Frankie D. Albert v. United States

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

FRANKIE D. ALBERT, AS PARENTS AND § NEXT FRIEND OF JANE DOE, A MINOR; § AND PHYLIS ALBERT, AS PARENTS AND § SA-17-CV-00703-JKP NEXT FRIEND OF JANE DOE, A MINOR; § Plaintiffs § § -vs- § § UNITED STATES DEPARTMENT OF THE ARMY, WOUNDED WARRIOR PROJECT, INC., Defendants

ORDER ACCEPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Before the Court is Magistrate Judge Elizabeth Chestney’s Report and Recommendation filed on September 10, 2019, and Defendant Wounded Warrior Project’s (WWP) objections to the report. (Doc. Nos. 80, 86). Magistrate Judge Chestney recommends Plaintiffs’ Reurged Motion for Leave to File Third Amended Complaint (Doc. No. 57) be dismissed without prejudice and WWP’s Motion for Summary Judgment (Doc. No. 73) be denied. Plaintiffs’ Motion for Leave to File Third Amended Complaint No party filed objection to Magistrate Judge Chestney’s recommendation regarding Plaintiffs’ Reurged Motion for Leave to File Third Amended Complaint. If no party objects to a Magistrate Judge’s Report and Recommendation, the Court need only review the Magistrate Judge’s report to determine whether the findings and recommendations are clearly erroneous or contrary to law. Johnson v. Sw. Research Inst., 210 F. Supp. 3d 863, 864 (W.D. Tex. 2016) (citing U.S. v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989)). The Court reviewed the Report and Recommendation pertaining to Plaintiffs’ Reurged Motion for Leave to Amend and finds it to be neither clearly erroneous nor contrary to law. Accordingly, the Court ACCEPTS the Magistrate Judge’s recommendation that the

motion be dismissed without prejudice to being renewed at trial on an evidentiary record.

Defendant Wounded Warrior Project’s Motion for Summary Judgment WWP filed objections to Magistrate Judge Chestney’s Report and Recommendation as it pertained to WWP’s Motion for Summary Judgment. This Court shall make a de novo review of those portions of any Report and Recommendation to which any party objects. 28 U.S.C. § 636(b)(1)(C); see also Longmire v. Guste, 921 F.2d 620, 623 (5th Cir.1991). In conducting a de novo review, the Court will examine the record pertinent to the objections and must conduct its own analysis of the applicable facts

and make an independent assessment of the law. This Court is not required to give any deference to the magistrate judge’s findings. See United States v. Raddatz, 447 U.S. 667, 689 (1980) (Stewart, J., dissenting) (“The phrase ‘de novo determination’ has an accepted meaning in the law. It means an independent determination of a controversy that accords no deference to any prior resolution of the same controversy.”); Shiimi v. Asherton Indep. Sch. Dist., 983 F.2d 233, 1993 WL 4732, at *3 n. 18 (5th Cir. Jan. 8, 1993). The Court will not conduct a de novo review pertaining to any objections that are frivolous, conclusive or general in nature. See Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). This Court conducted a de novo review of WWP’s objections to the Report and Recommendation and carefully reviewed the record. At this time, a genuine issue of material fact exists which precludes summary judgment as to Plaintiffs’ negligence cause of action against WWP. Accordingly, the Court ACCEPTS the Magistrate Judge’s recommendation that WWP’s Motion for Summary Judgment be DENIED. This Court ACCEPTS and ADOPTS Magistrate Judge Chestney’s Report and Recommendation in its entirety. It is ORDERED Plaintiffs’ Reurged Motion for Leave to File Third Amended Complaint (Doc. No. 57) be DISMISSED WITHOUT PREJUDICE, and Defendant’s Motion for Summary Judgment (Doc. No. 73) be DENIED. SIGNED this 7th day of October, 2019.

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