Kelley v. Gustafson et al

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS DENYING, at this time, 7 Motion to Dismiss filed by Angie Buffington, Dennis Gustafson, Sharon Gustafson, DENYING, as Moot, 22 Motion for Extension of Time to File filed by Richard G Kelley and ORD ERING that Plaintiff is to amend complaint on or before February 7, 2014, including proper business name of dfts and court advises Plaintiff of failure to amend or include proper business name of dfts may result in dismissal of case. Signed by Judge Michael H. Schneider on 1/28/2014. (sm, )

IN THE UNITED STATES DISTRICT COURT
OF THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
RICHARD G. KELLEY
V.
SHARON GUSTAFSON, DENNIS
GUSTAFSON, AND ANGIE
BUFFINGTON, D.B.A. AR-TEX TAXI
& COURIER SERVICES

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No. 5:13CV27

MEMORANDUM ORDER
ADOPTING REPORT AND RECOMMENDATION
The above-entitled and numbered civil action was heretofore referred to United States
Magistrate Judge Caroline M. Craven pursuant to 28 U.S.C. § 636. The Report of the Magistrate
Judge which contains her proposed findings of fact and recommendations for the disposition of
such action has been presented for consideration. Richard G. Kelley (“Plaintiff”), proceeding
pro se, filed objections to the Report and Recommendation. The Court conducted a de novo
review of the Magistrate Judge’s findings and conclusions.
On March 27, 2013, Plaintiff filed this action for unlawful discrimination under 42
U.S.C. §1981 and for violations of the Fair Labor Standards Act (“FLSA”) against Defendants
Sharon Gustafson, Dennis Gustafson, and Angie Buffington d.b.a. Ar-Tex Taxi & Courier
Services (“Defendants”). Defendants moved to dismiss, asserting they are not now nor have they
ever done business as Ar-Tex Taxi & Courier Services. After ordering him to do so, Plaintiff
filed a response to Defendants’ motion to dismiss. Plaintiff later filed a motion for partial
summary judgment and a motion for entry of judgment as a matter of law. Approximately six
weeks after Plaintiff’s motions became ripe for consideration, on December 17, 2013, Plaintiff
filed a motion for recusal of the Magistrate Judge.

On January 3, 2014, the Magistrate Judge issued an Order denying Plaintiff’s motion for
recusal, finding Plaintiff’s assertion insufficient to demonstrate that a reasonable person,
knowing all the circumstances, would believe it improper for the Magistrate Judge to sit in this
case. Plaintiff has not filed a motion for reconsideration of that order even though the Magistrate
Judge specifically advised Plaintiff of his right to do so.
On January 3, 2014, after denying Plaintiff’s motion for recusal, the Magistrate Judge
issued a Report and Recommendation recommending Defendants’ motion to dismiss and
Plaintiff’s motion for partial summary judgment be denied. Specifically, the Magistrate Judge
ordered Plaintiff to amend his original complaint within thirty days, including the proper
business name of Defendants.
The Magistrate Judge also recommended Plaintiff’s motion for partial summary judgment and
motion for entry of judgment be denied. Among other things, the Magistrate Judge stated the
motions were premature as the case has not yet been set for a scheduling conference and no
discovery order has been entered to govern this case.
In his objections, Plaintiff asserts the Magistrate Judge erred as follows: (1) she failed to
recuse in response to Plaintiff’s Motion for Recusal; (2) she erroneously concluded Defendants
had created a genuine issue of material fact concerning Plaintiff’s discriminatory failure to
promote claim; and (3) she erroneously concluded Defendants had created a genuine issue of
material fact concerning Plaintiff’s FLSA claims. The Court considered all of Plaintiff’s
objections and agrees with the Magistrate Judge that Plaintiff’s motion for partial summary
judgment is premature. No scheduling order or discovery order has been entered in this case.
Nor have the parties engaged in discovery on the substance of Plaintiff’s claims. As such,
Plaintiff’s dispositive motions should be denied at this time.

The Court, having reviewed the relevant briefing, the Report and Recommendation, and
Plaintiff’s objections, is of the opinion the findings and conclusions of the Magistrate Judge are
correct. Therefore, the Court hereby adopts the Report of the United States Magistrate Judge as
the findings and conclusions of this Court. Accordingly, it is hereby
ORDERED that Defendants’ Motion to Dismiss (Dkt. No. 7) is DENIED at this time.
Plaintiff shall amend his complaint on or before February 7, 2014, including the proper business
name of Defendants. The Court advises Plaintiff that failure to amend or failure to include the
proper business name of Defendants may result in the dismissal of his cause of action. It is
further
.

ORDERED that Plaintiff’s Motion for Partial Summary Judgment (Dkt. No. 13) and

Motion for Entry of Judgment as a Matter of Law on Plaintiff’s Unopposed Motion for Partial
Summary Judgment (Dkt. No. 14) are DENIED. It is further
ORDERED that Plaintiff’s Motion for Extension of Time to File Objections (Dkt. No.
22) is DENIED AS MOOT.
It is SO ORDERED.
SIGNED this 28th day of January, 2014.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE