Despot v. Smith

Filing 85

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 80 Report and Recommendation. It is, therefore, ORDERED that Defendants Scott Smith, Roger Smith, Brian Mitchell, Domenico Bertini, Robert Falvo, James Gentile , Mark McAndrew, American Income Life Insurance Company, Torchmark Corporation, Family Heritage Life Insurance Company of America, and Liberty National Life Insurance Company's Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Fed eral Rule of Civil Procedure 12(b)(6) (Dkt. #21) is GRANTED, and Plaintiff's claims against the Torchmark Defendants are DISMISSED with prejudice for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). All relief not previously granted is DENIED. The Clerk is directed to CLOSE this civil action. Signed by Judge Amos L. Mazzant, III on 12/14/2015. (kls, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

DAVID DESPOT
v.
SCOTT SMITH, ET AL.

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CASE NO. 4:14-CV-490
(Judge Mazzant/Judge Nowak)

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF 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 Magistrate Judge pursuant to 28 U.S.C. § 636.
On November 2, 2015, the report of the Magistrate Judge (Dkt. #80) was entered containing
proposed findings of fact and recommendations that Defendants Scott Smith, Roger Smith, Brian
Mitchell, Domenico Bertini, Robert Falvo, James Gentile, Mark McAndrew (collectively the
“Individual Defendants”), American Income Life Insurance Company (“AIL”), Torchmark
Corporation (“Torchmark”), Family Heritage Life Insurance Company of America (“Family
Heritage”), and Liberty National Life Insurance Company’s (“Liberty National” and collectively
the “Torchmark Defendants”) Motion to Dismiss Plaintiff’s Amended Complaint Pursuant to
Federal Rule of Civil Procedure 12(b)(6) (Dkt. #21) be granted.

The Magistrate Judge

recommended Plaintiff’s claims be dismissed with prejudice for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6) (Dkt. #80).

Having received the report of the

Magistrate Judge (Dkt. #80), having considered each of Plaintiff’s timely filed objections
(Dkt. #82), and having conducted a de novo review, the Court is of the opinion that the findings
and conclusions of the Magistrate Judge are correct, and the Court hereby adopts the Magistrate
Judge’s report (Dkt. #80) as the findings and conclusions of the Court.

BACKGROUND

The Magistrate Judge previously set forth the procedural and factual history of this

litigation in detail, and such facts need not be restated fully herein (see Dkt. #80). This litigation
relates to Plaintiff’s prior employment with AIL, which was terminated on or about September
of 2009. See generally Despot v. American Income Life Ins. Co., No. 1:10-cv-932, 2012 WL
3070980, at *1 (S.D. Ohio July 30, 2012), aff’d Despot v. American Income Life Ins. Co.,
No. 12-4020 (6th Cir. July 3, 2013). Following Plaintiff’s termination, Plaintiff filed suit against
AIL and Torchmark (alleged to be AIL’s parent company) in the United States District Court for
the Southern District of Ohio and asserted claims for failure to accommodate Plaintiff’s religious
beliefs, religious and age discrimination, sexual harassment, and retaliation (the “Ohio
litigation”).

Id.

In the Ohio litigation, Plaintiff more specifically alleged that AIL and

Torchmark’s practice of requiring Plaintiff to travel on Sundays violated his religious beliefs,
and Plaintiff asserted that he was terminated when he complained about such practices. Id.
Plaintiff further asserted that he was terminated in retaliation for reporting sexual harassment to
his superiors. Id. The Ohio litigation resulted in a summary judgment in favor of AIL and
Torchmark and dismissal of Plaintiff’s claims with prejudice. The judgment of the Ohio district
court was later affirmed by the Sixth Circuit. Id.
Plaintiff then filed this litigation; Plaintiff initially filed in ten (10) separate cases before
the United States District Court for the Northern District of Texas on July 29, 2014 (Dkt. #1).
The Northern District of Texas determined venue to be improper and, on July 30, 2014, all ten
(10) cases were transferred to the United States District Court for the Eastern District of Texas
and later consolidated (Dkts. #5-6; Dkt. #11; Dkt. #72). In his Complaint before this Court,
Plaintiff once again alleges claims against Defendants AIL and Torchmark, and further asserts

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claims against Defendant Hartzog, Liberty Mutual, Family Heritage, and the Individual
Defendants (Dkt. #14). Plaintiff’s claims in the present litigation in large part are based on
and/or stem from his claims raised in the Ohio litigation. Id.
More specifically as to the Torchmark Defendants, and in addition to his
reasserted 2009 claims regarding discrimination and retaliation, Plaintiff contends that he was
not hired for various available positions with AIL, Liberty National, and/or Family Heritage that
he applied for in 2013 (Dkt. #14 at 3-4). Plaintiff alleges that he was discriminated and/or
retaliated against when he was not interviewed and/or hired for these positions.

Id.

As

previously described by the Magistrate Judge, Plaintiff makes single allegations regarding many
of the Defendants when setting forth the alleged wrongful conduct of each (see generally
Dkt. #14).
Plaintiff alleges his sparse factual allegations give rise to sixteen (16) causes of action
against Defendants AIL/Torchmark and Liberty National/Torchmark for: (1) breach of fiduciary
duty; (2) breach of oral contracts; (3) breach of written contracts; (4) defamation by libel;
(5) fraud by misrepresentation; (6) fraud by nondisclosure; (7) intentional infliction of emotional
distress; (8) interference with existing contract; (9) interference with prospective contract;
(10) invasion

of

privacy;

(11) misrepresentation;

(12) negligence;

(13)

negligent

misrepresentation; (14) promissory estoppel; (15) retaliation; and (16) “other federal laws and/or
Texas state laws applicable to this Complaint” (see generally Dkt. #14). Against Defendants
Family Heritage/Torchmark, Plaintiff asserts the following twelve (12) causes of action for:
(1) breach of fiduciary duty; (2) breach of oral contracts; (3) defamation by libel; (4) fraud by
misrepresentation; (5) fraud by nondisclosure; (6) intentional infliction of emotional distress;
(7) interference with prospective contract; (8) misrepresentation; (9) negligence; (10) negligent

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misrepresentation; (11) promissory estoppel; and (12) “other federal laws and/or Texas state laws
applicable to this Complaint.” Id. Plaintiff further alleges his factual allegations give rise to a
total of sixteen (16) causes of action against the Individual Defendants for: (1) breach of
fiduciary duty; (2) breach of oral contracts; (3) breach of written contracts; (4) defamation by
libel; (5) defamation by slander; (6) fraud by misrepresentation; (7) fraud by nondisclosure;
(8) intentional infliction of emotional distress; (9) interference with existing contract;
(10) interference with prospective contract; (11) invasion of privacy; (12) misrepresentation;
(13) negligence; (14) negligent misrepresentation; (15) promissory estoppel; and (16) “other
federal laws and/or Texas state laws applicable to this Complaint.” Id.  

On November 2, 2015, the Magistrate Judge entered a report and recommendation

containing proposed findings of fact and recommendations that the Torchmark Defendants’
Motion to Dismiss (Dkt. #21) be granted, and Plaintiff’s claims against the Torchmark
Defendants be dismissed with prejudice (Dkt. #80). The Magistrate Judge recommended that
Plaintiff’s claims arising out of conduct occurring in connection with Plaintiff’s
earlier 2009 employment and termination with AIL/Torchmark be dismissed because they are
barred by res judicata (Dkt. #80 at 30). Moreover, the Court recommended Plaintiff’s claims
against Family Heritage/Torchmark and the Individual Defendants for defamation by libel,
defamation by slander, intentional infliction of emotional distress, interference with existing
contract, interference with prospective contract, negligent misrepresentation, misrepresentation,
and negligence be dismissed because they are barred by the applicable statutes of limitations. Id.
In addition, the Magistrate Judge found Plaintiff’s Amended Complaint did not set forth
sufficient factual allegations sufficient to state a claim against Defendants, and more specifically,
Defendants AIL/Torchmark, Liberty National/Torchmark, Family Heritage/Torchmark, and

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Scott Smith. Id. On November 19, 2015, Plaintiff made a filing entitled “Plaintiff’s Initial
Response to Report and Recommendation of United States Magistrate Judge Dated
October 29, 2015 and November 2, 2015 (November 14, 2015)” (Dkt. #82), which the Court
construes as objections to the reports and recommendations of the Magistrate Judge.  
ANALYSIS
In his objections, Plaintiff states that he is “in disagreement” with the reports and
recommendations of the Magistrate Judge for “previously provided reasons,” and asserts that he
has been “severely prejudiced” (Dkt. #82 at 2). This is the entirety of Plaintiff’s objections to the
detailed report and recommendation of the Magistrate Judge.1 Id. 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); 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); Chase Bank USA, N.A. v. McLain, No. 1:12-CV-353, 2013 WL
713404, at *1 (E.D. Tex. Feb. 26, 2012). In Plaintiff’s filing, he does not identify any specific
issue of law or fact, among those set forth in the Magistrate Judge's report and recommendation,
with which he disagrees, nor does he address the findings and recommendations of the
Magistrate Judge. Therefore, Plaintiff’s objections fail to invoke his right to a de novo review of
the report and recommendation.

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On October 292, 2015, the Magistrate Judge also entered a report and recommendation recommending that
Plaintiff’s claims against Defendant Hartzog be dismissed (Dkt. #79). Notably, Plaintiff objects to both reports and
recommendations of the Magistrate Judge in Plaintiff’s single filing, but the Court addresses each report and
recommendation of the Magistrate Judge in a separate memorandum.
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Nevertheless, the Court has undertaken a de novo review of the reports and
recommendations.

The Court agrees with the Magistrate Judge that Plaintiff’s claims for

retaliation and all other claims that were or could have been raised in support of those causes of
action in the Ohio litigation are barred in this Court (Dkt. #80 at 13). Moreover, the Court agrees
that Plaintiff’s claims against Family Heritage, Torchmark, Roger Smith, Brian Mitchell,
Domenico Bertini, Robert Falvo, James Gentile, and Mark McAndrew for breach of fiduciary
duty, breach of oral contract, breach of written contract, fraud by misrepresentation, fraud by
nondisclosure, and promissory estoppel should be dismissed because they are barred by the
applicable statutes of limitations for each claim. Id. at 16. The Court also further agrees with the
Magistrate Judge that Plaintiff’s claims against the Torchmark Defendants should be dismissed
for failure to state a claim. Id. at 17-29. Accordingly, the 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.
CONCLUSION
Having received the report of the United States Magistrate Judge, having considered each
of Plaintiff’s timely filed objections (Dkt. #82), and having conducted a de novo review, this
Court is of the opinion that the findings and conclusions of the Magistrate Judge are correct and
adopts the Magistrate Judge’s report (Dkt. #80) as the findings and conclusions of the Court.
It is, therefore, ORDERED that Defendants Scott Smith, Roger Smith, Brian Mitchell,
Domenico Bertini, Robert Falvo, James Gentile, Mark McAndrew, American Income Life
Insurance Company, Torchmark Corporation, Family Heritage Life Insurance Company of
America, and Liberty National Life Insurance Company’s Motion to Dismiss Plaintiff’s
Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. #21) is

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GRANTED, and Plaintiff’s claims against the Torchmark Defendants are DISMISSED with
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prejudice for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). 
All relief not previously granted is DENIED. The Clerk is directed to CLOSE this civil
action.
IT IS SO ORDERED.
SIGNED this 14th day of December, 2015.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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