Washington v. Arelco Inc et al

Filing 39

ORDER ADOPTING 33 Report and Recommendations of US Magistrate Judge. Order granting Defendants' 26 First Motion to Dismiss. For the reasons stated in this Order, the Court finds that the Plaintiff has failed to state a cognizable legal claim. Signed by Judge Michael H. Schneider on 2/14/2012. (leh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION

SHIRLYN A. WASHINGTON
Plaintiff,
v.
ARELCO, INC., ET AL
Defendants.

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NO. 6:09-cv-432

ORDER ADOPTING REPORT AND
RECOMMENDATION OF U.S. MAGISTRATE JUDGE
The above entitled and numbered civil action was referred to United States Magistrate Judge
John D. Love pursuant to 28 U.S.C. § 636. The Order of the Magistrate Judge, which contains his
recommendation that Defendants’ Motion to Dismiss for Plaintiff’s Failure to State a Claim be
granted (“Report and Recommendation”) has been presented for consideration (Doc. No. 33). On
October 3, 2011, after the Magistrate Judge issued his Report and Recommendation granting
Defendants’ motion, Plaintiff Shirlyn Washington (“Plaintiff” or “Washington”) filed what she
referred to as a “Motion for an Extension of Time to File Opposition to Motion to Dismiss For
Plaintiff’s Failure to State a Claim.” (Doc. No. 35). Because the Magistrate Judge had already ruled
on Defendants’ Motion, the Magistrate Judge treated Plaintiff’s request as a request for an extension
to file objections to the Report and Recommendation. See (Doc. No. 36).
On November 21, 2011, Plaintiff filed her “response” to Defendants’ motion to dismiss.
(Doc. No. 38). Pursuant to the Magistrate Judge’s October Order (Doc. No. 36), the Court treats
Plaintiff’s response as an objection to the Magistrate Judge’s Report and Recommendation.
Plaintiff’s response restates some of her previous allegations under the guise of a negligence action

but does not present any objections to the Report and Recommendation. See (Doc. No. 38).
Even if the Court were to accept Plaintiff’s response as proper, it fails to state a plausible
claim for relief. While Plaintiff’s response generally includes allegations that Defendants’ actions
amounted to negligence, the response does not provide sufficient facts that plausibly establish a
cognizable claim for negligence. In order to succeed on a claim of negligence, Plaintiff must
establish three elements: (1) a legal duty by the defendant; (2) a breach of that duty; and (3) damages
proximately resulting from that breach. D. Houston, Inc. v. Love, 92 S.W. 3d 450, 454 (Tex. 2002).
Moreover, “in order to avoid dismissal for failure to state a claim . . . a plaintiff must plead specific
facts, not mere conclusory allegations.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498
(5th Cir. 2000). Plaintiff’s response does not substantively alter her previous allegations, but only
includes the addition of legal conclusions that Defendants acted negligently. See OBJECTIONS at 2.
The crux of Plaintiff’s argument remains that “Defendants rented [Plaintiff’s son] a car without
inspecting his driver’s license and that failing to do so constituted a violation of company policy.”
REPORT AND RECOMMENDATION at 4. The addition of conclusory legal statements does not raise
Plaintiff’s allegations to the level of a proper pleading. Thus, for the reasons explained above and

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those in the Magistrate Judge’s Report and Recommendation, the Court finds that Plaintiff has failed
to state a cognizable legal claim.
Accordingly, the Court is of the opinion that the Magistrate Judge’s findings in the Order are
correct. Therefore, Plaintiff’s objections are overruled and the Court hereby adopts the Order of the
United States Magistrate Judge as the findings and conclusions of this Court.
It is SO ORDERED.

SIGNED this 14th day of February, 2012.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE