Alvarez v. Emergency Site Protection, LLC et al

Western District of Texas, txwd-5:2018-cv-01298

ORDER ADOPTING REPORT AND RECOMMENDATIONS for [48] Report and Recommendations, Granted in Part/denied in Part [30] MOTION to Dismiss and Compel Arbitration filed by GRYPHON HOLDCO, LLC.Plaintiffs are COMPELLED TO ARBITRATION ON AN INDIVIDUALBASIS and their claims are STAYED pending completion of the arbitrations, it is further Order that this case ADMINISTRATIVELY CLOSED pending completion of the arbitrations. Signed by Judge Fred Biery.

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION JOSUE ALVAREZ, Individually and on) Behalf of all Others Similarly Situated;) GENNISE GARCIA; HERIBERTO) LOPEZ, JR.; DILLON SILVA; STEVEN) R. SILVA; FELIPE PEREZ; and) FRANCISCO PEREZ,)) Plaintiffs,)) V.) CIVIL ACTION NO. SA-18-CA-1298-FB) GRYPHON HOLDCO, LLC;)) Defendant.) ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Before the Court is the Report and Recommendation of United States Magistrate Judge (docket no. 48) concerning Defendant Gryphon Holdco, LLC's Motion to Dismiss and Compel Arbitration (docket no. 30). To date, no objections to the Report and Recommendation have been received.1 Because no party has objected to the Magistrate Judge's Report and Recommendation, the Court need not conduct a de novo review. See 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made."). The Court has reviewed the Report and Recommendation and finds its reasoning to be neither clearly erroneous nor contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918 (1989). 1 Any party who desires to object to a Magistrate's findings and recommendations must serve and file his, her or its written objections within fourteen days after being served with a copy of the findings and recommendation. 28 U.S.C. § 635(b)(1). If service upon a party is made by mailing a copy to the party's last known address, "service is complete upon mailing." FED. R. CIV. P. 5(b)(2)(C). If service is by electronic means, "service is complete upon transmission." Id. at (E). IT IS THEREFORE ORDERED that the Report and Recommendation of United States Magistrate Judge (docket no. 48) is ACCEPTED pursuant to 28 U.S.C. § 636(b)(1) such that: (1) Defendant Gryphon Holdco, LLC's Motion to Dismiss and Compel Arbitration (docket no. 30) is GRANTED in PART. (2) The following unconscionable provision is SEVERED from the Site Agreements: "[I]n no event is the arbitrator authorized or empowered to award punitive damages or damages in excess of actual direct damages," § 19(b). (3) Plaintiffs are COMPELLED TO ARBITRATION ON AN INDIVIDUAL BASIS and their claims are STAYED pending completion of the arbitrations. (4) This case is ADMINISTRATIVELY CLOSED pending completion of the arbitrations. It is so ORDERED. SIGNED this 9th day of October, 2019. _________________________________________________ FRED BIERY UNITED STATES DISTRICT JUDGE 2