Sam Rayburn Municipal Power Agency v. Gillis et al

Filing 68

ORDER adopting 61 Report and Recommendation and denying defendants' objections. Signed by Judge Ron Clark on 1/30/15. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
SAM RAYBURN MUNICIPAL POWER
AGENCY
v.
RAY J. GILLIS and GILLIS,
BORCHARDT & BARTHEL L.L.P.

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NO. 1:14-CV-202

ORDER ADOPTING REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
The court referred this case to the Honorable Zack Hawthorn, United States Magistrate
Judge, for pretrial proceedings. (Doc. No. 11.) Pending before the court is the “Objection to the
Magistrate’s Report and Recommendation” (Doc. No. 65) filed by Defendants Gillis, Borchardt
& Barthel L.L.P., Ralph J. Gillis, and Obain Associates Ltd. (collectively, “Gillis Defendants”).
The court has received and considered the report and recommendation of the magistrate judge
(Doc. No. 61), who recommends denying the “Motion to Vacate Joinder of the Trust” (Doc. No.
57) filed by Gillis, Borchardt & Barthel, L.LP. and Ralph J. Gillis, granting in part the “Motion
to Dismiss” (Doc. No. 52) filed by the Jasper/VPPA Settlement Trust, and dismissing this case
for lack of subject matter jurisdiction. The Gillis Defendants filed timely objections to the report
and recommendation (Doc. No. 65), and the Plaintiff responded. (Doc. No. 66.)
A party who files timely written objections to a magistrate judge’s report and
recommendation is entitled to a de novo determination of those findings or recommendations to
which the party specifically objects. 28 U.S.C. § 636(b)(1)(c) (Supp. IV 2011); FED. R. CIV. P.
72(b)(2)–(3). “Parties filing objections must specifically identify those findings [to which they
object]. Frivolous, conclusive or general objections need not be considered by the district court.”

Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc), overruled on other
grounds by Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1412 (5th Cir. 1996) (en banc).
The Gillis Defendants do not object to any particular finding of the magistrate judge’s
report. Rather, they raise an entirely new argument—that dismissal is no longer warranted
because their affirmative defense, which was filed after the magistrate judge issued his report,
creates federal question jurisdiction. The general rule, however, is that an affirmative defense
cannot create federal question jurisdiction, and the court is not persuaded that the narrow
exception of complete preemption is applicable. Therefore, the court finds this argument without
merit.
After conducting a de novo review of the magistrate judge’s report and recommendation,
the Gillis Defendants’ objections, and the Plaintiff’s response, the court finds that the magistrate
judge’s findings and conclusions are correct. See FED. R. CIV. P. 72(b)(3). Accordingly, the
Gillis Defendants’ objections are overruled and the report and recommendation will be adopted.
It is therefore ORDERED that the magistrate judge’s report and recommendation (Doc.
No.61) is ADOPTED; and the Gillis Defendants’ “Objection to the Magistrate’s Report and
Recommendation” (Doc. No. 65) is DENIED.
So ORDERED and SIGNED this 30 day of January, 2015.

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Ron Clark, United States District Judge

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