B Choice Limited v. Epicentre Development Associates, LLC et al

Filing 138

ORDER ADOPTING 119 MEMORANDUM AND RECOMMENDATIONS GRANTING IN PART DENYING IN PART 43 MOTION to Dismiss 1 Complaint , GRANTING IN PART DENYING IN PART 48 MOTION to Dismiss , GRANTING IN PART DENYING IN PART 60 MOT ION to Dismiss 57 Amended Complaint/Counterclaim/Crossclaim etc. , GRANTING IN PART DENYING IN PART 61 First MOTION to Dismiss 57 Amended Complaint/Counterclaim/Crossclaim etc. .(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
B. CHOICE LIMITED ,
Plaintiff,
v.
EPICENTRE DEVELOPMENT
ASSOCIATES, LLC., et al.,
Defendants.

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CIVIL ACTION H-14-2096

O RDER
Before the court are the Magistrate Judge’s memorandum and recommendation (“M&R”)
(Dkt. 119); defendants Alianza Financial Services, LLC, Alianza Holding, LLC, Omar Botero, Jr.,
Albert F. Delaney, Gilberto Iragorri, EpiCentre Development, Associates, LLC, Epicentre
Development Associates II, LLC, Vanguard Equity Holdings, LLC, Vantage Equity Holdings, LLC,
Vantage Financial Services, LLC, Vantage Plus Corp., Vantage Plus Development Company, LLC,
and Vantage Realty Holdings, VI-X, LLC’s (the “EpiCentre Defendants”) objections to the M&R
(Dkt. 120); and plaintiff B Choice Limited’s (“BCL”) objections to the M&R (Dkt. 123). The
Magistrate recommended that defendant PLG Consulting, Ltd.’s (“PLG”) Rule 12(b)(2) motion to
dismiss be denied and its Rule 12(b)(6) motion to dismiss be granted. Dkt. 119. The Magistrate also
recommended that defendants Guiduzzi and F&G Consultancy, Ltd.’s Rule 12(b)(6) motion to
dismiss be granted in part and denied in part. Id. Having reviewed the M&R, defendants’
objections, plaintiff’s objections, and applicable law, the court OVERRULES the objections and
ADOPTS the M&R in its entirety.
The M&R states that “failure to file written objections within the time period mentioned shall
bar an aggrieved party from attacking the factual findings and legal conclusions on appeal.”

Dkt. 119 at 25. The EpiCentre Defendants object to the “factual allegations” outlined in the M&R
to the extent that they are findings of fact. Dkt. 120. The M&R states that the factual account in the
M&R is “derived from Plaintiff’s live complaint.” Dkt. 119 at 2. The Magistrate correctly
considered the allegations contained in the complaint in considering the motions to dismiss.
Consideration of the facts as alleged by plaintiff does not amount to a finding of fact. Accordingly,
the objection (Dkt. 120) is OVERRULED.
Plaintiff filed six objections to the M&R. Dkt. 123. Objections 6.1, 6.2, 6.3, and 7 merely
object to the Magistrate’s adverse recommendation based on the same reasons put forth in the
original briefing. Id. The M&R correctly analyzes the facts and applicable law. Accordingly, these
objections are OVERRULED.
Plaintiff also objects to “the Magistrate’s apparent recommendation that all claims against
PLG be dismissed, despite the Magistrate’s finding that Guiduzzi acted on behalf of PLG. Because
of this finding, BCL objects to the Recommendation as to PLG because any claims properly pled
against Guiduzzi must still be valid as against PLG.” Dkt. 123 at 3. The M&R recommends
allowing plaintiff to proceed on its breach of fiduciary duty claim against Guiduzzi. Dkt. 119 at 25.
However, plaintiff’s second amended complaint does not allege a breach of fiduciary duty claim
against PLG. Dkt. 78 at 47-48. Plaintiff apparently objects to the dismissal of a claim that was never
asserted. Accordingly, the objection is OVERRULED.
Plaintiff’s final objection is that the Magistrate did not recommend allowing it to amend its
complaint after finding that some of the claims should be dismissed. Plaintiff had already amended
its complaint twice before the M&R was entered, and at that time, the deadline to amend the

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pleadings had already passed. The court finds that an amendment would have been futile, and the
objection is OVERRULED.
The M&R (Dkt. 119) is ADOPTED IN FULL. Defendants PLG and Guiduzzi’s motion to
dismiss (Dkts. 43 and 60) is GRANTED IN PART and DENIED IN PART. Defendant F&G’s
motion to dismiss (Dkts. 48 and 61) is GRANTED IN PART and DENIED IN PART.
Signed at Houston, Texas on July 7, 2015.

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Gray H. Miller
United States District Judge

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