Habets v. Waste Management, Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 12, 2004

Charles R. Fulbruge III
Clerk
No. 03-20370

HARRY HABETS, an individual

Plaintiff-Appellant,

versus

WASTE MANAGEMENT, INC., a Delaware Corporation

Defendant-Appellee.

Appeal from the United States District Court
For the Southern District of Texas

Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.

DeMOSS, Circuit Judge:

Plaintiff-Appellant Harry Habets (“Habets”) seeks reversal of

the district court’s decision adopting the magistrate judge’s

recommendation and granting summary judgment to Defendant-Appellee

Waste Management, Inc. (“WMI”). The district court concluded that

Habets had no right to participate in WMI’s Key Executive Severance

Plan (the “KESP”) once WMI’s Board of Directors (the “Board”)

amended the list of KESP participants to remove Habets. On appeal,

Habets argues first that the district court failed to review the

magistrate judge’s recommendation under a de novo standard, and

second that the district court improperly granted summary judgment
to WMI because the plain language did not favor WMI’s

interpretation of the KESP; if the KESP’s terms were ambiguous, the

extrinsic evidence did not favor WMI’s interpretation; and a

material issue of fact existed as to whether WMI removed Habets

from the position of executive officer. Because we find that the

district court conducted a proper de novo review of the

magistrate’s recommendation, the KESP’s terms unambiguously granted

the Board the discretion to specify who was and was not a

participant in the KESP, and Habets was so removed as a participant

in May 1992, we AFFIRM the decision of the district court.

BACKGROUND

WMI hired Habets in September 1985 as a general manager for

its Chicago office. On January 10, 1990, Habets was appointed as

President – Medical Services and Vice President of WMI. At that

point, Habets became eligible to participate in a “golden

parachute” benefits plan, the KESP. The KESP was created in 1986

and provided that if a participant of the KESP was terminated,

which definition included voluntarily resigning, from employment

within three years of a change in control of company management,

the participant would receive a generous severance compensation

package. In March 1990, the Executive Compensation Committee of

the Board formally named Habets as a participant in the KESP; his

name was added to a company document entitled “Exhibit 1,” which

listed all participants. Habets’s status as a regional officer of

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WMI was reflected in WMI’s 1990 annual report, dated February 7,

1991. Habets also became eligible to participate in the

Supplemental Executive Retirement Plan (the “SERP”).

The KESP, which provided that Delaware law govern its

interpretation, included the following key provisions:

1.1.4. Participant: The term “Participant” shall mean
the officers of the Company or its subsidiaries who are
listed on Exhibit 1 hereto and such additional officers
of the Company or its subsidiaries as the Board of
Directors of the Company may, by resolution duly adopted
prior to any Change in Control, from time to time specify
as being a Participant in this Plan.

2.2. Amendments, Etc.: Prior to the expiration of
the Plan Period, the Company shall not amend, terminate
or suspend the Plan or any provision hereof, including
without limitation this Section 2.2, without the prior
written consent of any Participant adversely affected
thereby. . . .

2.3. Certain Limitations: Without limiting any
rights which any Participant may have under any Other
Plan, nothing in this Plan shall grant any Participant
any right to remain an executive officer, director or
employee of the Company and/or any of its subsidiaries,
whether or not a Change in Control shall occur.

In late 1991 WMI underwent a corporate restructuring, which

removed Habets as a regional top officer, after his region was

combined with another. This restructuring also removed Douglas

Allman (“Allman”), another WMI employee, as an executive officer.

WMI’s 1991 annual report omitted Habets from its list of officers.

Habets kept his job title but reported to a regional officer,

rather than to the president of the company, as he had formerly

done. On May 29, 1992, the Executive Compensation Committee of the

3
Board approved a new list of persons eligible to participate in the

KESP; Habets’s and Allman’s names were removed from Exhibit 1.

Allman received notice of his removal from the list; Habets did

not.

In August 1992 WMI attempted to terminate the KESP for all

participants, except those working overseas. In this process,

WMI’s executives sought counsel from Herbert Getz (“Getz”) who then

served as a Vice President, Secretary, and Assistant General

Counsel. Getz advised offering stock options to the KESP

participants in exchange for their waiving their rights under the

KESP. WMI followed Getz’s recommendation. Habets received stock

options but was not among those persons from whom WMI requested a

waiver. In contrast, Allman did waive any rights he had under the

KESP for stock options.

In July 1998 WMI merged with a subsidiary of USA Waste. As

part of the merger, the SERP was terminated and WMI agreed to pay

a lump sum to employees with SERP benefits. Habets was eligible

for this SERP payment but disputed WMI’s calculation of the amount

he was due under the SERP. Habets sent a memo to WMI on December

1, 1998, advising it of the SERP calculation errors based on his

years of membership in the KESP. WMI responded that the KESP was

terminated and could not be used in conjunction with calculating

SERP benefits. Habets did not accept this and continued to

correspond with WMI about his KESP and SERP rights. On

December 22, 1998, WMI sent Habets a letter offering to increase

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Habets’s SERP payment by two additional years of service credit if

he would release any claims under the KESP. In early 1999 WMI sent

Habets two checks totaling $348,189.34, which reflected its

calculated SERP distribution of $281,555,89 and the supplemental

compromise amount of $66,234.39. Habets cashed the checks but

refused to sign a waiver of his KESP rights.

On July 27, 1999, Habets resigned from WMI. At that time,

Habets requested severance pay due him under the KESP and the SERP.

On December 8, 1999, Habets’s attorney sent WMI a demand letter

requesting it pay Habets his KESP benefits. WMI responded on

February 29, 2000, stating that WMI’s lump sum SERP payment to

Habets in 1999 constituted a satisfaction of WMI’s obligations as

to both the KESP and the SERP, and Habets had waived his KESP

rights in connection with the receipt of the August 1992 stock

options. On October 30, 2000, WMI reiterated these assertions by

letter to Habets.

Habets filed the instant suit in July 2001, alleging that WMI

breached the KESP and the SERP by not fully compensating him

pursuant to these plans after he resigned. WMI denied that it owed

Habets any benefits under either plan. On July 1, 2002, WMI moved

for summary judgment. The district court referred the matter to a

magistrate judge, who on February 12, 2003, recommended granting

WMI’s motion for summary judgment. On March 3, 2003, Habets filed

objections to the magistrate’s recommendation. On March 4, 2003,

the district court adopted the magistrate’s recommendation in its

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entirety. Final judgment was entered the next day, and Habets

timely appealed only the determination of his rights under the

KESP.

DISCUSSION

Whether the district court conducted a proper de novo review of the
magistrate judge’s recommendation.

Section 636(b)(1) of Title 28 and Federal Rule of Civil

Procedure 72(b) provide that within ten days after a magistrate

judge issues her recommendation, a party may file specific written

objections. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The

district court must then “make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made” before accepting,

rejecting, or modifying those findings or recommendations. 28

U.S.C. § 636(b)(1).

Habets contends that the district court here did not undertake

the requisite de novo review of the magistrate’s recommendation.

Habets asserts that because the district court entered its two-

sentence order adopting the magistrate’s recommendation without any

opinion or analysis only one day after it received Habets’s

objections which included a 200-page appendix and because the

issues presented to the magistrate were complex, the district court

must have merely “rubber stamped” the magistrate’s recommendation.

WMI responds that the district court followed proper procedure

in assigning the motion for summary judgment to the magistrate

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judge and in permitting Habets to file objections to the

magistrate’s recommendation before entering summary judgment in

favor of WMI. WMI claims that given the simplicity of the issues

before the district court, the district judge had ample time to

conduct a de novo review of the magistrate’s recommendation before

adopting it.

With respect to the district court’s expeditiousness, we have

expressly ruled against Habets’s position in McGill v. Goff,

17 F.3d 729, 732 (5th Cir. 1994), overruled on other grounds,

Kansas Reins. Co., Ltd. v. Congressional Mortgage Corp. of Texas,

20 F.3d 1362, 1373-74 (5th Cir. 1994). In McGill, this Court

considered whether a district court committed reversible error when

it adopted a magistrate’s recommendation just one day after

receiving the recommendation, and before the defendants had an

opportunity to file any objections. Id. at 731. We found any

error harmless because adoption of the recommendation after one day

did not imply a lack of review, and the district court could have

conducted a meaningful review without any objections. Id. at 731-

32. McGill permits a district court to adopt a magistrate’s

recommendation after one day before receiving any objections in the

ten-day period; thus, McGill also refutes any claim that a district

court must wait any certain time period after receiving objections

to adopt a recommendation.

With respect to Habets’s claim that the district court’s order

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was too abbreviated, Habets fails to cite any pertinent case law

that requires a district court to provide analysis when it adopts

a magistrate’s recommendation for summary judgment. The cases

cited by Habets are distinguishable. Here, unlike in Hernandez v.

Estelle, 711 F.2d 619, 620 (5th Cir. 1983), the record was

available to the district court a full 20 days before the court

issued its order. Unlike in Stauble v. Warrob, Inc., 977 F.2d 690,

696 (1st Cir. 1992), and Vekamaf Holland B.V. v. Pipe Benders,

Inc., 671 F.2d 1185, 1186 (8th Cir. 1982), the magistrate here made

no involved findings of fact because this was a recommendation on

a motion for summary judgment. Unlike in Saunders v. Naval Air

Rework Facility, 608 F.2d 1308, 1311 (9th Cir. 1979), the

magistrate here provided a thorough analysis to support its

recommendation, and the district court had a complete record of the

magistrate’s proceedings. Finally, unlike in English v. Local

Union No. 46, 654 F.2d 473, 474-78 (7th Cir. 1981), the language of

the district court’s order here did not imply that it did not

properly review the magistrate’s recommendation.

In light of McGill, which allows for the expeditiousness of

the district court’s order, and because the magistrate here made

only legal findings on a summary judgment motion, the district

court was permitted to issue an abbreviated order adopting the

magistrate’s summary judgment recommendation one day after

receiving Habets’s objections. We thus find the district court

8
conducted a proper de novo review of the magistrate’s

recommendation.

Whether the district court erred in granting summary judgment to
WMI.

This Court reviews a district court’s grant of summary

judgment de novo. Fiesel v. Cherry, 294 F.3d 664, 667 (5th Cir.

2002) (citation omitted). Under Federal Rule of Civil

Procedure 56(c), “[s]ummary judgment is proper when, viewing the

evidence in the light most favorable to the nonmovant, there is no

genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law.” Id. (internal quotations

and citation omitted); see also Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251-52 (1986). Likewise, we review matters of

contract interpretation de novo. HS Res., Inc. v. Wingate, 327

F.3d 432, 440 (5th Cir. 2003).

Under Delaware law, the principles governing contract

interpretation are well settled. Northwestern Nat’l Ins. Co. v.

Esmark, Inc., 672 A.2d 41, 43 (Del. 1996). The plain contract

language must be construed as a whole, to give effect to the

intentions of the parties. Id. (citation omitted). “Where the

contract language is clear and unambiguous, the parties’ intent is

ascertained by giving the language its ordinary and usual meaning.”

Id. (citing Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins.

Co., 616 A.2d 1192, 1195 (Del. 1992)). A contract is ambiguous

9
only when the provisions in controversy are fairly susceptible of

having different interpretations. Rhone-Poulenc, 616 A.2d at 1196.

However, a contract is not rendered ambiguous simply because the

parties do not agree upon its proper construction. Id. Courts can

only consider extrinsic evidence to interpret the agreement if

there is an ambiguity in the contract. Esmark, 672 A.2d at 43

(citing Pellaton v. Bank of New York, 592 A.2d 473, 478 (Del.

1991)).

Habets argues here that the plain language of the KESP

necessitates that his KESP benefits remained effective. Habets

maintains that the plain language of Section 1.1.4 means a

participant in the KESP is either an officer listed in Exhibit 1,

which is incorporated by reference into the KESP, State ex rel.

Hirst v. Black, 83 A.2d 678, 681 (Del. Super. 1951) (“It is . . .

axiomatic that a contract may incorporate by reference provisions

contained in some other instrument.”), or an officer that the Board

adds. Habets claims the provision does not suggest that the Board

may remove or terminate a KESP member.

WMI responds first that Section 1.1.4 unambiguously permitted

the Board to add and remove additional officers as KESP

participants, as the magistrate and the district court found. WMI

also asserts that the KESP does not incorporate Exhibit 1. WMI

relies on Star States Development Co. v. CLK, Inc., No. 93L-08-048,

1994 WL 233954 (Del. Super. 1994), for the proposition that

10
contracts must do more than merely mention a document to

incorporate that document. However, this reading is not entirely

correct. What Star States held was if a contract fails to specify

a document and its terms, but that document is an integral part of

a document that the contract does specify, the unspecified document

could be incorporated into the contract if that reading best serves

the parties’ intentions and is reasonable. 1994 WL 233954, at *5.

As the magistrate and the district court found, although

Section 1.1.4 used the word “additional” to describe the officers

added to the KESP’s benefits apart from Exhibit 1, which Habets was

not a part of before March 1990 or after May 1992, the clear

meaning and intent of Section 1.1.4 is that the Board was permitted

to “specify” from time to time those persons who were “key

executives” entitled to severance benefits upon a change in control

of WMI. Section 1.1.4 thus did not confer on any corporate officer

any vested right to continued participation in the KESP, nor did it

limit the Board’s exclusive power to “specify” participants.

Even if Exhibit 1 were incorporated into the KESP, we would

follow the common sense approach under Delaware law. See Falcon

Steel Co. v. Weber Eng’g Co., Inc., 517 A.2d 281, 286 (Del. Ch.

1986). That is, we refuse to incorporate by reference terms which

make a reasonable reading of the contract nonsensical and do not

support the parties’ reasonable intent. Star States, 1994 WL

233954, at *4 (citing Falcon Steel, 517 A.2d at 286). Thus, we

11
cannot incorporate the term – Habets’s name – that was admittedly

included on a previous version of Exhibit 1 not only because such

term is no longer a part of Exhibit 1, but also because this

reading would not support the Board’s power to “specify” from time

to time those KESP executives eligible to be participants at the

time of a change in control.

Habets next contends that Section 2.2 of the KESP prohibited

WMI from terminating a participant’s KESP rights without his prior

written consent. In other words, because the KESP incorporated

Exhibit 1, any removal of a name from Exhibit 1 without the

participant’s consent violates Section 2.2 because it would

unilaterally terminate a participant’s KESP benefits.

WMI reads Section 2.2 as simply prohibiting the Board from

amending, terminating, or suspending the KESP itself generally

without the consent of eligible participants adversely affected.

WMI argues this is why the Board did not obtain Habets’s consent in

May 1992 when it terminated his KESP membership by removing him

from Exhibit 1; that termination did not constitute a change to the

KESP plan generally but was an expression of the Board’s power to

specify participants in the KESP. In contrast, when WMI was in the

process of terminating the KESP entirely in August 1992, WMI sought

the consent of all eligible KESP participants pursuant to Section

2.2.

To accept Habets’s interpretation on this point would require

that this Court find the names of the participants themselves were

12
intended to be “plan provisions”: the amendment of which would

then trigger Section 2.2 and require the consent of those

participants adversely affected. This interpretation conflicts

with the plain meaning of Section 1.1.4, which defines participants

with reference to Exhibit 1 or a separate resolution of the Board,

and not with reference to any additional definition within the KESP

that would require compliance with Section 2.2 if amended. The

magistrate and the district court were thus correct in finding that

the KESP plainly intended that the Board retain the power to

specify KESP participants and did not contemplate allowing an

individual participant like Habets to essentially veto a Board

resolution removing him as a participant.

Finally, Habets argues the magistrate and the district court

misinterpreted Section 2.3. Habets contends Section 2.3 did not

bolster WMI’s right to unilaterally terminate a participant’s KESP

rights but simply provided that the KESP standing alone does not

guarantee a participant continued officer status or even continued

employment with WMI. Habets claims what Section 2.3 intended is

merely that the KESP is not considered an employment agreement.

WMI asserts that an ordinary reading of Section 2.3 clearly

conflicts with Habets’s interpretation of Section 2.2. WMI reads

Section 2.3 to plainly permit the Board to remove an employee from

an officer position, which reading Habets does not dispute. WMI

also implicitly reads Section 2.3 as thus permitting the Board to

identify and control which employees are KESP participants. To

13
preserve the plain meaning of Section 2.3 and Section 1.1.4, WMI

argues Section 2.2 must be construed as allowing the Board to

terminate individual KESP membership without that individual’s

consent.

The magistrate and the district court agreed with WMI and

found that participation in the KESP did not guarantee continued

status as an WMI employee in any capacity under Section 2.3, much

less “key executive” status. Overall, the magistrate and the

district court found no ambiguity in any of the KESP’s provisions

and that the Board had the discretion to and properly did so remove

Habets as a KESP officer participant in May 1992 at the Executive

Compensation Committee meeting prior to any change in control.

Thus, Section 1.1.4 defined a participant as a WMI employee who is

so designated by the Board as eligible for KESP benefits at the

time a change in control occurs; Section 2.2 only required the

individual consent of adversely affected participants when the KESP

generally was to be amended or terminated, not when an individual

participant was being removed by the Board; and Section 2.3

demonstrated the Board’s ability to remove officers.

To give effect to each and all of these plain provisions of

the KESP, see Sonitrol Holding Co. v. Marceau Investissements,

607 A.2d 1177, 1184 (Del. 1992), a participant’s rights under the

KESP must be construed as vesting only when a change in control

occurs, such that the Board is duly authorized to change a WMI

14
employee’s KESP participation status anytime before a change in

control. Here, the summary judgment evidence clearly indicated

that Habets was named a KESP participant by the Executive

Compensation Committee of the Board in March 1990, but the

Executive Compensation Committee plainly removed Habets from

participating in the KESP as of May 1992, which was long before the

change in control that occurred in July 1998. Therefore, we find

that the district court properly granted summary judgment to WMI.

Because we determine the provisions of the KESP unambiguously

gave the Board the right to remove Habets as a officer participant

in the KESP and that the summary judgment evidence showed that the

Board had done so, we do not address Habets’s extrinsic evidence

arguments. Habets also filed three motions on appeal, which were

carried with the case. As to Habets’s motion for award of

attorney’s fees and Habets’s motion to hold appellant’s motion for

attorney’s fees in abeyance pending the final determination in this

case, we DENY these motions because we find the district court’s

decision in favor of WMI was proper. As to Habets’s motion to

supplement the record on appeal, we also DENY this motion because

such additional materials are not necessary or appropriate for our

decision in this case.

CONCLUSION

Having carefully reviewed the record of this case and the

parties’ respective briefing, and for the reasons set forth above,

15
we conclude that the district court properly conducted a de novo

review of the magistrate’s recommendation and properly adopted that

recommendation to grant summary judgment to WMI. Therefore, we

AFFIRM the decision of the district court below.

AFFIRMED.

16
Clement, Circuit Judge, Dissenting:

Summary judgment is problematic for three reasons. First, a

genuine issue of material fact exists as to whether WMI removed

Habets as an officer. Second, the KESP unambiguously supports Habets’s position.

Third, the extrinsic evidence compels Habets’s interpretation of the KESP.

A. Genuine Issue of Material Fact

A glaring issue of material fact exists as to whether WMI removed Habets as an officer.

According to WMI’s interpretation of the KESP, WMI was authorized to unilaterally terminate

Habets’s KESP rights because WMI removed Habets as an officer prior to terminating the KESP in

its entirety. That removal, WMI alleges, occurred during the regional consolidation. Thus, even

accepting WMI’s interpretation of the KESP, WMI may only succeed on summary judgment if the

evidence establishes the factual conclusion that WMI removed Habets as an officer during the

regional consolidation.

The evidence makes clear that this material fact is not established. Undisputed evidence exists

that Habets’s title, employment responsibilities, and compensation remained the same after the

regional consolidation. Furthermore, WMI fails to produce any evidence that Habets was removed

in accordance with WMI’s bylaws. The record contains no documentation of any Board resolution

to remove him; no minutes of a Board meeting where the alleged removal was discussed; no Board

vote on the alleged removal; and no documentation that Habets received notice of the alleged

removal. The only evidence that WMI relies on to establish this material fact is an annual report that

does not list Habets as an officer. This evidence alone is insufficient to conclusively establish on

summary judgment that the Board did in fact remove Habets as an officer in conformity with bylaw

17
procedures.

B. Plain meaning of the KESP

The KESP does not unambiguously provide WMI the ability to terminate Habets’s KESP

rights without his consent. Section 1.1.4 defines “Participant” to include “officers of the Company

. . . who are listed on Exhibit 1 . . . .” Section 2.2 states that “the Company shall not amend,

terminate or suspend the Plan or any provision thereof . . . without the prior written consent of any

Participant adversely affected thereby.” These sections imply that if the KESP incorporates Exhibit

1 as a provision of the KESP, then Section 2.2 prohibits WMI from removing a Participant by

amending Exhibit 1 without that Participant’s consent.

Delaware caselaw compels the conclusion that Exhibit 1 is a KESP provision. “Where a

contract is executed which refers to another instrument and makes the conditions of such other

instrument a part of it, the two will be interpreted together as the agreement of the parties.” State

ex rel. Hirst v. Black, 83 A.2d 678, 681 (Del. Super. 1951). Here, the KESP expressly refers to

Exhibit 1, and makes it a condition of participation in the KESP. As an incorporated instrument,

Exhibit 1 is a provision of the KESP. Exhibit 1 is thus subject to Section 2.2’s statement that before

the Board can amend “any provision” of the KESP, the Board must obtain “written consent of any

Participant adversely affected . . . .” Thus, any Participant adversely affected by an amendment to

Exhibit 1 must provide written consent before that amendment is adopted.

The majority opinion suggests an alternative interpretation of the KESP that results in the

rights vesting when a change in control occurs. This interpretation fails for two reasons. First, at oral

18
argument, WMI specifically confirmed that a Participant’s rights vest upon being listed on Exhibit 1.1

Second, Section 1.1.4 provides that an employee must be made a Participant “prior to any Change

in Control.” Participant status, i.e., having rights under the KESP, must therefore occur before a

change in control. Thus, KESP rights vest before a change in control; they vest when the employee

is listed on Exhibit 1. The majority’s interpretation is flawed.

Contrary to the majority’s holding, interpreting the KESP to require consent of a Participant

before termination is consistent with the plain meaning of Section 1.1.4. Section 1.1.4 provides that

“additional officers” may obtain Participant status as the Board “may from time to time specify [an

officer] as being a Participant . . . .” In specifying that an employee is a Participant, the Board

implicitly specifies that other employees—in particular, those employees that the Board fails to

specify as being Participants—are not Participants. This implicit specification of employees that are

not Participants does not imply, however, that by specifying an employee as being a Participant, the

Board has the ability to specify that Participants can lose their Participant status. That is, the implicit

conclusion that employees not named as Participants are not Participants is the extent to which the

plain meaning of Section 1.1.4 allows the Board to specify an employee as not being a participant.

Nevertheless, the majority opinion concludes that Section 1.1.4 allows the Board to specify that

Participants must relinquish their Participant status. This interpretation reads into the phrase “specify

as being a Participant” a substantive Board power, i.e., the ability to specify as not being a

1
When asked if an employee’s rights vest upon being listed on
Exhibit 1, WMI answered affirmatively. After responding “Yes” to
that question, WMI proceeded to assert that the Board could remove
the Participant without consent. WMI is thus arguing that despite
the fact that KESP rights vest when an employee is listed on
Exhibit 1, the Board can unilaterally remove a Participant.

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Participant, even after an employee has obtained Participant status. Section 1.1.4 neither states nor

implies that the Board can remove a Participant without that Participant’s consent.

C. Extrinsic evidence surrounding the KESP

The extrinsic evidence further supports Habets’s interpretation of the KESP. The following

facts arise from the summary-judgment evidence: (1) Getz’s August 1992 memo suggests that WMI

needed to obtain waivers from Part icipants to terminate their KESP rights; (2) WMI obtained a

written waiver from Allman, the only other employee whose KESP rights WMI terminated during

the regional consolidation; (3) WMI sent several letters to Habets suggesting that WMI recognized

Habets continued to have KESP rights after the regional consolidation, and that Habets needed to

give consent for WMI to terminate those rights; (4) WMI’s earlier pleading states that Habets was

a Participant “until the termination of the KESP by mutual agreement”;2 and (5) WMI sought to

secure consent from other Participants before terminating their KESP rights. These facts establish

the inference that the KESP precluded the Board from unilaterally terminating Habets’s KESP rights.

WMI attempts to explain away these facts. Its explanations do not change the legal standard

for summary judgment, however, that all inferences from underlying facts are to be drawn in favor

of Habets. See Matsushita Elec. Indus. Co. v. Zenith Radio Co., 475 U.S. 574, 587 (1986). Viewing

this evidence in the light most favorable to Habets necessitates interpreting the KESP so that it

precludes WMI from unilaterally terminating Habets’s KESP rights. Summary judgment should have

been denied. I respectfully dissent.

2
Although a superceded pleading is not binding on a party under the judicial-estoppel doctrine,
the court can still consider that pleading as rebuttable evidence. Borel v. United States Cas. Co., 233
F.2d 385, 387-88 (5th Cir. 1956).

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