Morales v. Singh

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS PECOS DIVISION

FERNANDO JOSE RAMIREZ § MORALES, § § § v. § P:23-CV-00043-DC § MANIDER SINGH, and CHAHAL § ONTIME, INC., § §

ORDER The Court now considers the report and recommendation of United States Magistrate Judge David Fannin1 concerning Plaintiff Fernando Jose Ramirez Morales’ motion for declaratory judgment.2 In his report and recommendation, Judge Fannin recommends that the Court grant in part and deny in part. Plaintiff Morales timely filed objections to the report and recommendation.3 A party may serve and file specific, written objections to a magistrate judge’s findings and recommendations within fourteen days after being served with a copy of the report and recommendation and, in doing so, secure de novo review by the district court.4 Because Morales timely objected to a portion of the report and recommendation, the Court reviews that portion of the report and recommendation de novo. Having done so, the Court overrules Morales’ objections and adopts the report and recommendation as its own order.

1 ECF No. 40 2 ECF No. 16. 3 ECF No. 42. 4 28 U.S.C. § 636(b)(1)(C). From a technical standpoint, Morales does not object to Judge Fannin’s order in any part. He instead offers new evidence, in the form of an affidavit, to support a damages award for past medical expenses in the amount of $128,690.21.5 While a district court may at its

discretion view new evidence raised for the first time in an objection to a magistrate judge’s report and recommendation,6 it would appear that Morales misread Judge Fannin’s views on Section 18.001 of the Texas Civil Practice and Remedies Code.7 In his report and recommendation, Judge Fannin touched on—but did not weigh in on—Section 18.001 affidavits and their applicability in federal court, stating the following in a footnote This Court has held that Section 18.001 does not apply in federal court and only expert testimony will satisfy a plaintiff’s burden. See Ruelas v. W. Truck & Trailer Maint. Inc., No. 18-CV-2, 2019 WL 13150020, at *4 (W.D. Tex. June 6, 2019); see also Cavazos [v. A & T Bros. et al, No. 23-CV-110,] 2024 WL 3891402, at *11 [(S.D. Tex. July 12, 2024)]. Since Plaintiff did not provide an affidavit satisfying Section 18.001, the Court does not reach the issue of applicability.8

This Court agrees with Judge Fannin’s assessment of the state of Section 18.001 case law. Section 18.001 is a purely procedural function of Texas law and “directly conflicts with the Federal Rules of Evidence 801 and 802, which prevents the application of § 180.001 in federal court.”9 Accordingly, the Court ORDERS that the report and recommendation of

5 See generally ECF No. 42. 6 See Freeman v. Cnty. of Bexar, 142 F.3d 848, 853 (5th Cir. 1998). 7 See id. at 5; ECF No. 40 at 20. 8 ECF No. 40 at 20 n.9. 9 Rivera v. Autotransportes Fronterizos, M.G., S.A. De C.V., No. 7:21-CV-00428, 2022 WL 3069290, at *3 (S.D. Tex. Aug. 3, 2022); Ruelas, 2019 WL 13150020, at *4 (W.D. Tex. Sept. 6, 2019) (offering an overview of Section 18.001 case law). United States Magistrate Judge David Fannin!? is ADOPTED. Morales’ motion is GRANTED IN PART and DENIED IN PART.!! Plaintiff's motion is GRANTED as it relates to:

e Plaintiffs negligence and gross negligence claims against Defendant Singh; e Plaintiffs vicarious liability, negligent entrustment, and gross negligence claims against Defendant Chahal Ontime. Plaintiffs motion is DENIED as it relates to:

e Plaintiffs negligence per se claim against Defendant Singh; and

e Plaintiffs claims for negligent hiring, negligent qualifications, negligent vehicle monitoring, negligent retention, negligent management, negligent contracting, negligent maintenance, and negligent supervision against Defendant Chahal Ontime. It is so ORDERED. SIGNED this 14th day of January, 2025.

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UNITED STATES DISTRICT JUDGE

10 ECF No. 40. | ECF No. 42.