Drake v. Penske Truck Leasing Co., L.P. et al

Filing 39

ORDER ADOPTING REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE for 5 Motion to Dismiss 22 Motion to Dismiss, and 21 Motion to Dismiss. Signed by Judge Richard A. Schell on 3/27/2013. (pad, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
ERIC DRAKE
Plaintiff,
VS.
PENSKE TRUCK LEASING CO., LP,
FREIGHLINER, LLC., DAIMLER TRUCKS
NORTH AMERICA, LLC, AND
GALLAGHER BASSETT SERVICES, INC.
Defendants.

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Case No. 4:12CV264

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action, this
matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C.
§ 636. On February 21, 2013, the report of the Magistrate Judge was entered containing proposed
findings of fact and recommendations that Defendants Daimler Trucks North America, LLC’s
Motion to Dismiss (Dkt. 5) be GRANTED as to Plaintiff’s claims of strict product liability,
negligence, DTPA, and intentional infliction of emotional distress against Defendant DTNA and
DENIED as to Plaintiff’s claims of breach of implied warranties against Defendant DTNA, that
Defendant Penske Truck Leasing, Co., LP’s Rule 12(b)(6) Motion to Dismiss (Dkt. 22) be
GRANTED as to Plaintiff’s claims of strict products liability, DTPA, violations of the Texas

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Insurance Code, and intentional infliction of emotional distress against Defendant Penske and
DENIED as to Plaintiff’s claims of breach of implied warranties against Defendant Penske, that
Defendant Gallagher Bassett Services, Inc.’s Rule 12(b)(6) Motion to Dismiss (Dkt. 21) be
GRANTED as to all of Plaintiff’s claims against Defendant Gallagher, and that Plaintiff’s negligence
claims against Penske and breach of implied warranties claims against Defendants Penske and
DTNA remain at this time.
Having received the report of the United States Magistrate Judge, and no objections thereto
having been timely filed, this court is of the opinion that the findings and conclusions of the
Magistrate Judge are correct and adopts the Magistrate Judge’s report as the findings and conclusions
of the court. Therefore, Defendants Daimler Trucks North America, LLC’s Motion to Dismiss (Dkt.
5) is GRANTED as to Plaintiff’s claims of strict product liability, negligence, DTPA, and intentional
infliction of emotional distress against Defendant DTNA and DENIED as to Plaintiff’s claims of
breach of implied warranties against Defendant DTNA. Defendant Penske Truck Leasing, Co., LP’s
Rule 12(b)(6) Motion to Dismiss (Dkt. 22) is GRANTED as to Plaintiff’s claims of strict products
liability, DTPA, violations of the Texas Insurance Code, and intentional infliction of emotional
distress against Defendant Penske and DENIED as to Plaintiff’s claims of breach of implied
warranties against Defendant Penske. Defendant Gallagher Bassett Services, Inc.’s Rule 12(b)(6)
Motion to Dismiss (Dkt. 21) is GRANTED as to all of Plaintiff’s claims against Defendant
Gallagher.

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Plaintiff’s negligence claims against Penske and breach of implied warranties claims against
Defendants Penske and DTNA remain at this time.
IT IS SO ORDERED.
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SIGNED this the 28th day of March, 2013.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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