Kane v. Yancey et al

Filing 27

ORDER granting 15 Second Motion to Dismiss and Compel Arbitration, Plaintiff's claims against Defendant Yancey LLC are DISMISSED from this suit without prejudice, in favor of being asserted and pursued in arbitration pursuant to the terms for such in the Purchase Order ; denying 16 Motion to Strike; denying 20 Motion for Sanctions.(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MADOUSSOU KANE,
Plaintiff,
VS.
SCOTT YANCEY, et al,
Defendants.

§
§
§
§
§
§
§
§

January 05, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. 4:15-CV-1861

OPINION AND ORDER
Before the court are Defendant Yancey, LLC’s Motion to Dismiss and Compel
Arbitration or Stay Case (Document No. 5), Defendant Yancey, LLC’s Second Motion to
Dismiss and Compel Arbitration or Stay Case (Defendant’s “Second Motion,” Document No.
15), Plaintiff’s Motion to Strike Defendant’s Second Motion and Response (Document No. 16),
Defendant Yancey, LLC’s Response to Plaintiff’s Motion to Strike (Document No. 19) and
Defendant Yancey, LLC’s Motion for Sanctions (Document No. 20). These documents were
referred to Judge Stacy, United States Magistrate Judge. Judge Stacy filed a Memorandum and
Recommendation on December 7, 2015 (Document No. 26), recommending that Defendant
Yancey, LLC’s Second Motion (Document No. 15) be granted, and that Defendant Yancey,
LLC’s Motion for Sanctions (Document No. 20) be denied. As described below, the Court will
adopt the findings of the Magistrate Judge. The Court also finds that Plaintiff’s Motion to Strike
(Document No. 16) is denied.
No party has objected to the findings of the Magistrate Judge; therefore the Court will
review the Memorandum and Recommendation of the Magistrate Judge under a “clearly
erroneous, abuse of discretion and contrary to law” standard. U.S. v. Wilson, 864 F.2d 1219,
1/2

1221 (5th Cir. 1989). The Court finds that the Magistrate Judge’s Memorandum and
Recommendation are not clearly erroneous or contrary to law.
In her Motion to Strike, Plaintiff states that Yancey, LLC’s Second Motion was not
timely filed (Document No. 16 at 1). However, the Court agrees with Defendant that, pursuant to
Fed. R. Civ. P. 15(a)(3), Yancey, LLC had 14 days to respond to Plaintiff’s Amended Petition
(Document No. 19 at 3). Plaintiff’s Amended Petition (Document No. 12) was filed on July 22,
2015, and Yancey, LLC replied fourteen days later, on August 5, 2015. Therefore Plaintiff’s
Motion to Strike fails.
Having considered all applicable motions and the evidence in support thereof, the
Magistrate Judge’s Memorandum and Recommendation, the record of the case, and all
applicable law, the Court adopts the Magistrate Judge’s Memorandum and Recommendation as
its own and
ORDERS that Defendant Yancey, LLC’s Second Motion to Dismiss and Compel
Arbitration (Document No. 15) is GRANTED and Plaintiff’s claims against Defendant Yancey,
LLC are DISMISSED from this suit without prejudice, in favor of being asserted and pursued in
arbitration pursuant to the terms for such in the Purchase Order. The Court also
ORDERS that Defendant Yancey, LLC’s Motion for Sanctions (Document No. 20) is
DENIED and
ORDERS that Plaintiff’s Motion to Strike (Document No. 16) is DENIED.
SIGNED at Houston, Texas, this 5th day of January, 2016.

___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

2/2