ORLANDA L. GARCIA, United States District Judge.
Before the Court are the memorandum and recommendation of United States Magistrate Judge Nancy Stein Nowak (docket no. 52), and the objections of U-Fuel (docket no. 55).
The facts are fully set out in the magistrate judge's memorandum and recommendation. The evidence shows that as early as March 1996, We-Mac became a licensee of U-Fuel, permitting it to manufacture non-insulated ASTs using U-Fuel's trade secrets. pocket no. 55, ex. R). On May 17, 1996, We-Mac received a copy of U-Fuel's production manual containing its proprietary and confidential technology used to manufacture its non-insulated ASTs. Three days later, SwRI received a copy of the manual pursuant to its October 11, 1995 contract with U-Fuel for testing, listing, and labeling U-Fuel's ASTs. SwRI began testing U-Fuel's ASTs in April 1999 under its newly developed 97-04 protocol. In May 1999, SwRI tested a tank built by We-Mac for U-Fuel's competitor STI under the 97-04 protocol. U-Fuel contends that We-Mac used its trade secrets in constructing the AST, thereby breaching the non-disclosure provisions of its licensing agreement with U-Fuel. In the present lawsuit, U-Fuel contends that SwRI breached its testing, listing, and labeling contract with U-Fuel by disclosing U-Fuel's trade secrets to We-Mac to allow We-Mac to build a tank that passed the 97-04 test. The magistrate judge recommended that SwRI's motion for summary judgment be granted. The Court will accept that recommendation.
The evidence does not show that SwRI disclosed any of U-Fuel's trade secrets to We-Mac to allow it to manufacture the tank, that SwRI conspired with, worked with, or aided and abetted We-Mac in the manufacture of the tank, or that We-Mac could not have manufactured the tank on its own by using U-Fuel's trade secrets that it already possessed witout any help from SwRI. SwRI tests ASTs; it does not manufacture them. Nor does it compete with U-Fuel.
Even if we assume, as U-Fuel argues, that U-Fuel's technology was unique and that We-Mac used it to build its tank, that is not evidence that SwRI disclosed U-Fuel's trade secrets to We-Mac. As the magistrate judge pointed out numerous times, U-Fuel itself had provided its trade secrets concerning the manufacture of non-insulated ASTs to We-Mac prior to the time We-Mac built its tank. MR at 3, 9-10, 12, 22-23, 26. The only evidence U-Fuel cites (see U-Fuel's objections, docket no. 55 at 14) that SwRI disclosed its proprietary information is a memo dated March 18, 1999 from Lorri Grainawi of STI to Gladys Finley-Miller of SwRI. (Docket no. 41, ex. L.) In the memo, Grainawi states, "I'd like to know if I can expect the information on the weld joints today." As the magistrate judge pointed out, this is not evidence that SwRI actually disclosed U-Fuel's proprietary information to STI, especially since the context of the memo relates to STI's concern with UL 142 and UL 2085 requirements, not the 97-04 test. MR at 19-22. Further, U-Fuel's argument rests on the presumption that no manufacturer could build a noninsulated AST that could pass the 97-04 tests without its proprietary technology. The evidence, however, discloses that BMT, independently of U-Fuel's technology, made a non-insulated AST for Trusco that was certified by SwRI. (Docket no. 55, ex. 5, Scott depo. at 11, 27; docket no. 41, ex. D, Finley-Miller depo. vol. I at 17-18, 97-99.) Although the Trusco tank initially suffered two leaks, which SwRI determined were due to poor welding and quality control rater than to a design fault, when the welds were repaired and the tank was retested, SwRI certified it under 97-04. (Docket no. 55, ex. 5, Scott depo. at 27; docket no. 41, ex. D, Finley-Miller depo. vol. II at 112; docket no. 41, ex. E.)
U-Fuel also complains that the magistrate judge improperly drew all inferences in favor of SwRI rather tan in favor of U-Fuel. The court has reviewed U-Fuel's objections and finds that even if the magistrate judge made improper inferences, it would not change the result of her recommendation, or the fact that U-Fuel has failed to produce credible summary judgment evidence to raise a fact issue that SwRI had breached its non-disclosure agreement. The court must view the evidence presented on the motion in the light most favorable to U-Fuel, and all reasonable and justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, there must be evidence in the record giving rise to reasonable inferences that support the U-Fuel's position. Inferences are not reasonable if they rest on nothing more than the thin air of speculation. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (nonmovant cannot discharge his burden with some metaphysical doubt as to the material facts, by conclusory allegations, unsubstantiated assertions, or by only a scintilla of evidence); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994) (summary judgment inappropriate where the nonmovant rests merely upon conclusory allegations, improbable inferences, and unsupported speculation).
As for the tortious interference claim, the Court agrees with the magistrate judge that there is no evidence that SwRI induced or persuaded We-Mac to breach its license with U-Fuel. Even assuming that SwRI was aware of the non-disclosure provisions of We-Mac's license agreement, the mere fact that SwRI tested We-Mac's AST is not evidence that it induced WeMac to breach that agreement.
A necessary element of the plaintiffs cause of action is a showing that the defendant
took an active part in persuading a party to a contract to breach it. Merely entering into a contract with a party with the knowledge of that party's contractual obligations to someone else is not the same as inducing a breach. It is necessary that there be some act of interference or of persuading a party to breach, for example by offering better terms or other incentives, for tort liability to arise.
Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768 at 803 (Tex.App. — Houston [1st Dist.] 1987, writ ref'd n.r.e.) (emphasis added, citations omitted).
Finally, U-Fuel argues that a fact issue exists concerning its civil conspiracy claim because SwRI "aided and abetted" We-Mac in breaching its license agreement with U-Fuel. In Texas, civil conspiracy requires specific intent. Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex. 1995). Proof that a defendant "intend[ed] to engage in the conduct that resulted in the injury" is insufficient. Id. Instead, "[for a civil conspiracy to arise, the parties must be aware of the harm or wrongful conduct at the inception of the combination or agreement." Id. "One without knowledge of the object and purpose of a conspiracy cannot be a co-conspirator; he cannot agree, either expressly or tacitly, to the commission of a wrong which he knows not of." Schlumberger Well Surveying Corp. v. Nortex Oil and Gas Co., 435 S.W.2d 854, 856 (Tex. 1968). "And, of course, one without knowledge of a conspiratorial plan or scheme to injure another by the commission of a particular wrong cannot share the intent to injure such other." Id. at 857. The summary judgment evidence is insufficient to raise a fact issue that SwRI possessed the requisite intent to participate in a conspiracy with We-Mac to injure U-Fuel.
The Court has conducted an independent review of the record, a de novo review of the matters raised by the objections, and has reviewed the applicable law. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The Court concludes that U-Fuel's objections lack merit, and they are OVERRULED. The Court further concludes that the memorandum and recommendation should be and is ACCEPTED. It is further ORDERED that SwRI's motion for summary judgment (docket no. 38)is GRANTED in its entirety, and U-Fuel's claims against SwRI are DISMISSED. All pending motions, if any, are OVERRULED AS MOOT.