Derrick v. Union Pacific Railroad Company et al

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 9 Report and Recommendations (Motion(s) 3 terminated). Signed by District Judge Robert W. Schroeder, III on 7/3/2024. (CH)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION NAKIA L. DERRICK, § § § Plaintiff, § § v. § § UNION PACIFIC RAILROAD COMPANY, § ET. AL., § § Defendants. CIVIL ACTION NO. 2:23-CV-498-RWS-RSP ORDER Before the Court is Defendant Union Pacific Railroad’s Motion to Dismiss Based on Statute of Limitations (Docket No. 3) and the Magistrate Judge’s 1 order requiring Plaintiff to complete service on Defendant Power Secure, Inc. by May 15, 2024 (Docket No. 7). The present action, which was removed from state court, was filed on September 19, 2023. Docket No. 1. The report found that Plaintiff’s negligence claim arises from an accident that occurred on June 29, 2019 but the statute of limitations for negligence is 2 years. See Docket No. 9 at 1; see also, e.g., Docket No. 1-1 ¶¶ 3.1, 4.3. Further, Plaintiff failed to comply with an order requiring the timely completion of service on Defendant Power Secure, Inc. Id. Based on these facts, the Magistrate Judge issued a report recommending that Union Pacific Railroad’s motion to dismiss be granted and further recommending dismissal of the Defendant Power Secure for failure to prosecute. Docket No. 9. Because no objections have been received, Plaintiff is barred from de novo review by the District Judge of the Magistrate Judge’s proposed findings, conclusions and recommendations and, 1 The case was referred to United States Magistrate Judge Roy S. Payne. except upon grounds of plain error, from appellate review of the unobjected-to factual findings and legal conclusions accepted and adopted by the District Court. See Duarte v. City of Lewisville, Texas, 858 F.3d 348, 352 (5th Cir. 2017); Arriaga v. Laxminarayan, Case No. 4:21-CV-00203RAS, 2021 WL 3287683, at *1 (E.D. Tex. July 31, 2021). The Court has reviewed the pleadings in this case and the Report of the Magistrate Judge. Upon such review, the Court has determined the report of the Magistrate Judge is correct. See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918 (1989) (where no objections to a Magistrate Judge’s report are filed, the standard of review is “clearly erroneous, abuse of discretion and contrary to law.”). Accordingly, it is ORDERED that the report of the Magistrate Judge (Docket No. 9) is ADOPTED as the . opinion of the District Court. It is further ORDERED that Defendant Union Pacific Railroad’s Motion to Dismiss Based on Statute of Limitations (Docket No. 3) is GRANTED and Plaintiff’s case against Defendant Union Pacific Railroad is DISMISSED WITH PREJUDICE. It is further ORDERED that Plaintiff’s case against Defendant Power Secure is DISMISSED WITHOUT PREJUDICE for failure to prosecute pursuant to Federal Rule of Civil Procedure 4(m). So ORDERED and SIGNED this 3rd day of July, 2024. ____________________________________ ROBERT W. SCHROEDER III UNITED STATES DISTRICT JUDGE Page 2 of 2

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