Gilmour v. Intertek USA, Inc. et al

Filing 62

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS denying as moot 46 MOTION to Strike 45 Response to Motion for Summary Judgment, granting 43 MOTION for Summary Judgment and Brief in Support, 60 Memorandum and Recommendations, (Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
NEIL GILMOUR III

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Plaintiff.
VS.
INTERTEK USA, INC., et al.
Defendants.

June 20, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 3:16–CV–00266

ORDER ADOPTING MAGISTRATE JUDGE’S
MEMORANDUM AND RECOMMENDATION
Pending before the Court is the May 30, 2018 Memorandum and Recommendation
of United States Magistrate Judge Andrew M. Edison. On April 18, 2018, this case was
referred to Judge Edison.

(Dkt. 54).

On May 30, 2018, Judge Edison filed a

Memorandum and Recommendation recommending that Intertek Defendants’ Motion for
Summary Judgment (Dkt. 43) be granted and Intertek Defendants Motion to Strike (Dkt.
46) be denied as moot.
On June 10, 2018, Plaintiff Neil Gilmour, III, filed his Objections (Dkt. 61). In
accordance with 28 U.S.C. § 636(b)(1), this Court is required to “make a de novo
determination of those portions of the [magistrate judge’s] report or specified proposed
findings or recommendations to which objection [has been] made.” After conducting this
de novo review, the Court may “accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.”
72(b)(3).
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Id.; see also FED. R. CIV. P.

The Court has carefully reviewed the Objections; the Memorandum and
Recommendation; the pleadings; and the briefing and arguments of the parties. The
Court notes that in his Objections, Gilmour advances a new argument—one he failed to
assert in response to Intertek Defendants’ Motion for Summary Judgment—in support of
his negligent misrepresentation claim. Specifically, Gilmour asserts for the first time that
his negligent misrepresentation claim began to accrue on the date he first realized an
injury because of the alleged misrepresentation, as opposed to the ordinary rule that such
claims accrue when the misrepresentation is made.

Based on this new argument,

Gilmour contends that the Court improperly calculated the statute of limitations
applicable to the negligent misrepresentation claim. “Because [Gilmour is] not entitled to
raise arguments for the first time in [his] objections to the Magistrate Judge's Report and
Recommendation that were not asserted in [his] Motion, these new arguments are not
properly before the Court for consideration.” McPeak-Torres v. Texas, No. CV G-12075, 2015 WL 12748276, at *1 (S.D. Tex. Jan. 22, 2015) (Costa, J.). See also Freeman
v. County of Bexar, 142 F.3d 848, 850 (5th Cir. 1998) (recognizing that, absent
compelling reasons, the requirement of the District Court conduct de novo review does
not permit the parties to raise “new evidence, argument, and issues that were not
presented to the Magistrate Judge”); Cupit v. Whiteley, 28 F.3d 532, 535 (5th Cir. 1994)
(arguments that could have been raised before the Magistrate Judge, but were raised for
the first time in objections before the District Court, were waived); Paterson–Leitch Co.,
Inc. v. Mass. Mun. Wholesale Elec., Inc., 840 F.2d 985, 990–91 (1st Cir. 1988) (while a
party is entitled to de novo review before the District Court upon filing objections to the
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Report and Recommendation of the Magistrate Judge, this does not entitle him to raise
issues which were not previously presented to the Magistrate Judge).
The Court ACCEPTS Judge Edison’s Memorandum and Recommendation and
ADOPTS it as the opinion of the Court. It is therefore ORDERED that:
(1)

Judge Edison’s Memorandum and Recommendation is APPROVED AND
ADOPTED in its entirety as the holding of the Court;

(2)

Intertek Defendants’ Motion for Summary Judgment (Dkt. 43) is
GRANTED;

(3)

Intertek Defendants' Motion to Strike (Dkt. 46) is DENIED as moot; and

(4)

This case is DISMISSED.

It is so ORDERED.
SIGNED at Galveston, Texas, this 20th day of June, 2018.
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George C. Hanks Jr.
United States District Judge

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