Banquete Independent School District v. The Alliance for Community Solutions, Ltd.

Filing 66

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 59 Memorandum and Recommendations, DENYING 47 MOTION Plea to the Jurisdiction, and DENYING 35 Opposed AMENDED MOTION Opposed MOTION to Exclude expert witness (Signed by Judge David S Morales) Parties notified. (aar2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

November 26, 2024
Nathan Ochsner, Clerk

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BANQUETE INDEPENDENT SCHOOL
DISTRICT,
Plaintiff,

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V.

CIVIL ACTION NO. 2:22-CV-00094

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THE ALLIANCE FOR COMMUNITY
SOLUTIONS, LTD.,

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Defendant.

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Before the Court is Magistrate Judge Jason B. Libby's Memorandum and Recommendation
("M&R"). (D.E. 59). The M&R recommends that the Court (1) deny Plaintiff's Amended Motion to
Exclude Expert Witness Joe Abrams, (D.E. 35), and (2) deny Plaintiff's Motion to Plea to the
Jurisdiction, (D.E. 47). (D.E. 59, p. 11). Plaintiff objects to the M&R. (D.E. 62). After review, the
Court OVERRULES Plaintiff's objections, (D.E. 62), and ADOPTS the M&R in its entirety,
(D.E. 59). Accordingly, the Court DENIES Plaintiff's Amended Motion to Exclude Expert Witness
Joe Abrams, (D.E. 35), and DENIES Plaintiff's Motion to Plea to the Jurisdiction, (D.E. 47).
When a party objects to the findings and recommendations of a magistrate judge, the district
judge "shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1 )(C). A party "must
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point out with particularity" any alleged errors in the magistrate judge's analysis. Pelko v. Perales, No.
2:23-CV-00339, 2024 WL 1972896, at *l (S.D. Tex. May 3, 2024) (Ramos, J.). Moreover,
"[fJrivolous, conclusive or general objections need not be considered by the district court." Nettles v.

Wainwright, 677 F.2d 404,4 10 n.8 (5th Cir. 1982) (en bane), overruled on other grounds by Douglass
v. United Servs. Auto. Ass 'n, 79 F.3d 1415 , 1416 (5th Cir. 1996) (en bane), superseded by statute on
other grounds, 28 U.S.C. § 636(b)(l). As to any portion for which no objection is filed, a district court

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reviews for clearly erroneous factual findings and conclusions of law. United States v. Wilson, 864
F .2d 1219, 1221 (5th Cir. 1989) (per curiam).
Plaintiff lodges three objections to the M&R's recommendation that the Court deny Plaintiff's
Motion to Plea to the Jurisdiction : (1) Plaintiff's plea to the Jurisdiction should have been granted;
(2) Plaintiff could not withdraw its motion and file a proper motion to dismiss under Federal Rule of
Civ il Procedure l 2(b )(1 ); and (3) Plaintiff did not waive its sovereign immunity because the Interlocal
Agreement does not contain all the essential terms for a valid waiver and was not properly executed
(D.E. 62, p. 2- 5). Plaintiff does not object to the M&R's recommendation that the Court deny
Plaintiff's motion to exclude. See id. at 1- 5.
The Court need not consider the first objection because it is conclusive and general. 1 Nettles,
677 F.2d at 410 n.8.
The Court OVERRULES the second objection. Judge Libby expressed dissatisfaction that
Plaintiff failed to file an appropriate motion for the Court's consideration of jurisdiction. (D.E. 59,
p. 2). Plaintiff objects, arguing that it could not correct this error, as the deadline to file any dispositive
motions had passed. (D.E. 62, p. 2). Plaintiff does not explain why it could not seek leave to file a
revised dispositive motion after the deadline passed. And this is neither here nor there. Judge Libby
looked past Plaintiff's failure to file an appropriate motion and considered Plaintiff's motion as one
filed pursuant to Rule 12(b)(] ). (D.E. 59, p. 2). So, it does not matter whether Plaintiff could timely
file a proper motion under Rule 12(b)(l).
The Court OVERRULES the third objection. Plaintiff disagrees with the M&R's finding that
Plaintiff does not receive governmental immunity from counterclaims to the extent that any recovery

Plaintiff raises this same objection three times: "Plaintiff further objects because Plaintiffs Plea to the
Jurisdiction should have been granted," (D.E. 62, p. 2); "Plaintiff further objects to these findings because
BISD's motion should be granted," id. at 4; and "Plaintiff objects to these findings because Plaintiffs Plea
to the Jurisdiction should be granted," id.
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on these counterclaims serves as an offset against the government' s recovery. (D.E. 62, p. 2- 3) (citing
D.E. 59, p. 5- 6). Plaintiff offers two reasons that Defendant did not show a valid waiver of
governmental immunity: (1) the Interlocal Agreement does not contain all essential terms for a valid
waiver of governmental immunity under Texas Local Government Code § 271.152 and (2) the
Interlocal Agreement was not properly executed. (D.E. 62, p. 2- 3). But Plaintiff talks past the M&R' s
conclusion. The M&R did not determine whether the Interlocal Agreement waived sovereign
immunity. See (D.E. 59, p. 6 n.2). Instead, the M&R determined that sovereign immunity does not
apply to Defendant's counterclaim to the extent it is a defensive counterclaim that operates as an offset
to Plaintiff's recovery. See id. (first quoting St. Maron Props., L.L. C. v. City of Houston , 78 F.4th 754,
764 (5th Cir. 2023); then quoting Nazari v. State, 561 S.W.3d 495 , 502- 03 (Tex. 2018); and then
quoting Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 , 375 (Tex. 2006)).
Having reviewed the proposed findings and conclusions of the M&R, the record, the applicable
law, and having made a de novo review of the portions of the M&R to which Plaintiff's objections are
directed, 28 U.S.C. § 636(b)(l)(C), the Court OVERRULES Plaintiff's objections, (D.E. 62), and

ADOPTS the M&R in its entirety, (D.E. 59). The Court DENIES Plaintiff's Amended Motion to
Exclude Expert Witness Joe Abrams, (D.E. 35), and DENIES Plaintiff's Motion to

lea to the

Jurisdiction, (D.E. 47).
SO ORDERED.

UNITED STA TES DISTRICT JUDGE
Signed: Corpus Chr!§ti, ):e_xas
November _
l fr':5.
_, 2024

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