Suarez v. U.S. Bank, NA, As Trustee

Western District of Texas, txwd-5:2019-cv-00704

ORDER ADOPTING REPORT AND RECOMMENDATIONS for [7] Motion to Dismiss filed by U.S. Bank, NA, as Trustee, is GRANTED in PART as to plaintiffs claim of negligence and for violation of the Texas Property Code and DENIED in PART as to plaintiffs claim for breach of contract. IT IS FURTHER ORDERED that, in light of plaintiffs failure to respond to the show cause order and for the reasons set forth in the Report and Recommendation, plaintiffs breach of contract claim is DISMISSED for failure to prosecute and/or follow a Court order pursuant to Rule 41 of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that, as discussed in the Report and Recommendation, because all of plaintiffs claims have been dismissed, any claim by plaintiff for injunctive relief is also DISMISSED given that this is an equitable remedy for a viable cause of action, not a cause of action in itself. IT IS FINALLY ORDERED that this case remains referred to the Magistrate Judge for furtherpretrial proceedings on defendants counterclaim against plaintiff, which remains pending for disposition.Signed by Judge Fred Biery.

Interested in this case?

Current View

Full Text

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION FELIX ROBERT SUAREZ,)) Plaintiff,)) V.) CIVIL ACTION NO. SA-19-CA-0704-FB) U.S. BANK, NA, as Trustee,)) Defendant.) ORDER ACCEPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND FURTHER ORDERS OF THE COURT Before the Court is the Report and Recommendation and Show Cause Order of the United States Magistrate Judge (docket no. 10) filed in the above-captioned cause on July 31, 2019. To date, no objections to the Report and Recommendation have been received1 and no response to the show cause order has been filed.2 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). 2 Plaintiff's response to the show cause order was due to be filed within fourteen days of July 31, 2019. (Docket no. 10 at page 7). Pursuant to this Court's Local Rule CV-7(e), if there is no response filed within the time limit prescribed, the Court may grant the motion as unopposed. IT IS THEREFORE ORDERED that the Report and Recommendation of the United States Magistrate Judge (docket no. 23) is ACCEPTED pursuant to 28 U.S.C. § 636(b)(1) such that Defendant's Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) and Brief in Support (docket no. 7) is GRANTED in PART as to plaintiff's claim of negligence and for violation of the Texas Property Code and DENIED in PART as to plaintiff's claim for breach of contract. IT IS FURTHER ORDERED that, in light of plaintiff's failure to respond to the show cause order and for the reasons set forth in the Report and Recommendation, plaintiff's breach of contract claim is DISMISSED for failure to prosecute and/or follow a Court order pursuant to Rule 41 of the Federal Rules of Civil Procedure. IT IS FURTHER ORDERED that, as discussed in the Report and Recommendation, because all of plaintiff's claims have been dismissed, any claim by plaintiff for injunctive relief is also DISMISSED given that this is an equitable remedy for a viable cause of action, not a cause of action in itself. IT IS FINALLY ORDERED that this case remains referred to the Magistrate Judge for further pretrial proceedings on defendant's counterclaim against plaintiff, which remains pending for disposition. It is so ORDERED. SIGNED this 16th day of August, 2019. _________________________________________________ FRED BIERY UNITED STATES DISTRICT JUDGE 2