Lowe v. Eltan, B.V. et al

Filing 213

ORDER PARTIALLY ADOPTING 195 REPORT AND RECOMMENDATIONS of the Magistrate Judge. Judge Giblin's Report and Recommendation 195 on the pending motions to dismiss is ADOPTED, in part, as to the magistrate judge's recommendation that the c laims of the pro se plaintiffs must be dismissed. The Court further ORDERS that the pending motions to dismiss 137 , 141 , 149 , 182 , & 183 are GRANTED in part, and DENIED in part, without prejudice to reassert. The claims asserted by the fo llowing pro se plaintiffs are dismissed in their entirety, without prejudice: Rainee Busby, Aline Dickey, Robert Haugen, Gina Long, Pete Murphy, Kajal Roy, Wyndy Sheets, and Aparna Cherukupalli. Those pro se plaintiffs are DISMISSED and the Clerk is directed to terminate them as active parties. All other pending causes of action asserted by the remaining plaintiffs are still active at this time, pending further order by the Court. Signed by Judge Ron Clark on 3/22/13. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
JANIS LOWE, et al.,
Plaintiffs,
v.
ELTAN, B.V., et al.,
Defendants.

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CIVIL ACTION NO. 9:05-CV-38

ORDER PARTIALLY ADOPTING MAGISTRATE JUDGE’S
RECOMMENDATION AND OF PARTIAL DISMISSAL
The Court referred this matter to United States Magistrate Judge Keith F. Giblin for
consideration and recommended disposition of case-dispositive pretrial motions. On February 21,
2013, Judge Giblin issued a report and recommendation on the defendants’ pending motions to
dismiss. Judge Giblin recommended that the Court grant the motions to dismiss and dismiss all
plaintiffs’ claims against the defendants, without prejudice. In support, Judge Giblin found that the
plaintiffs are legally precluded from pursuing a shareholder’s derivative suit pro se. See Report and
Recommendation [Doc. #195].
After Judge Giblin issued his report, eighteen (18) of the formerly pro se plaintiffs retained
counsel. See Notices of Appearance [Doc. #198, Doc. #203]. Those plaintiffs also objected to the
magistrate judge’s report on the grounds that the factual basis upon which the magistrate judge based
his recommendation no longer constitutes a valid reason to deny the plaintiffs “their day in court.”
See Objections [Doc. #201]. The represented plaintiffs have also requested leave to amend their
pleading and for the entry of a scheduling order, which the defendants have opposed. Eight (8) of

the remaining plaintiffs, however, are still pro se. Those pro se plaintiffs have not filed objections
to the report and recommendation.
Pursuant to the plaintiffs’ objections and in accordance with 28 U.S.C. § 636(b)(1), the Court
conducted a de novo review of the magistrate judge’s findings, the record, the specific objections,
and the applicable law in this proceeding. The Court has also considered the recent developments
in the case. After review, the Court finds that Judge Giblin’s findings should be accepted in part.
The Court therefore ORDERS as follows:
Judge Giblin’s Report and Recommendation [Doc. #195] on the pending motions to dismiss
is ADOPTED, in part, as to the magistrate judge’s recommendation that the claims of the pro se
plaintiffs must be dismissed. The represented plaintiffs’ Objections [Doc. #201] are sustained at this
time. The Court accordingly declines to adopt the magistrate judge’s recommendation of dismissal
as to those plaintiffs.
The Court further ORDERS that the pending motions to dismiss [Doc. #s 137, #141, #149,
#182, #183] are GRANTED in part, and DENIED in part, without prejudice to reassert. The
motions are granted regarding the claims asserted by the remaining pro se plaintiffs, but denied as
to the plaintiffs who have since retained counsel. The motions to dismiss are denied without
prejudice to reassert the arguments stated therein after the Court has ruled on the plaintiffs’ pending
motion for leave to amend and for entry of a scheduling order.
The Court further ORDERS that the claims asserted by the following pro se plaintiffs are
dismissed in their entirety, without prejudice:
Rainee Busby, Aline Dickey, Robert Haugen, Gina Long, Pete Murphy, Kajal Roy,
Wyndy Sheets, and Aparna Cherukupalli.
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Those pro se plaintiffs are DISMISSED and the Clerk is directed to terminate them as active
parties. All other pending causes of action asserted by the remaining plaintiffs are still active at this
time, pending further order by the Court.

So ORDERED and SIGNED this 22 day of March, 2013.

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Ron Clark, United States District Judge

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