Lowe v. ViewPoint Bank

Filing 78

Order Accepting 74 Findings and Recommendation of the United States Magistrate Judge. Defendant ViewPoint Bank's motion to dismiss for failure to state a claim, or, in the alternative, for summary judgment, filed 12/8/2013 (docket entr y 63) is granted on plaintiff's claims under 42 U.S.C. § 1983, the Federal Reserve Act (FRA), 12 U.S.C. § 503, the RFPA, breach of good faith, and defamation and slander. The motion is denied as to plaintiff's remaining cla ims, i.e., breach of ordinary care under the UCC, negligence and breach of contract. Plaintiff Sherri R. Lowe's motion for summary judgment for all claims against defendant Viewpoint Bank, filed 1/3/2014 (docket entry 68), is denied. (Ordered by Senior Judge A. Joe Fish on 9/16/2014) (jrr)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

SHERRI R. LOWE,
Plaintiff,
VS.
VIEWPOINT BANK,
Defendant.

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CIVIL ACTION NO.
3:12-CV-1725-G (BH)

ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE

After reviewing all relevant matters of record in this case, including the
findings, conclusions, and recommendation of the United States Magistrate Judge
and any objections thereto, in accordance with 28 U.S.C. § 636(b)(1), the
undersigned district judge is of the opinion that the findings and conclusions of the
magistrate judge are correct and they are accepted as the findings and conclusions of
the court.
Defendant ViewPoint Bank’s motion to dismiss for failure to state a claim, or,
in the alternative, for summary judgment, filed December 8, 2013 (docket entry 63)
is GRANTED on plaintiff’s claims under 42 U.S.C. § 1983, the Federal Reserve Act

(FRA), 12 U.S.C. § 503, the RFPA, breach of good faith, and defamation and slander.
The motion is DENIED as to plaintiff’s remaining claims, i.e., breach of ordinary care
under the UCC, negligence and breach of contract. Plaintiff Sherri R. Lowe’s motion
for summary judgment for all claims against defendant Viewpoint Bank, filed
January 3, 2014 (docket entry 68), is DENIED.
The court did not consider the new evidence and legal claims presented in the
defendant’s objections. While a “district court has wide discretion to consider and
reconsider the magistrate judge’s recommendation, . . . litigants may not . . . use the
magistrate judge as a mere sounding-board.” Freeman v. County of Bexar, 142 F.3d
848, 852 (5th Cir. 1998). In this instance, the court concludes that reviewing the
defendant’s objections would encourage this very behavior. The defendant should
have alleged the plaintiff’s failure to plead damages and proffered the additional
exhibit before the magistrate judge. In order for the court to consider the substance
of the defendant’s objections, they will have to file for leave to file a second motion
for summary judgment.
SO ORDERED.

September 16, 2014.
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A. JOE FISH
Senior United States District Judge

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