United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS F I L E D
FOR THE FIFTH CIRCUIT December 9, 2003
____________________
No. 03-40144 Charles R. Fulbruge III
____________________ Clerk
OVIDIO MALACARA, et al.,
Plaintiffs,
OVIDIO MALACARA; DAVID RINCONES,
Plaintiffs-Appellants,
V.
RUSSELL GARBER, doing business as Garber Farms
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Before JOLLY and WIENER, Circuit Judges, and ROSENTHAL,* District
Judge.
ROSENTHAL, District Judge:
This appeal requires this court to examine the family business
exemption from the Migrant and Seasonal Agricultural Worker
Protection Act (“AWPA”), 29 U.S.C. §§ 1801 et seq. Appellants, two
Texas-based migrant farmworkers, alleged that appellee, the owner
*
District Judge of the Southern District of Texas, sitting
by designation.
of a family farm, deliberately discouraged them from accepting
employment so he could import workers under a program that requires
farmers first to attempt to hire American workers before receiving
visas for foreign workers. Appellants alleged that appellee’s
conduct violated the AWPA and that his misrepresentations of the
terms and conditions of employment at his farm constituted fraud
under Texas law. The district court granted appellee’s motion for
summary judgment, dismissing the AWPA claim based on the family
business exemption from the statute and dismissing the state law
fraud claim based on a failure to raise a fact issue as to injury.
We affirm the district court’s grant of summary judgment.
I. Background
Russell Garber and his wife own and operate a farm in Ohio.
Beginning in 1999, Garber recruited migrant workers from Brazil,
where he also owns a farming operation. Garber applied for visas
for these farmworkers under the H-2A program administered by the
United States Department of Labor (“DOL”). Under this program, the
DOL grants foreign workers temporary work visas, but only if the
employer first demonstrates that he has made a good faith, active
attempt to recruit American workers but could not find sufficient
able, willing, and qualified workers for his needs. 8 U.S.C. §
1188(a)(1)(A). When Garber sought H-2A visas for Brazilian workers
in 2001, he submitted a report to the DOL stating that he had
unsuccessfully attempted to find American migrant workers by word-
2
of-mouth spread through neighbors and acquaintances; by requesting
help from the Farm Bureau, a local farm supply organization, and
the Agricultural Extension Service, a statewide agricultural
organization; and by filing a job order with the Ohio state
employment services agency. Before agreeing to issue the visas,
the DOL required Garber to publish job advertisements in Texas,
which has traditionally been a source of farmworkers for Ohio, and
to use the services of the Texas Workforce Commission (“TWC”). The
advertisements told prospective workers interested in work
opportunities at Garber’s farm to contact the TWC. When
prospective workers responded, the TWC relayed to them Garber’s
terms and conditions of employment. The TWC did not interview
prospective applicants or make any job offers. Rather, the TWC
served as a clearinghouse, where a prospective employer could post
information about available work and prospective applicants could
learn about the job opportunities.
Ovidio Malacara and David Rincones, both residents of McAllen,
Texas, contacted the TWC after learning about job opportunities on
Garber’s farm through the Texas advertisements. Garber flew from
Ohio to Texas to interview Malacara, Rincones, and several others
who had contacted the TWC. Garber conducted the interviews in the
TWC office. The TWC provided an interpreter for Malacara and
others who spoke no English. Malacara and Rincones alleged that
in the interviews, Garber tried to discourage them from taking a
3
job by misrepresenting the terms and conditions of the work.
Malacara and Rincones claimed that Garber told them the work would
be done in “cold snow” and offered to fly them to Ohio “in a manner
that suggested Garber hoped they were afraid of flying.” Rincones,
who spoke only English, alleged that Garber warned that the
inability to speak Spanish could be a problem in the workplace.
Despite these alleged efforts at discouragement, Malacara and
Rincones both expressed interest in taking the jobs. Garber
promised to contact them shortly.
Garber responded that he accurately described the work at his
farm during the interviews. Garber claimed that, in response to
Rincones’s inquiry about the language that would be spoken on the
job and in the living quarters, he informed Rincones that he and
his son – who spoke English – were “running the show” in the
fields. Garber contended that Rincones obviously knew that Garber
spoke English and should have assumed that Garber’s son did as
well. Garber told Rincones that he might be the only English-
speaker in the living quarters. Garber asserted that he believed
he had hired Rincones and Malacara at the interview; that Rincones
had accepted; and that Malacara had not firmly accepted.
Garber telephoned Rincones to arrange his transportation to
Ohio. Rincones alleged that during the telephone conversation,
Garber emphasized the problem Rincones’s inability to speak Spanish
could present at the work site, as well as the safety risks of the
4
job. Garber alleged that he answered Rincones’s prior question
about the language spoken in the living quarters and notes that,
during the telephone call, “there was some confusion over whether
the statement by Garber about Rincones being the only English-
speaking person related to the job or the living quarters.”
Rincones claimed that this conversation dissuaded him from
traveling to Ohio to work for Garber. Rincones told Garber that he
had reconsidered and would not be accepting employment with him.
Garber also telephoned Malacara. Malacara claimed that during
this conversation, he understood only the words “bus ticket” and
never communicated to Garber any lack of interest in coming to
Ohio. Garber disputed this version of events, claiming that
Malacara said that he had decided not to take the job in Ohio.
Malacara asserted that when he did not hear from Garber again or
receive a ticket for travel to Ohio, he “ultimately believed that
Garber either had not really hired [him] at the interview, or that
he had decided to reject [him] after the interview.”
Malacara and Rincones sued Garber, alleging violations of the
AWPA and the Immigration and Nationalities Act (“INA”) and fraud
under Texas law. After discovery, Garber moved for summary
judgment on all three claims. The district court granted Garber’s
motion in its entirety. The court found that Garber fell under the
family business exemption from the AWPA’s requirements, available
if a farmer’s solicitation, recruitment, or furnishing of
5
farmworkers is performed solely by the farmer or by immediate
family members. As to the second cause of action, the court found
that the plaintiffs had no private right of action under the INA.
As to the fraud claim, the court found that, in response to the
summary judgment motion, Rincones had failed to present or point to
evidence raising a fact issue as to whether he was damaged, an
essential element of the fraud cause of action.
Malacara and Rincones appeal the district court’s dismissal of
the AWPA claims, and Rincones appeals the district court dismissal
of his fraud claim.
II. Analysis
This court reviews a district court’s grant of summary
judgment de novo, applying the same standards as the district
court. BGHA, LLC v. City of Universal City, Tex., 340 F.3d 295,
297 (5th Cir. 2003). Summary judgment is appropriate if there are
no genuine issues of material fact and the moving party is entitled
to judgment as a matter of law. Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“Rule 56(c)
mandates the entry of summary judgment . . . against a party who
fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party
will bear the burden of proof at trial.”); Worthy v. New Orleans
S.S. Ass’n/Intern. Longshoreman’s Ass’n, AFL-CIO Pension Plan, 342
F.3d 422, 426 (5th Cir. 2003). In deciding a summary judgment
6
motion, a court must review the facts drawing all reasonable
inferences in the light most favorable to the nonmovant. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986); Cabillo v. Cavender Oldsmobile, Inc., 288 F.3d
721, 725 (5th Cir. 2002).
A. The AWPA and the Family Business Exemption
The AWPA is designed “to assure necessary protections for
migrant and seasonal agricultural workers.” 29 U.S.C. § 1801. The
AWPA imposes requirements on labor contractors, agricultural
employers, and agricultural associations. Farmers must disclose
the terms and conditions of employment at the time of recruitment,
§ 1821(a); must make the disclosures in a language the worker will
understand, § 1821(g); may not convey false or misleading
information, § 1821(f); and must comply with the parties’ work
arrangements, § 1832(c). Malacara and Rincones alleged that Garber
violated each of these provisions.
Family farmers who meet certain criteria are exempt from the
statute. The AWPA provides:
(a) The following persons are not subject to
this chapter –
(1) Family business exemption. – Any
individual who engages in a farm labor
contracting activity on behalf of a farm . . .
which is owned or operated exclusively by such
individual or an immediate family member of
such individual, if such activities are
performed only for such operation and
exclusively by such individual or an immediate
family member, but without regard to whether
7
such individual has incorporated or otherwise
organized for business purposes.
29 U.S.C. § 1803(a)(1). The term “farm labor contracting activity”
is defined as one of six types of acts: “recruiting, soliciting,
hiring, employing, furnishing, or transporting any migrant or
seasonal agricultural worker.” 29 U.S.C. § 1802(6). If a non-
family member performs any labor contracting activity, that
“spoils” an agricultural employer’s claim to the exemption. Flores
v. Rios, 36 F.3d 507, 510 (6th Cir. 1994).
It is undisputed that Garber and his wife are the sole owners
of the Ohio farm and that Garber recruited workers exclusively for
the family farm. The issue is whether Garber used non-family
members to “recruit” farmworkers, so as to make Garber ineligible
for the family farm exemption from the AWPA. Appellants contend
that Garber’s use of the state employment agencies to locate
prospective employees and his use of friends and neighbors to
spread information about job opportunities through word-of-mouth
makes him ineligible for the family business exemption. Garber
responds that neither his use of the state agencies nor of friends
or neighbors makes him ineligible for the exemption, arguing that
he did not delegate to others any of the farm labor contracting
activities set out in the statute.
One appellate court has considered whether a farmer’s use of
a state employment service to help locate prospective workers makes
that farmer ineligible for the family business exemption. In
8
Flores, a tomato farmer located in Ohio hired Texas farmworkers
referred by the Ohio Bureau of Employment Services (“OBES”). 36
F.3d at 512. The defendant’s “interactions with OBES [we]re a two-
way street.” Id. Administrators from the OBES would contact the
defendant in an effort to place particular workers, and the
defendant would contact the OBES to post job listings. Id. The
court held that this use of the state agency did not defeat the
family business exemption because the agency did not conduct
“contracting activity” under the AWPA. Id. at 513. The court
explained that all the “practices listed by Congress as examples of
farm labor contracting activity are distinctly contractual in
nature” and that the statutory language of the AWPA exemption could
not be defined “without regard for the contractual context in which
the exemption applies.” Id.
The Flores court relied on Calderon v. Witvoet, 999 F.2d 1101
(7th Cir. 1993), which emphasized the context in which “farm labor
contracting activities” are defined:
This definition collects a number of
contractual endeavors: making a contract of
employment (“hiring”), maintaining a worker in
the labor force (“employing”), preparing to do
these things (“recruiting” and “soliciting”),
and doing them for others (“furnishing”). The
final term in this sequence, “transporting”,
can be understood as still another contractual
activity: obtaining and paying for a ticket
that brings the worker to the farm or sends
him to the next one.
9
Flores, 36 F.3d at 513 (quoting Calderon, 999 F.2d at 1103-04)
(finding that defendants were entitled to the AWPA exemption
despite the fact that non-family members drove farm bus, trucks,
and cars). The Flores court explained that the OBES is a state
agency that “merely provides the worker with a chance to find a job
at a farm in need of labor.” Id. Noting that the agency’s
activities were gratuitous; the agency represented neither the
employee nor the employer; and the employer alone had the power to
hire workers, the Flores court held that the agency did not
recruit, solicit, or furnish workers within the meaning of the
AWPA. Id. The farmer’s use of the agency did not make him
ineligible for the family business exemption. Id.
Malacara and Rincones do not argue that the TWC performed
services materially different from the OBES. In this case, as in
Flores, the state agency told workers of job opportunities and
identified interested workers to prospective employers. Neither
the OBES in Flores nor the TWC in this case made job offers.
Rather, Malacara and Rincones contend that Flores is incorrectly
decided. They contend that under the AWPA, such a use of a state
agency to look for workers forfeits the family business exemption.
Garber responds that no case has disagreed with Flores in the
years since it issued. Garber emphasizes that the position
appellants advocate would create a Hobson’s choice for a farmer who
chooses to avail himself of the H-2A visa program and otherwise
10
qualifies for the family business exemption from the AWPA. Under
the H-2A visa program, the DOL requires farmers to use state
employment agencies to locate domestic workers before allowing
visas to issue to foreign workers. Malacara and Rincones argue
that surrender of the family farm exemption should be viewed as “a
price of admission into the H-2 and H-2A programs,” requiring a
farmer to choose between the family business exemption under the
AWPA and the opportunity to hire foreign workers under the H-2A
visa program.
The definition of “farm labor contracting activities” under
the AWPA adopted in Flores and Calderon is consistent with the
statute’s language and structure. The approach that Malacara and
Rincones advocate would“divorc[e]” the statutory term “from its
context.” Calderon, 999 F.2d at 1104. In drafting the AWPA,
Congress defined recruiting, soliciting, hiring, employing,
furnishing, and transporting within the scope of contracting
activities. It is a “fundamental principle of statutory
construction (and, indeed, of language itself) that the meaning of
a word cannot be determined in isolation, but must be drawn from
the context in which it is used.” Deal v. U.S., 508 U.S. 129, 132,
113 S.Ct. 1993, 124 L.Ed.2d 44 (1993); see also Flores, 36 F.3d at
513 (“Laws cannot be interpreted by snatching single words out of
statutory sentences and matching these words – without regard for
11
context – up against one of the many definitions of that word found
in the advocate’s dictionary of choice.”).1
The record is undisputed that Garber did not use state job
agencies to recruit “in any contractual sense.” Flores, 36 F.3d at
513. Like the OBES in Flores, the state employment agencies that
Garber used charged no fee for their services and did not purport
to represent either the employer or employee. Both Garber and the
workers remained free at all times to accept or reject any agency
recommendation. An agency referral provided the worker with no
assurance of employment. Garber did not delegate any authority to
hire to the TWC, but rather flew to Texas personally to interview
applicants. No one at the state employment offices offered a job
to applicants; instead, Garber personally extended job offers to
them. Garber did not delegate statutory contracting activities to
the TWC or other state agencies.
Malacara and Rincones rely on a DOL opinion letter stating
that the use of a state employment service agency to locate workers
vitiates the family business exemption. They argue that the letter
1
Malacara and Rincones cite the repealed Farm Labor
Contractor Registration Act (“FLCRA”), 7 U.S.C. §§ 2041 et seq.,
the AWPA’s predecessor statute, and this court’s decision in
Montelongo v. Meese, 803 F.2d 1341 (5th Cir. 1986), to support
their argument. Appellants’ citations to the FLCRA and Montelongo
v. Meese are unhelpful. The FLCRA has been repealed. In
Montelongo, which held that a person was “recruiting” on behalf of
a farmer where that person told workers about potential employment
and referred them to the farm where they were summarily accepted
upon arrival, the court construed language under the FLCRA. 803
F.2d at 1346.
12
is entitled to deference under Skidmore v. Swift & Co., 323
U.S.134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944).2 In the opinion
letter, issued on April 14, 1994, the DOL asserted that the family
business exemption “by its plain terms, does not apply to any
business or person using the services of a state employment service
agency to obtain workers.” Interpretations contained in opinion
letters are not controlling and should be followed only insofar as
they have “power to persuade.” Christensen v. Harris County, 529
U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000); Moore v.
Hannon Food Serv., Inc., 317 F.3d 489, 497 (5th Cir. 2003); see
also Salinas v. Rodriguez, 963 F.2d 791, 793 (5th Cir. 1992). The
DOL opinion letter is not persuasive. That letter was based “upon
a reexamination of the legislative history, the statute, the
regulations issued thereunder, and recent judicial interpretations
concerning the intent of Congress.” Significantly, the letter was
issued before the Sixth Circuit’s ruling in Flores and cited
“recent judicial interpretations” that were rejected in Flores.
The basis of the DOL opinion letter is no longer valid after
Flores. Indeed, if the DOL were to prevail on both (1) its
requirement that farmers work through state agencies and (2) the
position espoused in its opinion letter, the DOL would, in effect,
2
Skidmore requires a court to accord deference to an
administrative judgment, “depend[ing] upon the thoroughness evident
in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all those
factors which give it power to persuade, if lacking power to
control.” 323 U.S. at 140.
13
be repealing the family farm exemption – a power enjoyed
exclusively by Congress and not available to an executive branch
department.
Malacara and Rincones argue that the family business exemption
should be construed narrowly because Congress intended the AWPA to
be remedial in nature. See H.R.Rep. No. 885, at 12, U.S.CODE CONG.
AND ADMIN. NEWS 1982 at 4558 (“The Committee intends that the
foregoing exemptions be construed narrowly in a manner that
furthers the remedial purposes of this Act.”); see also Bracamontes
v. Weyerhaeuser Co., 840 F.2d 271, 276 (5th Cir. 1988); Charles v.
Burton, 169 F.3d 1322, 1334 (11th Cir. 1999) (“. . . since the AWPA
is a remedial statute, we must construe it broadly.”), r’hrg
denied, 182 F.3d 938 (11th Cir. 1999), cert. denied, Burton v.
Charles, 528 U.S. 879, 120 S.Ct. 191, 145 L.Ed.2d 160 (U.S. 1999);
Flores, 36 F.3d at 510. They argue that, in enacting the AWPA in
1983 and in amending the INA and the AWPA in 1986, Congress
implicitly endorsed the result that farmers who use the H-2 and H-
2A programs could not qualify for the AWPA’s family business
exemption. The court in Flores rejected a similar argument,
finding that courts must not “obliterate” or “eviscerate” the
family farm exemption for farmers who use public employment
services. See Flores, 36 F.3d at 510. Accepting Malacara’s and
Rincones’s proposition would exclude family farmers from the H-2A
program unless they relinquish the protection Congress specifically
14
granted under the AWPA. A family farmer’s compliance with the
mechanism Congress devised to promote the employment of American
workers under the H-2A program would undermine the exemption carved
out from the AWPA to protect family farmers. “Congress has
embraced a federal policy designed to benefit the oft-beleaguered
family farmer.” Id. “Federal laws are shot through with favorable
rules for small businesses and family farms.” Calderon, 999 F.2d
at 1105.
The use of state employment agencies to bring workers
interested in out-of-state jobs together with family farmers,
including those farmers considering using foreign workers,
supports, rather than frustrates, the remedial goals of the AWPA.
“Mindful of AWPA’s protective goals, we see no reason to deter
family farmers from using the public employment service when the
challenged practice poses no threat to workers . . . . In fact,
the government’s presence in the labor market can only serve to
protect workers like [the plaintiff]. The effectiveness of the
public employment service directly reduces the workers’ need to
rely on potentially-abusive crew leaders to find agricultural
employment.” Flores, 36 F.3d at 513. The AWPA and the H-2A
program can effectively coincide to promote the dual interests of
protecting family farmers from burdensome litigation while
expanding the potential labor market for American workers.
15
Malacara and Rincones also argue that Garber lost the family
business exemption by using neighbors to spread news of job
opportunities through word-of-mouth. The evidence they present to
substantiate this claim is Garber’s statement in his application
for H-2A visas that he “advertised by word of mouth.” The record
reveals that in “word-of-mouth referrals,” Garber told “neighbors,
acquaintances, and so on” that “I need help.” Neither the record
nor the parties’ briefs indicate a more extensive use of any non-
family “recruiters.”
In Calderon, the laborers’ oral reports of their experiences
in the defendant’s farm allegedly led other migrant workers to work
for the defendant. The Seventh Circuit held that unsolicited
remarks by existing workers to their friends and family that led to
additional job applications would not defeat the family farm
exemption. 999 F.2d at 1105. “What workers tell their friends is
beyond the owners’ control, and treating such activities as ‘farm
labor contracting activities’ would gut the exemption – for it is
impossible to suppress word-of-mouth reports about the job.” Id.
By contrast, the Sixth Circuit in Flores found that the defendant’s
word-of-mouth activity did defeat his family farm exemption. In
Flores, an employee of the tomato farmer recommended a worker to
the farmer. 36 F.3d at 515. The employee, not the farmer,
extended the worker a job offer and instructed him to move his
family from Texas to Ohio. Id. The farmer never talked to the
16
worker during this process. Id. The Flores court explained that,
while “an employee’s ‘gratuitous recommendation’ . . . ha[s] no
effect on the farmer’s eligibility for the exemption,” a farmer’s
“specific delegation of recruiting authority to an employee . . .”
defeats the exemption. Id. The court explained that the
defendant’s employee was “solely responsible” for conveying the
offer of employment to the plaintiff and encouraging the plaintiff
and his family to move to the defendant’s farm to begin work. Id.
The farmer’s minimal involvement in the hiring decision showed that
the farmer had delegated hiring authority to his employee. Id. at
516. “If the [farmers] wish to remain exempt, they are fully
empowered to do so – by speaking directly to the employee they are
hiring.” Id.
Malacara and Rincones argue that the touchstone for deciding
whether a farmer is responsible for the activities of non-family
intermediaries under the AWPA should be intentionality. They cite
Calderon for the proposition that the “focus” should be on the
farmer’s “own decisions and actions – including the choice, if [he]
made one, to delegate” farm labor contracting activities to a non-
family member. 999 F.2d at 1105. They contend that Flores
illustrates intentionality by evaluating the farmer’s “own
decisions and actions.” 36 F.3d at 515. The Seventh Circuit in
Calderon held that the focus is on whether the farmer had in fact
delegated recruitment and hiring authority. 999 F.2d at 1105. In
17
Flores, the Sixth Circuit emphasized the evidence of the delegation
of hiring authority, noting “the lack of any direct contact between
the employer and the migrant worker, that cost [the defendant] its
exemption.” 36 F.3d at 516.
The record does not indicate that Garber delegated recruiting
or hiring authority. Garber himself extended the job offers to
applicants, only after personally interviewing them. Without
evidence that Garber ceded any control over recruiting or hiring to
friends or neighbors, or even that they referred any workers to
him, the record shows no delegation of recruiting authority that
would defeat the AWPA exemption. To the contrary, the record
reveals that Garber took pains to maintain his AWPA exemption.
After the DOL required him to use the TWC to try to locate workers
in Texas, Garber traveled to Texas to meet with interested
applicants, interviewed them himself, and made the job offers
himself. This record defeats an inference of delegation.
Malacara and Rincones contend that Garber failed to meet the
burden of proving entitlement to the family business exemption, an
affirmative defense. A party asserting an affirmative defense
“must establish beyond peradventure all of the essential elements
of the . . . defense to warrant judgment in his favor.” Chaplin v.
NationsCredit Corp., 307 F.3d 368, 372 (5th Cir. 2002) (quoting
Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). The
record evidence as to Garber’s employment activities is undisputed.
18
The contested issue is whether Garber is entitled to the family
business exemption, given the limited involvement of non-family
third parties. This court holds that because the undisputed
evidence shows that the third parties performed no farm labor
contracting activities under the AWPA, summary judgment that Garber
qualified for the family business exemption was proper.
B. The Fraud Claim
Under Texas law, the elements of a fraud cause of action are:
(1) a material representation; (2) it was false when made; (3) the
speaker either knew it was false or asserted it without knowledge
of its truth; (4) the speaker intended that it be acted upon; (5)
the party acted in reliance; and (6) the party was injured as a
result. Great Plains Trust Co. v. Morgan Stanley Dean Witter &
Co., 313 F.3d 305, 322 (5th Cir. 2002); Formosa Plastics Corp. USA
v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex.
1998). Garber moved for summary judgment, stating in his motion
that Rincones had failed to show evidence of any of the fraud
elements, including injury. In his response to the summary
judgment motion, Rincones did not address this argument or point to
evidence of injury. The district court granted Garber’s summary
judgment motion, finding that Rincones had failed to point to any
record evidence showing that Garber’s alleged fraud caused Rincones
any injury.
19
Rincones contends that the district court improperly entered
summary judgment “sua sponte.” He notes that Garber’s summary
judgment motion focused on whether Garber had made
misrepresentations and whether Rincones had reasonably relied on
them. Rincones argues that the district court should have at least
notified him that it intended to consider the lack of evidence of
injury as a ground for summary judgment. Citing Nowlin v.
Resolution Trust Corp., 33 F.3d 498, 504 (5th Cir. 1994), Rincones
contends that a district court must provide the plaintiff a minimum
of ten days notice before granting summary judgment “sua sponte.”
Garber responds that a district court has an inherent “power
to enter summary judgments ‘sua sponte,’ so long as the losing
party was on notice that [he] had to come forward with all of [his]
evidence.” Celotex, 477 U.S. at 326. Garber argues that his
motion for summary judgment placed Rincones on notice that Garber
contended the record could not support any of the elements of his
fraud claim.
Garber’s motion for summary judgment did put Rincones on
notice that he needed to point to or submit evidence as to each
element of the fraud cause of action. The motion listed the six
elements of a fraud cause of action under Texas law and argued that
Garber was entitled to summary judgment “[b]ecause Plaintiffs
cannot prove any of these elements much less all of them.” Nowlin
does not state that notice is provided only when a movant
20
specifically identifies the absence of evidence as to an element of
the cause of action, but rather holds that adequate notice exists
when the losing party is aware “that [he] had to come forward with
all of [his] evidence.” 33 F.3d at 504 n. 9 (quoting Celotex, 477
U.S. at 326; Judwin Props., Inc., v. U.S. Fire Ins. Co., 973 F.2d
432, 436-37 (5th Cir. 1992)). A movant’s burden is to point out
the absence of evidence supporting the nonmovant’s case. Celotex,
477 U.S. at 323; Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir.
1996). To survive summary judgment, the nonmovant must submit or
identify evidence in the record to show the existence of a genuine
issue of material fact as to each element of the cause of action.
Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 349 (5th
Cir. 2001); Fontenot, 780 F.2d at 1195. The district court judge
did not grant summary judgment “sua sponte” or with inadequate
notice to Rincones.
Rincones further contends that the record contained sufficient
evidence of injury to preclude summary dismissal of the fraud
claim. He states that evidence in the record showed that Garber’s
contract with Rincones would have been worth $10,193.40 in wages
plus free housing, while he earned only $3,710.78, with no housing,
from the job he obtained in lieu of employment with Garber. This
evidence was in Rincones’s deposition, the transcript of which
Garber submitted as an exhibit to the district court. Rincones did
not, however, mention this evidence in his brief.
21
When evidence exists in the summary judgment record but the
nonmovant fails even to refer to it in the response to the motion
for summary judgment, that evidence is not properly before the
district court. See Ragas v. Tennessee Gas Pipeline Co., 136 F.3d
455, 458 (5th Cir. 1998); Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 916 (5th Cir. 1992), cert. denied, 506 U.S. 832, 113 S.Ct. 98,
121 L.Ed.2d 59 (1992). “Rule 56 does not impose upon the district
court a duty to sift through the record in search of evidence to
support a party’s opposition to summary judgment.” Ragas, 136 F.3d
at 458; Stults, 76 F.3d at 657; Forsyth v. Barr, 19 F.3d 1527, 1537
(5th Cir. 1994), cert. denied, 513 U.S. 871, 115 S.Ct. 195, 130
L.Ed.2d 127 (1994); Skotak, 953 F.2d at 916 n. 7; see also Nissho-
Iwai American Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988)
(it is not necessary “that the entire record in the case . . . be
searched and found bereft of a genuine issue of material fact
before summary judgment may be properly entered”); cf. U.S. v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like
pigs, hunting for truffles buried in briefs.”). Because Rincones
did not identify any evidence of damages in his summary judgment
response, the evidence was not properly before the district court
and will not be considered here.3
3
Appellants initially argued that the district court failed
to credit their evidence of damages, but conceded in their reply
brief that “after re-reviewing the law, [they] agree with the
Appellee that, post-Celotex, a district court need review only
those portions of the record called to the court’s attention by the
22
This court affirms the district court’s grant of summary
judgment on the fraud claim.
III. Conclusion
The district court correctly granted summary judgment to
Garber on the AWPA claims by finding that he qualified for the
family farm exemption and correctly granted summary judgment
against Rincones on his fraud claim. The judgment below is
AFFIRMED.
parties, and not the entire record, before granting summary
judgment.”
23
Malacara v. Garber
Court: Court of Appeals for the Fifth Circuit
Date filed: 2003-12-12
Citations: 353 F.3d 393
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