Carter v. EZ Flo International et al

Filing 107

ORDER ADOPTING 96 Report and Recommendations of the United States Magistrate Judge. It is ORDERED that Plaintiff shall have 14 days from the receipt of this Order to file an amended complaint that addresses the deficiencies set forth herein and in the Report. Further, it is ORDERED that Plaintiff shall have 14 days from receipt of this Order to return properly executed service on Defendants EZ Flo, Wal-Mart, Home Depot, Ferguson, and Hajoca. Signed by District Judge Jeremy D. Kernodle on 11/21/2022. (wea, )

Case 6:22-cv-00094-JDK-JDL Document 107 Filed 11/21/22 Page 1 of 5 PageID #: 1475

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
FRANK L. CARTER, c/o ULTIMATE
HOME PROTECTOR PANS, INC.;
Plaintiff,
v.
EZ FLO INTERNATIONAL, et al.,
Defendants.

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Case No. 6:22-cv-94-JDK-JDL

ORDER ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Plaintiff Frank Carter, proceeding pro se, filed this patent infringement action
on March 14, 2022. The case was referred to United States Magistrate Judge John
D. Love for findings of fact, conclusions of law, and recommendations for the
disposition of the action.
Before the Court are several motions to dismiss by various Defendants. On
September 2, 2022, Judge Love issued a Report making the following
recommendations. Docket No. 96. The Report recommends that the Court GRANT
the following motions to dismiss for failure to state a claim:


Camco and Lowes’s motion to dismiss (Docket No. 44);



eBay’s motion to dismiss (Docket No. 50);



Famous Supply’s motion to dismiss (Docket No. 54);



Dura Flex’s motion to dismiss (Docket No. 55);



Tractor Supply’s motion to dismiss (Docket No. 56);
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

Whirlpool’s motion to dismiss (Docket No. 59);



Winsupply’s motion to dismiss (Docket No. 61); and



Lambro’s motion to dismiss (Docket No. 84).

The Report recommends that the Court GRANT the following motions to dismiss for
lack of personal jurisdiction:


Menards and M&S’s motion to dismiss (Docket No. 26); and



Haier’s motion to dismiss (Docket No. 44).

The Report further recommends that the Court DENY the following motions
to dismiss without prejudice to re-urging and to allow Plaintiff until October 10,
2022, to accomplish proper service on Defendants:


EZ Flo’s motion to dismiss (Docket No. 51); and



Wal-Mart’s motion to dismiss (Docket No. 79).

Finally, the Report recommends allowing Plaintiff until October 10, 2022, to return
properly executed service on Defendants Home Depot, Ferguson, and Hajoca.
On September 21, 2022, and October 17, 2022, Judge Love granted Plaintiff
extensions of time to object to the Report, ultimately extending the deadline for
objections to November 15, 2022, and stating that no further extensions would be
granted. Docket Nos. 99, 103. Despite the significant extension, Plaintiff has not
timely filed any objections to the Magistrate Judge’s Report.
Instead, Plaintiff has moved for a hearing (Docket No. 102) and moved for an
extension of time (Docket No. 106). Plaintiff’s motions, however, do not state a basis
for a hearing and do not specifically request an extension of time. The Court finds no

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present basis for a hearing in this matter and finds any further extension of time
unmerited as Plaintiff has already been granted two extensions and has had more
than sixty days to object to the Magistrate Judge’s Report but has failed to do so.
Rather than request an extension, Plaintiff’s motion (Docket No. 106) requests that
the undersigned meet with Plaintiff regarding his case and complains that he never
consented to a Magistrate Judge presiding over his case. Docket No. 106 at 2.
To the extent that Plaintiff is objecting to the Report on the grounds that the
case was referred to a Magistrate Judge, Plaintiff does not possess a due process right
regarding the referral of a case to a Magistrate Judge. A District Judge may refer
pre-trial and preliminary matters to a Magistrate Judge to issue a Report and
Recommendation or other pretrial order, for which no consent is required.
Newsome v. E.E.O.C., 301 F.3d 227, 230 (5th Cir. 2002).
therefore OVERRULED.

See

Plaintiff’s objection is

Further, the Court hereby DENIES Plaintiff’s

motions for a hearing and for an extension of time in order to confer (Docket Nos.
102, 106).
As to the Report itself, Plaintiff has presented no objections, and the Court has
reviewed the pleadings in this cause and the Report of the Magistrate Judge. Upon
such review, the Court has determined that 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) (holding that 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 United States Magistrate
Judge (Docket No. 96) is ADOPTED as the opinion of the Court. Menards and M&S’s
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motion to dismiss (Docket No. 26) is GRANTED for lack of personal jurisdiction;
Defendants’ motion (Docket No. 44) is GRANTED for failure to state a claim as to
Defendants Camco and Lowes, and GRANTED as to Defendant Haier for lack of
personal jurisdiction; eBay’s motion to dismiss (Docket No. 50) is GRANTED for
failure to state a claim; EZ Flo’s motion to dismiss (Docket No. 51) is DENIED
without prejudice to re-urging; Famous Supply’s motion to dismiss (Docket No. 54) is
GRANTED for failure to state a claim; Dura Flex’s motion to dismiss (Docket No. 55)
is GRANTED for failure to state a claim; Tractor Supply’s motion to dismiss (Docket
No. 56) is GRANTED for failure to state a claim; Whirlpool’s motion to dismiss
(Docket No. 59) is GRANTED for failure to state a claim; Winsupply’s motion to
dismiss (Docket No. 61) is GRANTED for failure to state a claim; Wal-Mart’s motion
to dismiss (Docket No. 79) is DENIED without prejudice to re-urging; and Lambro’s
motion to dismiss (Docket No. 84) is GRANTED for failure to state a claim.
Because the Magistrate Judge has recommended that Plaintiff, proceeding pro
se, be first given an opportunity to amend, and the Court agrees with the
recommendation, see Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994), the Court will not at
this time determine whether Plaintiff’s claims should be dismissed with or without
prejudice as to each Defendant whose motion has been granted herein. Rather, it is
ORDERED that Plaintiff shall have 14 days from the receipt of this Order to file an
amended complaint that addresses the deficiencies set forth herein and in the Report.
Plaintiff’s amended complaint should focus on his asserted claims, the asserted
infringing products, and how those products infringe the claims of the Patent-In-Suit.

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Moreover, to date, Plaintiff has also not cured any service issues with respect
to Defendants who were not properly served in this matter.

Accordingly, it is

ORDERED that Plaintiff shall have 14 days from receipt of this Order to return
properly executed service on Defendants EZ Flo, Wal-Mart, Home Depot, Ferguson,
and Hajoca.
Failure to comply with this Order may result in dismissal of this action.
So ORDERED and SIGNED this 21st day of November, 2022.

___________________________________
JEREMY D. KERNODLE
UNITED STATES DISTRICT JUDGE

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