Bonin v. Sabine River Authority of Texas

Filing 58

ORDER adopting #54 Report and Recommendation and granting in part/denying in part #38 Amended Motion to Dismiss. Pltfs' negligence and Texas Water Code claims against the Entergy defendants are dismissed. Pltfs have seven (7) days to amend their complaint. Signed by District Judge Thad Heartfield on 3/7/18. (tkd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
PERRY BONIN, et al.
v.
SABINE RIVER AUTHORITY OF
TEXAS, et al.

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NO. 1:17-cv-134

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 pre-trial management. Doc. No. 42. Pending before the court is the “Amended Motion
to Dismiss” of Defendants Cleco Power LLC, Entergy Texas, Inc., and Entergy Louisiana, LLC
(Entergy Defendants). Doc. No. 38. The court has received and considered the report of the
magistrate judge (Doc. No. 54), filed on February 8, 2018, which recommended granting the
motion in part and denying it in part. Only the Entergy Defendants filed objections. Doc. No. 56.
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)(l)(c); 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 1415 (5th Cir. 1996) (en banc).
The court has conducted a de novo review of the magistrate judge’s report and
recommendation and has carefully considered the objections. The court finds that the magistrate
judge’s conclusions are correct, but will briefly address the objections here.

First, the Entergy Defendants argue the Plaintiffs operated in bad faith by misrepresenting
the true source of their claims (violations of the Federal Power Act or its licenses/regulations) and
an “eleventh-hour reversal of position” in the Plaintiffs’ responses to the pending motion to
dismiss. Doc. No. 56, at 2. Because of this alleged bad faith, the Entergy Defendants object that
leave to amend the complaint should be denied. Id. However, the cases cited by the Entergy
Defendants do not require this court deny leave to amend, nor do they establish that the Plaintiffs
have effectively made a relevant judicial admission or operated in bad faith in the instant case. For
the reasons outlined in the report and recommendation (Doc. No. 54, at 9−10), the undersigned
determines that leave to amend is appropriate.
In the event the Plaintiffs decide not to amend their complaint after being granted leave
from the court, the Entergy Defendants object to avoid waiving their arguments that all of the
Plaintiffs’ claims should be dismissed under Simmons (Doc. No. 56, at 3) and/or the alternative
arguments the magistrate judge did not address in the report and recommendation. Id. at 3–4.
However, the Entergy Defendants have not waived such arguments. The Entergy Defendants can
seek leave to file a new dispositive motion, or wait until another scheduling order is entered giving
both parties another opportunity to submit dispositive motions.
It is, therefore, ORDERED that the Entergy Defendants’ objections (Doc. No. 56) are
OVERRULED, and the magistrate judge’s report and recommendation (Doc. No. 54) is
ADOPTED. The Entergy Defendants’ “Amended Motion to Dismiss” (Doc. No. 38) should be
GRANTED in part and DENIED in part. The Plaintiffs’ negligence and Texas Water Code
claims against the Entergy Defendants are DISMISSED.

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It is further ORDERED that the Plaintiffs shall have seven (7) days to amend their
complaint.
SIGNED this the 7 day of March, 2018.

____________________________
Thad Heartfield
United States District Judge

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