UNITED STATES COURT OF APPEALS For the Fifth Circuit __________________________________________
No. 00-50074 SUMMARY CALENDAR _________________________________________
ANDREA D. HATTEBERG, Plaintiff-Appellant,
v.
ADAIR ENTERPRISES INCORPORATED; FULBRIGHT & JAWORSKI, LIMITED LEGAL PARTNERSHIP; STEWART W. GAGNON; JONATHAN GOLDHOR; DONALD O. JANSEN; JOY M. SOLOWAY; LISA D. HARBOUR; JERYL GOLUB; JOETTA JANCZAK; JAMES RICHARD HATTEBERG, Defendants-Appellees.
__________________________________________
On Appeal from the United States District Court for the Western District of Texas Midland-Odessa Division (M0-99-CV-164) __________________________________________ November 8, 2000
Before REYNALDO G. GARZA, DAVIS, and DENNIS, Circuit Judges.
PER CURIAM:1
Andrea D. Hatteberg appeals the federal district court’s dismissal with prejudice of her
Racketeer Influenced and Corrupt Organizations Act and negligent misrepresentation claims and
dismissal without prejudice of her legal malpractice and abuse of process claims. For the reasons
stated below, we affirm.
1 Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. 1. Factual and Procedural Background
This case arises out of a divorce between Andrea D. Hatteberg (hereinafter “Ms.
Hatteberg”) and James Richard Hatteberg (hereinafter “Mr. Hatteberg”) (collectively referred to
hereinafter as the “Hattebergs”). On October 1, 1992, a state family law court issued a divorce
decree and entered a Qualified Domestic Relations Order (hereinafter the “First Qualified Order”).
At the time of the divorce, Mr. Hatteberg worked for Red Adair Company, Inc. (hereinafter “Red
Adair”). In the First Qualified Order, the state family law court valued and divided the
Hattebergs’ benefits which had accrued in Red Adair’s employee profit sharing plan (hereinafter
the “Plan Assets”). The state family law court valued and divided the Plan Assets with a formula
used for a defined benefit plan.
Ms. Hatteberg appealed the First Qualified Order on the grounds that the state family law
court improperly valued and divided the Plan Assets. Ms. Hatteberg contended that the state
family law court should value and divide the Plan Assets with a formula used for a defined
contribution plan. The state appellate court agreed with Ms. Hatteberg, reversed the state family
law court, and remanded the case for a proper division of the Plan Assets. See Hatteberg v.
Hatteberg, 933 S.W.2d 522, 531 (Tex. App.–Houston [1st Dist.] 1994, no writ).
On remand, the state family law court entered a second Qualified Domestic Relations
Order (hereinafter the “Second Qualified Order”). In the Second Qualified Order, over Ms.
Hatteberg’s objections, the state family law court again valued and divided the Plan Assets with a
formula used for a defined benefit plan. Ms. Hatteberg appealed the Second Qualified Order on
the same grounds as the First Qualified Order.
On May 2, 1997, while her appeal of the Second Qualified Order was pending, the
2 Hattebergs reach a mediated settlement regarding the valuation and division of the Plan Assets.
The Hattebergs agreed that Ms. Hatteberg would receive $400,000 of the Plan Assets adjusted
for all earnings or losses and for other changes in value from December 31, 1991 until the date of
distribution to her. The Hattebergs further agreed that Ms. Hatteberg would dismiss her appeal of
the Second Qualified Order and that they would submit to the state family law court an agreed
order that valued and divided the Plan Assets in accordance with the mediated settlement
agreement. Accordingly, Ms. Hatteberg dismissed her appeal of the Second Qualified Order.
However, Mr. Hatteberg refused to submit the agreed order to the state family law court.
In response to Mr. Hatteberg’s failure to submit the agreed order, Ms. Hatteberg filed this
suit in the United States District Court for the Western District of Texas, Midland-Odessa
Division. She sought a valuation and distribution of benefits from Red Adair’s employee profit
sharing plan. Thereafter, Mr. Hatteberg assented to submit the agreed order. On December 12,
1997, the state family law court entered a Domestic Relations Order (hereinafter “Domestic
Relations Order”) that valued and divided the Plan Assets in accordance with the mediated
settlement agreement.
On January 19, 1998, Red Adair’s employee profit sharing plan administrator (hereinafter
“Plan Administrator”) acknowledged the receipt of the Domestic Relations Order. On or about
March 6, 1998, the Plan Administrator determined that Ms. Hatteberg accrued $251,152.08 in
additional benefits since December 31, 1991. On or about March 11, 1998, the Plan
Administrator made an initial, partial distribution to Ms. Hatteberg of the $651,152.08 owed to
her, $251,152.08 in additional benefits and $400,000 from the settlement.
In this lawsuit, Ms. Hatteberg sued Mr. Hatteberg and the other defendants (collectively
3 referred to hereinafter as “Defendants”) for violations of the Employee Retirement Income
Security Act of 1974 (hereinafter “ERISA”), violations of the Racketeer Influenced and Corrupt
Organizations Act (hereinafter “RICO”), and negligent misrepresentation, legal malpractice and
abuse of process claims under state law. Ms. Hatteberg alleged that if the distribution would have
been made at the time of or shortly after the divorce the value of her portion of the Plan Assets,
on March 11, 1998, would have been at least $1,000,000 more than the $651,152.08 actually
distributed.
On September 25, 1998, Ms. Hatteberg and the Defendants filed separate motions for
summary judgement. After carefully reviewing the evidence before it, the federal district court,
on October 27, 1998, granted Defendants’ motion for summary judgment as to Ms. Hatteberg’s
RICO, negligent misrepresentation, legal malpractice, and abuse of process claims. The federal
district court found that Ms. Hatteberg failed to present evidence that established her RICO claim
and that ERISA preempted her negligent misrepresentation claim, declined to exercise
supplemental jurisdiction over her legal malpractice and abuse of process claims, and appointed a
special master to consider Ms. Hatteberg’s and Defendants’ motions for summary judgment as to
her ERISA claims. To facilitate an appeal of the dismissal, the federal district court severed the
non-ERISA claims from the ERISA claims. On December 29, 1999, the federal district court
entered a final judgment that dismissed with prejudice Ms. Hatteberg’s RICO and negligent
misrepresentation claims and dismissed without prejudice Ms. Hatteberg’s legal malpractice and
abuse of process claims. On January 26, 1999, Ms. Hatteberg filed her notice to appeal the
federal district court’s dismissal of her non-ERISA claims.
2. Discussion
4 Ms. Hatteberg argues that the federal district court erred when it granted summary
judgment in favor of the Defendants and dismissed with prejudice Ms. Hatteberg’s RICO and
negligent misrepresentation claims and dismissed without prejudice Ms. Hatteberg’s legal
malpractice and abuse of process claims. We hold that the federal district court did not err when
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UNITED STATES COURT OF APPEALS For the Fifth Circuit __________________________________________
No. 00-50074 SUMMARY CALENDAR _________________________________________
ANDREA D. HATTEBERG, Plaintiff-Appellant,
v.
ADAIR ENTERPRISES INCORPORATED; FULBRIGHT & JAWORSKI, LIMITED LEGAL PARTNERSHIP; STEWART W. GAGNON; JONATHAN GOLDHOR; DONALD O. JANSEN; JOY M. SOLOWAY; LISA D. HARBOUR; JERYL GOLUB; JOETTA JANCZAK; JAMES RICHARD HATTEBERG, Defendants-Appellees.
__________________________________________
On Appeal from the United States District Court for the Western District of Texas Midland-Odessa Division (M0-99-CV-164) __________________________________________ November 8, 2000
Before REYNALDO G. GARZA, DAVIS, and DENNIS, Circuit Judges.
PER CURIAM:1
Andrea D. Hatteberg appeals the federal district court’s dismissal with prejudice of her
Racketeer Influenced and Corrupt Organizations Act and negligent misrepresentation claims and
dismissal without prejudice of her legal malpractice and abuse of process claims. For the reasons
stated below, we affirm.
1 Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. 1. Factual and Procedural Background
This case arises out of a divorce between Andrea D. Hatteberg (hereinafter “Ms.
Hatteberg”) and James Richard Hatteberg (hereinafter “Mr. Hatteberg”) (collectively referred to
hereinafter as the “Hattebergs”). On October 1, 1992, a state family law court issued a divorce
decree and entered a Qualified Domestic Relations Order (hereinafter the “First Qualified Order”).
At the time of the divorce, Mr. Hatteberg worked for Red Adair Company, Inc. (hereinafter “Red
Adair”). In the First Qualified Order, the state family law court valued and divided the
Hattebergs’ benefits which had accrued in Red Adair’s employee profit sharing plan (hereinafter
the “Plan Assets”). The state family law court valued and divided the Plan Assets with a formula
used for a defined benefit plan.
Ms. Hatteberg appealed the First Qualified Order on the grounds that the state family law
court improperly valued and divided the Plan Assets. Ms. Hatteberg contended that the state
family law court should value and divide the Plan Assets with a formula used for a defined
contribution plan. The state appellate court agreed with Ms. Hatteberg, reversed the state family
law court, and remanded the case for a proper division of the Plan Assets. See Hatteberg v.
Hatteberg, 933 S.W.2d 522, 531 (Tex. App.–Houston [1st Dist.] 1994, no writ).
On remand, the state family law court entered a second Qualified Domestic Relations
Order (hereinafter the “Second Qualified Order”). In the Second Qualified Order, over Ms.
Hatteberg’s objections, the state family law court again valued and divided the Plan Assets with a
formula used for a defined benefit plan. Ms. Hatteberg appealed the Second Qualified Order on
the same grounds as the First Qualified Order.
On May 2, 1997, while her appeal of the Second Qualified Order was pending, the
2 Hattebergs reach a mediated settlement regarding the valuation and division of the Plan Assets.
The Hattebergs agreed that Ms. Hatteberg would receive $400,000 of the Plan Assets adjusted
for all earnings or losses and for other changes in value from December 31, 1991 until the date of
distribution to her. The Hattebergs further agreed that Ms. Hatteberg would dismiss her appeal of
the Second Qualified Order and that they would submit to the state family law court an agreed
order that valued and divided the Plan Assets in accordance with the mediated settlement
agreement. Accordingly, Ms. Hatteberg dismissed her appeal of the Second Qualified Order.
However, Mr. Hatteberg refused to submit the agreed order to the state family law court.
In response to Mr. Hatteberg’s failure to submit the agreed order, Ms. Hatteberg filed this
suit in the United States District Court for the Western District of Texas, Midland-Odessa
Division. She sought a valuation and distribution of benefits from Red Adair’s employee profit
sharing plan. Thereafter, Mr. Hatteberg assented to submit the agreed order. On December 12,
1997, the state family law court entered a Domestic Relations Order (hereinafter “Domestic
Relations Order”) that valued and divided the Plan Assets in accordance with the mediated
settlement agreement.
On January 19, 1998, Red Adair’s employee profit sharing plan administrator (hereinafter
“Plan Administrator”) acknowledged the receipt of the Domestic Relations Order. On or about
March 6, 1998, the Plan Administrator determined that Ms. Hatteberg accrued $251,152.08 in
additional benefits since December 31, 1991. On or about March 11, 1998, the Plan
Administrator made an initial, partial distribution to Ms. Hatteberg of the $651,152.08 owed to
her, $251,152.08 in additional benefits and $400,000 from the settlement.
In this lawsuit, Ms. Hatteberg sued Mr. Hatteberg and the other defendants (collectively
3 referred to hereinafter as “Defendants”) for violations of the Employee Retirement Income
Security Act of 1974 (hereinafter “ERISA”), violations of the Racketeer Influenced and Corrupt
Organizations Act (hereinafter “RICO”), and negligent misrepresentation, legal malpractice and
abuse of process claims under state law. Ms. Hatteberg alleged that if the distribution would have
been made at the time of or shortly after the divorce the value of her portion of the Plan Assets,
on March 11, 1998, would have been at least $1,000,000 more than the $651,152.08 actually
distributed.
On September 25, 1998, Ms. Hatteberg and the Defendants filed separate motions for
summary judgement. After carefully reviewing the evidence before it, the federal district court,
on October 27, 1998, granted Defendants’ motion for summary judgment as to Ms. Hatteberg’s
RICO, negligent misrepresentation, legal malpractice, and abuse of process claims. The federal
district court found that Ms. Hatteberg failed to present evidence that established her RICO claim
and that ERISA preempted her negligent misrepresentation claim, declined to exercise
supplemental jurisdiction over her legal malpractice and abuse of process claims, and appointed a
special master to consider Ms. Hatteberg’s and Defendants’ motions for summary judgment as to
her ERISA claims. To facilitate an appeal of the dismissal, the federal district court severed the
non-ERISA claims from the ERISA claims. On December 29, 1999, the federal district court
entered a final judgment that dismissed with prejudice Ms. Hatteberg’s RICO and negligent
misrepresentation claims and dismissed without prejudice Ms. Hatteberg’s legal malpractice and
abuse of process claims. On January 26, 1999, Ms. Hatteberg filed her notice to appeal the
federal district court’s dismissal of her non-ERISA claims.
2. Discussion
4 Ms. Hatteberg argues that the federal district court erred when it granted summary
judgment in favor of the Defendants and dismissed with prejudice Ms. Hatteberg’s RICO and
negligent misrepresentation claims and dismissed without prejudice Ms. Hatteberg’s legal
malpractice and abuse of process claims. We hold that the federal district court did not err when
it granted summary judgment in favor of Defendants and dismissed Ms. Hatteberg’s claims.
2.11 Ms. Hatteberg failed to come forward with evidence that establishes her RICO claim
Ms. Hatteberg argues that she was wrongly denied additional discovery before the federal
district court ruled on Defendants’ motion for summary judgment and dismissed her RICO claim.
However, Ms. Hatteberg did not file a FED. R. CIV. P. 56(f) affidavit that specifically set out the
reasons she could not oppose Defendants’ motion for summary judgment and how additional
discovery would enable her to do so before the federal district court ruled on Defendants’ motion
for summary judgment. Appropriately, the federal district court did not allow additional
discovery and ruled on Defendants’ motion for summary judgment.
Ms. Hatteberg further contends that the federal district court should have treated
Defendants’ motion for summary judgment as a FED. R. CIV. P. 12(b)(6) motion to dismiss
because she did not conduct discovery before the federal district court ruled on Defendants’
motion for summary judgment. Defendants’ motion for summary judgment could not have been
treated a FED. R. CIV. P. 12(b)(6) motion to dismiss because Defendants’ included evidence
outside the allegations in Ms. Hatteberg’s complaint. Appropriately, the federal district court did
not treat Defendant’s motion for summary judgment as a motion to dismiss.
Therefore, this is an appeal from a summary judgment. We review a federal district
5 court's grant of summary judgment de novo, applying the same standard of review as would the
district court. See Merritt-Campbell, Inc. v. RxP Products, Inc., 164 F.3d 957, 961 (5th Cir.
1999). Summary judgment is only proper when there is not a genuine issue as to any material fact
and the movant is entitled to judgment as a matter of law. See id. The movant bears the initial
burden, she must come forward with evidence that establishes the absence of a genuine issue as to
any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 106 S.Ct. 2548, 91 L. Ed. 2d
265 (1985); Willis v. Roche Biomedical Lab., Inc., 61 F.3d 313, 315 (5th Cir. 1995). If the
movant does so, the burden shifts to the non-movant. See Caldas & Sons, Inc., v. Willingham, 17
F.3d 123, 126 (5th Cir. 1994); Celotex Corp., 477 U.S. at 322-23. The non-movant, to survive
summary judgment, must come forward with evidence that establishes the existence of a genuine
issue as to a material fact. See Caldas & Sons, Inc., v. Willingham, 17 F.3d 123, 126 (5th Cir.
1994); Celotex Corp., 477 U.S. at 322-23. See id.
In order to establish a RICO claim, a plaintiff must show that a person is engaged in a
pattern of racketeering activity connected to the acquisition, establishment, conduct, or control of
an enterprise. See Word of Faith World Outreach Center Church, Inc. v. Sawyer, 90 F.3d 118,
122 (5th Cir. 1996). We agree with the federal district court that Ms. Hatteberg failed to plead or
establish the essential elements of her RICO claim and that the Defendants were entitled to
summary judgment as a matter of law unless the Ms. Hatteberg came forward with summary
judgment evidence, other than her complaint, that establishes her RICO claim. She did not.
Accordingly, the Defendants are entitled to summary judgment on Ms. Hatteberg’s RICO claim.
See Celotex Corp., 477 U.S. at 322.
2.12 The federal district court correctly found that ERISA preempted Ms.
6 Hatteberg’s negligent misrepresentation claim and did not abuse its discretion when it declined to exercise supplemental jurisdiction over Ms. Hatteberg’s legal malpractice and abuse of process claims
We review a federal district court's preemption analysis under ERISA de novo, applying
the same standard of review as would the district court. See Nickel v. Estate of Estes, 122 F.3d
294, 297 (5th Cir. 1997). We review a federal district court’s decision to decline to exercise
supplemental jurisdiction for an abuse of discretion. See Sibley v. Lemaire, 184 F.3d 481, 490
(5th Cir. 1999). After reviewing the parties’ briefs, the record, and the applicable authority, we
agree with the federal district court that ERISA preempted Ms. Hatteberg’s negligent
misrepresentation claim, and find that the federal district court did not abuse its discretion when it
declined to exercise supplemental jurisdiction over Ms. Hatteberg’s legal malpractice and abuse of
process claims.
3. Conclusion
Based on the foregoing, we AFFIRM the federal district court’s grant of summary
judgment in favor of the Defendants and dismissal Ms. Hatteberg’s claims.