.2d 929, 937 (Tex.App.--Houston [14th Dist.] 1994, no writ), which held that a promise to provide employment which is subject to termination at any time or for any reason does not provide any assurances about an employer's future conduct, and does not provide a basis for detrimental reliance as a matter of law. Id. at 937-38. The Collins court explicitly rejected the holding of Roberts v. Geosource Drilling Servs., Inc., 757 S.W.2d 48, 50 (Tex.App.-- Houston [1st Dist.] 1988, no writ), the case upon which Plaintiff primarily relies. The Collins court stated:
*6 In our opinion, Roberts was wrongly decided; no Texas cases have cited it and we decline to follow it. Rather, we believe Roberts abrogates the employment at will doctrine in all cases where the employee must quit an existing job to accept a new offer of employment. Also, we find it would be illogical to hold that an employee has no remedy if he is fired one week after commencing work, but may recover damages if the employer refuses to allow him to commence work at all. See Ingram v. Fred Oakley Chrysler-Dodge, 663 S.W.2d 561, 562 (Tex.App.--El Paso 1983, no writ). An employee may quit at any time, or may never start performance and suffer no liability. Collins acknowledged that she and Torry were free to leave at any time and could walk away from the deal without liability. As she stated, "we're not indentured servants." It is this freedom that is the basis of our at-will employment rule, which, although criticized by some jurists, continues to be endorsed by our supreme court. See Casas v. Wornick Co., 818 S.W.2d 466, 469 n. 3 (Tex.App.--Corpus Christi 1991), rev'd, 856 S.W.2d 732 (Tex.1993).
Collins at 937. Defendant points out that Roberts has been distinguished and criticized by commentators and courts. Def.'s Br. Supp. Mot. Summ. J. at 19; see, e.g., Raggio v. Parkland Mem'l Hosp., No. 3-95-CV-0680- R, 1997 WL 135662, at *9, 1997 U.S. Dist. LEXIS 4818, at *33-34 (N.D.Tex. Mar.12, 1997) (Buchmeyer, J.) (unpublished decision following Collins ); Kooken v. The Leather Ctr., Inc., No. 05-97-01202-CV, 2000 WL 381926, at *6, 2000 Tex.App. LEXIS 2161, at *17-18 (Tex.App.--Dallas Apr.3, 2000, n.w.h.) (unpublished decision following Collins ); Gilmartin v. Corpus Christi Broad. Co., 985 S.W.2d 553, 558 (Tex.App.--San Antonio 1998, no writ) (following Collins ); Robert J. Patterson, P.C. v. Leal, 942 S.W.2d 692, 694 (Tex.App.--Corpus Christi 1997, writ denied) (declining to follow Roberts because it involved an employment agreement memorialized by a written contract); Robert J. Connor, Comment, A Study of the Interplay Between Promissory Estoppel and At-Will Employment in Texas, 53 SMU L. REV.579 (2000) (noting the split between Roberts and Collins, and arguing that Roberts was wrongly decided).
Defendant also adopts the argument made in a Comment in the SMU Law Review, in which it is argued that there are three problems with the Roberts decision. See Connor, 53 SMU L. REV. at 606. The Comment argues that the promise of at-will employment is illusory because it can be broken at any time. Id. It further argues that the Roberts decision creates an arbitrary and unfair distinction between claims brought by an employee who is terminated prior to beginning at-will employment and those terminated after commencing employment. Id. The Comment also argues that it is the responsibility of the Texas Supreme Court and the Legislature to create exceptions to the at-will employment doctrine, and none of the exceptions they have created apply in the context of an employee seeking reliance damages based upon the promise of at-will employment. Id.
*7 Defendant also notes that the Fifth Circuit commented on but did not resolve the conflict between Roberts and Collins in Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847 (5th Cir.1999). The Fifth Circuit observed that "it is questionable whether Texas law allows at-will employment to form the basis of a promissory estoppel claim" and that Roberts "has not been universally accepted in Texas appellate courts." Zenor, 176 F.3d at 864. The Court did not have to resolve the conflict because it found that plaintiff's reliance was unreasonable as a matter of law, there were no legally available damages, and justice did not require enforcement of the promise. Id. at 865.
Plaintiff argues that Roberts is still good law. Plaintiff argues that the distinction Roberts established between persons who have started employment and those who have not is reasonable because persons who have not commenced employment bear additional risk in that they may not be entitled to unemployment benefits. Pl.'s Opp'n Br. at 14; see also Texas Labor Code § 207.045 (Vernon Supp.2003). Plaintiff further argues that forbidding claims in this context does not support the purpose of the at-will employment doctrine, but rather results in a situation where employers are allowed to induce grave reliance from prospective employees without facing potential liability.
While sympathetic to Plaintiff's situation, the Court finds it appropriate to follow the Collins decision in resolving the dispute at bar. The promise of at-will employment provides no guarantees as to the employer's future conduct and, as such, does not provide a reasonable basis for reliance. Collins, 871 S.W.2d at 937-38; see also Raggio, No. 3-95-CV-0680-R, 1997 WL 135662, at * 9, 1997 U.S. Dist. LEXIS 4818, at *33-34. The at-will employment doctrine is a long-standing, important part of Texas jurisprudence. See Tex. Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d 604, 608 (Tex.2002). Both the Texas legislature and the United States Congress have enacted certain statutory exceptions to this doctrine, none of which are pled in the instant case. See, e.g., Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-16 (discharge on the basis of race, s*, pregnancy, national origin and religion); Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12108 (discharge on basis of disability); Tex. Civ. Prac. & Rem.Code § 122.001 (LEXIS through May 20, 2003) (discharge for jury service); Tex. Gov't Code §§ 431.005-431.006 (LEXIS through May 20, 2003.1990) (discharge for military service). Furthermore, the Texas Supreme Court has specifically stated that it is "reluctant to impose new common-law duties that would alter or conflict with the at-will relationship." Sears, 84 S.W.3d at 608; see also Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex.1985) (recognizing a narrow exception for at-will employees discharged solely because they refused to act illegally). Given the strength and importance of this doctrine, the court is reluctant to dilute it by allowing a promissory estoppel claim based on reliance of a promise of at-will employment. The court notes in particular that an exception to the at-will employment doctrine allowing reliance damages based on the promise of at-will employment has not been adopted by either the Texas Supreme Court or the Legislature. Given these considerations, the Court finds that Plaintiff's promissory estoppel claim fails as a matter of law because a promise to provide at-will employment does not provide any assurances about the employer's future conduct and is not a reasonable basis for reliance. Summary judgment for Defendant is therefore GRANTED on Plaintiff's claim for promissory estoppel.
C. Fraud
*8 The Court proceeds to examine Plaintiff's fraud claim. Plaintiff claims that Defendant's employee made certain false representations during the hiring process and that he reasonably relied upon them to his detriment. Fraud occurs when (1) a party makes a material misrepresentation, (2) the misrepresentation is made with knowledge of its falsity or made recklessly without any knowledge of the truth and as a positive assertion, (3) the misrepresentation is made with the intention that it should be acted on by the other party, and (4) the other party acts in reliance on the misrepresentation and thereby suffers injury. Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714, 723 (Tex.1990); Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex.1983).
Defendant first argues that Plaintiff's fraud claim fails as a matter of law because an at-will employee cannot bring a cause of action for fraud against an employer based on the employer's decision to discharge the employee. Leach v. Conoco, Inc., 892 S.W.2d 954, 960 (Tex.App.--Houston [1st Dist.] 1995, writ dism'd w.o .j.); Jones v. Legal Copy, Inc., 846 S.W.2d 922, 925 (Tex.App.-- Houston [1st Dist.] 1993, no writ). In response, Plaintiff argues that the situation at bar is distinguishable from Leach in that in this case the misrepresentations to Plaintiff were made prior to commencement of employment whereas in Leach they took place only after employment had commenced. Pl.'s Opp'n Br. at 18; see also Offshore Petroleum Divers, Inc. v. Cromp, 952 S.W.2d 954, 956 (Tex.App.--Beaumont 1997, writ denied) ("Conoco's alleged fraudulent misrepresentation to Leach took place only during the time Leach was its employee."); Halper v. Univ. of the Incarnate Word, 90 S.W.3d 842, 847 (Tex.App.--San Antonio 2002, not pet.) ("f the alleged misrepresentation was made before the employee commenced employment, the fraud claim is not barred.").
In the instant case, plaintiff alleges that fraudulent representations were made to him on November 2 and November 7, 2002. Plaintiff was scheduled to commence employment on Monday, November 12, 2002. Because the alleged fraudulent representations occurred prior to when plaintiff was to commence employment, Plaintiff asserts his claim is not barred as a matter of law. Although Texas courts have allowed fraud claims where the alleged fraud occurs before employment begins, the court finds that under the facts of this case, plaintiff's fraud claim is barred as a matter of law.
Plaintiff alleges that Ms. Nelson made a fraudulent representation on November 2, 2002, when she called him and informed him that all background checks were complete. Plaintiff claims that this representation was at least partially false because Ms. Nelson knew that Mr. Smith had not completed reference checks. Plaintiff maintains that he relief upon this representation when determining that it was safe to tender his resignation to his then current employer. Plaintiff alleges that the second fraudulent representation occurred on November 7, 2001. Plaintiff maintains that Ms. Nelson contacted him in order to request that he sign an unaltered consent document giving Defendant permission to investigate his credit history. Plaintiff claims that Ms. Nelson told him that the document would not be used, but would merely be placed in the file for record purposes. Defendant disputes that Ms. Nelson ever told Plaintiff that the consent document would be held in trust. Defendant also argues that, even if these representations were made, it makes no difference because Plaintiff would have lost the position had he refused to provide the consent document. In response, Plaintiff argues that, even if the Defendant had revoked the offer at this point, the relationship between Plaintiff and his former employer had not yet been irrevocably damaged. Pl.'s Opp'n Br. at 17. In support of this proposition, Plaintiff offers a memo dated November 13, 2001, in which Debbie Douglass, Defendant's Human Resources Director, memorialized a phone conversation between the two that occurred on the same day. Pl.'s App. at 220. The memo states in part that "[Plaintiff] said HR at his old job told him that he had not burned any bridges and to call if he wanted to come back." Id.
*9 The damages plaintiff claims due to his reliance on defendant's misrepresentations are that he resigned from his former employment, defendant withdraw its job offer, and plaintiff was not able to go back to his former employment. The court finds that plaintiff's fraud claim with respect to defendant's withdrawal of its offer of employment to plaintiff is barred for the same reasons as the promissory estoppel claim. Because plaintiff was free to not ever begin employment with defendant, and defendant was free to withdraw its offer of employment to plaintiff at any time, defendant's offer of at will employment cannot provide the basis for a detrimental reliance claim as a matter of law. Collins v. Allied Pharmacy Mgmt. ., Inc., 871 S.W.2d at 937- 38. The same rationale applies with respect to plaintiff's resignation from his then current employment on November 2. Plaintiff cannot have a detrimental reliance claim on the basis of a promise of at will employment. Additionally, the court finds no damages occurred from plaintiff's resignation on November 2 because plaintiff states that as late as November 12 he could have continued in his former employment. Lastly, plaintiff maintains that if he had known of defendant's withdrawal of its job offer by November 12, 2002, he would have been able to continue in his former job. Although the court is skeptical of that allegation since plaintiff's former employer did not rehire plaintiff, the court assumes for purposes of the summary judgment motion that plaintiff could have continued in his former employment on November 12, 2002, but not on November 13, 2002. The evidence in the record reveals that by November 8 plaintiff was aware that, contrary to what he had been told, defendant had run a credit check on him and knew of his credit history. On November the 8 or 9, plaintiff explained to defendant the reasons for his credit history and his attempt to settle the debt with Coldata by tendering partial payment. On Friday, November 9, plaintiff gave defendant permission to speak with several of plaintiff's creditors and informed defendant that he though defendant had its mind made up. Orix App. at 133. November 12 was a Monday, and a series of e-mails were exchanged between plaintiff and defendant the weekend before the 12th. In an e-mail to defendant dated November 11, 2002, plaintiff states that he assumes that his new employee orientation scheduled for November 12 was postponed until some issues are resolved. In another e-mail of November 11, the issue of whether defendant had told plaintiff it would not use the authorization on his application to run a credit history was discussed between plaintiff and Ed Smith, the person who was to make the final decision with respect to plaintiff's employment with defendant. In that same e-mail, plaintiff, in effect, accuses defendant of lying to him and states that he relied on defendant's misrepresentations to his "extreme detriment." Also in that e-mail, plaintiff states that he was shocked when defendant's HR department called him to tell him they had obtained a credit report on plaintiff and that plaintiff's job with defendant was in jeopardy. In sum, the record reveals that by Friday, November 9, and no later than Sunday, November 11, plaintiff was aware that his employment status with defendant was uncertain. The record indicates that plaintiff was perhaps expecting that he would not have a job with defendant. Yet, plaintiff took no action with respect to his former employment prior to defendant rescinding its offer of employment on November 13. Thus, plaintiff's allegation that defendant's misrepresentations on November 2 and 7 and waiting until November 13 to rescind its job offer prevented him from continuing in his former employment is not supported by the evidence. Plaintiff could not have detrimentally relied on defendant's misrepresentations with respect to his former employment when plaintiff himself took no action at a time when plaintiff was aware of the uncertainty of his employment status with defendant and was aware that he could have continued in his former job. Summary Judgment for defendant is GRANTED on plaintiff's fraud claim.

CONCLUSION
*10 Accordingly, after review of the parties' arguments, the summary judgment evidence, and the relevant law, for the reasons stated above, the Court hereby GRANTS Defendant's Motion for Summary Judgment as to all of plaintiffs claims. In deciding this motion, the Court has not relied upon any inadmissable evidence.
IT IS SO ORDERED.
N.D.Tex.,2003.
Hinds v. Orix Capital Markets, L.L.C.
Not Reported in F.Supp.2d, 2003 WL 22132791 (N.D.Tex.)

[David A. Szwak]

Hinds v. Orix Capital Markets, L.L.C.,
Not Reported in F.Supp.2d, 2003 WL 21350210, N.D.Tex., Jun 10, 2003


United States District Court,
N.D. Texas, Dallas Division.
Richard HINDS, Plaintiff,
v.
ORIX CAPITAL MARKETS, L.L.C. and Coldata, Inc., Defendants.
No. Civ.A.3:02-CV-0239-P.
June 10, 2003.


ORDER

SOLIS, J.
*1 Now before the Court is Plaintiff's Motion for Leave to Amend Complaint filed April 4, 2003. In this motion, Plaintiff seeks to change the name of Defendant Coldata and add federal causes of action for obtaining credit reports under false pretenses against ORIX as well as Fair Debt Collection Practices Act violations against Coldata. Defendant ORIX filed a response April 22, 2003 while Defendant Coldata failed to respond. Plaintiff filed a reply May, 7, 2003. After considering the parties' briefing and applicable law, the Court GRANTS in part and DENIES in part Plaintiff's Motion for Leave to Amend Answer.

BACKGROUND
Plaintiff Richard Hinds ("Hinds" or "Plaintiff") filed his Original Petition against Defendant ORIX Capital Markets, L.L.C. ("ORIX" or "Defendant") on January 4, 2002, in the 193rd Judicial District, Dallas County, Texas. Notice of Removal, Tab 2 (Pl.'s Orig. Pet.). In the Original Petition, Plaintiff alleged claims for promissory estoppel, breach of contract, and fraud arising from ORIX's offer and later withdrawal of an offer of employment, which Plaintiff asserts induced him to quit his then existing job.
ORIX, a major lender and investor on sophisticated real estate transactions, had offered Hinds the position of in-house counsel to investigate potential fraud and other creditor problems. Hinds claims that in connection with his initial application to ORIX, he declined to authorize ORIX to conduct a background credit check of him. He claims that later an employee in ORIX's Human Resources Department, after the Defendant had extended an offer letter, requested that Plaintiff sign a credit background search authorization on the promise that it would not be used, but would merely be placed "in the file" for record purposes. Plaintiff claims he had deliberately and intentionally not authorized such a credit background check because he had some credit difficulties in the past.
Nonetheless, Defendant conducted the credit check. After the Defendant conducted the credit check, Defendant complained to Plaintiff regarding several incidents appearing on the resulting credit report. In a meeting between the parties on November 8, 2001, Hinds explained to ORIX that his credit problems were not his fault, but were due to charges made by his wife, which had now been resolved. ORIX claims that the documentation provided by Plaintiff to support his contention consisted of letters from friends, relatives, and others attesting to his good character, but did not explain Plaintiff's responsibility for the credit problems or provide supporting documentation that the problems had been resolved. ORIX further claims that when it asked for further documentation from the creditors, Hinds explained that he could not provide creditor confirmation because he had attempted a legal maneuver to resolve a debt by making a partial payment (i.e., had his father make the payment to one of the creditors with an attached letter stating that the payment and cashing of the check would constitute full satisfaction of the debt).
*2 Meanwhile, Plaintiff alleges that he was assured he would continue to have a job with Defendant so long as he promised to make a good faith attempt to clear up the derogatory items on the credit report. Plaintiff also reluctantly authorized ORIX to conduct a further credit examination in the future to confirm his attempts. Nevertheless, ORIX ultimately rescinded its offer of employment to Hinds following an e-mail sent by Hinds to Ed Smith, the Executive Vice President and Chief Operating Officer at ORIX, stating that he had relied on ORIX's job offer to his "extreme detriment" and implying that he would sue ORIX if it revoked his employment offer. Defendant claims that this litigation threat, Plaintiff's conduct in striking out the authorization for the credit background check, and the obtaining of an "accord and satisfaction" through a ruse, led to the decision to rescind the job offer.
Before the case was removed, Plaintiff filed his First Amended Petition on February 2, 2002 adding claims against Coldata, Inc. ("Coldata") for breach of contract, violation of the Debt Collection Act ("DCA"), violation of the Deceptive Trade Practices Act ("DTPA"), and defamation. Supplement to Notice of Removal, Tab A (Pl.'s First Am. Pet.). [FN1] Hinds alleges that Coldata was either assigned an interest or was retained to collect a debt arising from a credit card issued to him by MBNA Bank. Plaintiff states that his father had sent Coldata a check in the amount of $2,975 dated June 14, 2001, with a notation that it must either accept the proposed settlement or return the check uncashed. Notwithstanding this "accord and satisfaction" agreement, Plaintiff asserts Coldata cashed the check and then later reported to Equifax and/or CSC Credit Services in October 2001 that Plaintiff still owed $23,958 in a collection account. It is Hinds' further contention that the adverse action taken by ORIX was caused by the derogatory information placed on his credit report by Coldata.


FN1. ORIX asserts that Coldata was not served before its filing of the Notice of Removal on February 5, 2002. Nevertheless, complete diversity was not destroyed with the addition of Coldata since Coldata is a corporation incorporated under the laws of the State of New York, with its principal place of business in the State of New York.


This Court's July 3, 2002 scheduling order set a deadline for amending pleadings of November 1, 2002, which was then extended by agreed motion until December 1, 2002. Trial is set for October 20, 2003. After the extended deadline for amending pleadings had expired, Hinds conducted depositions of ORIX employees in January 2003 and the corporate representative of Coldata in February 2003. During the latter deposition, Plaintiff learned that Coldata had changed its name to Allied Interstate, Inc. ("Allied Interstate"). Plaintiff further claims that additional information relating to existing causes of action were discovered during the depositions.
Plaintiff now files this Motion for Leave to Amend, more than 4 months after the extended deadline for amendment of pleadings. Plaintiff moves the Court for leave to file this Second Amended Complaint in order to change the name of Coldata to Allied Interstate and to add federal causes of action that mirror the already existing state causes of action against both ORIX and Coldata. Plaintiff alleges a Fair Credit Reporting Act fraud claim against ORIX and Fair Debt Collection Practices Act violations against Coldata.

DISCUSSION
*3 When a scheduling order deadline has been issued by the district court and has expired, Federal Rule of Civil Procedure 16(b) governs the amendment of pleadings. S & W Enterprises, L.L.C. v. Southtrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir.2003). The more liberal standard of Rule 15(a) will only apply to the district court's decision in granting or denying leave to amend if the moving party demonstrates good cause to modify the scheduling order deadline. Id. A scheduling order "shall not be modified except upon a showing of good cause and by leave of the district judge." Fed.R.Civ.P. 16(b). The good cause standard within Rule 16(b) requires the "party seeking relief to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension." S & W Enterprises, 315 F.3d at 535 citing 6A Charles Alan Wright, Federal Practice and Procedure § 1522.1 (2d ed.1990).
The Fifth Circuit recently adopted a four-part test to determine whether the district court abused its discretion when refusing to modify a scheduling order. Id. at 536. The test weighs the importance of each of these factors: (1) the explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice. Id. If the moving party can establish that a scheduling order should be modified, the court then must decide under Rule 15(a) whether to grant leave to amend.
Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend a pleading "shall be granted when justice so requires." Foman v. Davis, 371 U.S. 178, 182 (1962). The decision to grant leave to amend lies within the discretion of the trial court. Unless there exists a substantial reason for denying leave to amend, the district court should permit the filing of a proposed amendment. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir.2000). In determining whether to grant leave to amend, the court may consider several factors, including undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of amendment. Foman, 371 U.S. at 182.
In moving for leave to amend, Plaintiff does not mention Rule 16(b) but rather bases his claim on the more liberal standard of Rule 15(a). Plaintiff alleges that the motion should be granted since "no new parties are added, and the underlying facts supporting the added federal causes of action will not require any additional discovery or otherwise delay the proceeding, since they closely mirror state claims already on file with the First Amended Petition." Pl.'s Mot. Leave Am., p. 3. However, the Fifth Circuit has held that Rule 16(b) governs the amendment of pleadings when a scheduling deadline has expired.
I. Name Change (Coldata to Allied Interstate)
*4 Plaintiff demonstrated good cause under Rule 16(b) for modifying the scheduling order to allow for the proposed name change of Defendant Coldata to Allied Interstate. Plaintiff did not learn that Coldata was acquired by Allied Interstate until depositions that occurred after the extended deadline for amendment of pleadings. Thus, the Plaintiff could not have reasonably met the deadline of December 1, 2002, and the district court should be able to view this proposed name change under Rule 15(a).
Under Dussouy, the District Court should allow leave to amend unless a substantial reason for denying the motion exists. Defendant Coldata failed to respond to this Motion for Leave to Amend and thus has not offered any reason of delay, prejudice, bad faith or dilatory motives by the Plaintiff, or any other reason for not allowing the amendment. Therefore, the Court GRANTS Plaintiff's Motion for Leave to Amend with respect to the name change of Coldata to Allied Interstate.
II. Federal Causes of Action Against ORIX and Coldata
In determining whether Plaintiff established good cause to modify the scheduling order deadline in order to add federal causes of action against both ORIX and Coldata, the Court must decide if the Plaintiff was diligent in seeking to modify the scheduling order deadline. Under the four-party test established by the Fifth Circuit in S & W Enterprises, two of the factors weight against the Plaintiff in establishing good cause.
Plaintiff did not explain its failure to timely move for leave to amend with respect to adding federal causes of action against both ORIX and Coldata. Plaintiff had knowledge of similar state law causes of action well before the extended deadline for amendment of pleadings and was aware that the case had been removed to Federal Court since February 5, 2002. Furthermore, Plaintiff had knowledge of the facts which gave rise to both federal statutory causes of action at the time of his First Amended Petition on February 2, 2002. In his Motion for Leave to Amend, Plaintiff alleges that he "learned additional information" from depositions with ORIX and Coldata "related to existing causes of action, and wishes to add such specific information to his Complaint as well as federal causes of action for obtaining credit reports under false pretenses against ORIX and unfair debt collection violations against Coldata." Pl's Mot. Leave Am., p. 2. Plaintiff however did not provide any evidence that would demonstrate that the federal causes of action could not have been filed before the December 1, 2002 deadline. Thus in filing his Second Amended Complaint four months after the deadline, Plaintiff does not meet the good cause standard of Rule 16(b).
The second factor of the four-part test deals with the importance of the amendment. Plaintiff does not demonstrate the importance of adding federal causes of action against both Defendants. Since the federal claims closely mirror state law claims already on file, the Plaintiff will not be severely harmed if the Court denies the motion.
*5 The addition of the federal causes of action however would not create any undue prejudice against ORIX or Coldata. Defendant Coldata did not respond to the motion and thus did not offer any reasons for being prejudiced by the granting of the motion. Defendant ORIX did respond but failed to specifically state the additional research and discovery that would be needed with respect to Plaintiff's statutory claim under the Fair Credit Reporting Act. In addition, ORIX would not be unduly prejudiced by the amendment because the proposed federal claims are factually similar to the state law claims. Although Plaintiff can allege that the addition of the federal causes of action will not prejudice either ORIX or Coldata, it has been determined that "mere inadvertence on the part of the movant and the absence of prejudice to the non-movant are insufficient to establish 'good cause." ' Dallas Area Rapid Transit v. Foster, No. 3-00-CV-1080-BD, 2002 WL 31433295, at *1 (N .D.Tex. Oct. 28, 2002), citing Am. Tourmaline Fields v. Int'l Paper Co., No. Civ.A. 3:96-CV-3363-D, 1998 WL 874825, at *1 (N.D.Tex. Dec. 7, 1998). Therefore, Plaintiff cannot modify the scheduling order deadline whenever lack of prejudice to the moving party has been established. [FN2]


FN2. The Court hereby notes that Defendant Coldata and Defendant ORIX filed Summary Judgment Motions on April 29, 2003 and May 8, 2003 respectively. Plaintiff responded to Coldata's Motion for Summary Judgment on May 15, 2003 and Coldata failed to reply. Plaintiff's response to ORIX's Motion for Summary Judgment is due June 13, 2003. Since each of these motions have been filed, an amending of the complaint to add federal causes of action is not timely and would cause undue delay to the Court and the Defendants.


The requirement of good cause by Rule 16(b) limits the Court from viewing the additional federal claims under the more liberal standard of Rule 15(a). Plaintiff failed to establish good cause in modifying the scheduling order deadline for the addition of federal claims because of unnecessary delay. Therefore, the Court acts within its discretion when DENYING the Plaintiff's Motion for Leave to Amend in order to add federal causes of action against both ORIX and Coldata.

CONCLUSION
Since the scheduling order deadline had expired prior to Plaintiff's Motion for Leave to Amend, Rule 16(b) governs the amendment of pleadings and Rule 15(a) is dependent upon the moving party's ability to demonstrate good cause. Plaintiff established good cause for changing the name of Coldata to Allied Interstate but failed to establish good cause for adding federal causes of action against both ORIX and Coldata. Therefore, the Court was only able to apply Rule 15(a) when reviewing the name change of Coldata.
Accordingly, for the reasons stated herein, the Court GRANTS Plaintiff's Motion for Leave to Amend in order to change the name of Coldata to Allied Interstate. The caption of the case will hereby be changed to reflect the name change of Defendant Coldata. Furthermore, the Court DENIES Plaintiff's Motion for Leave to Amend in order to add federal causes of action against both ORIX and Coldata.
IT IS SO ORDERED.
N.D.Tex.,2003.
Hinds v. Orix Capital Markets, L.L.C.
Not Reported in F.Supp.2d, 2003 WL 21350210 (N.D.Tex.)