Click-to-Call Technologies v. AT&T Inc. et al

Filing 217

REPORT AND RECOMMENDATIONS re 212 Motion to exclude, filed by YELLOWPAGES.COM LLC, Ingenio, Inc., Ether, 194 Motion for Summary Judgment, filed by YELLOWPAGES.COM LLC, Ingenio, Inc., Ether. Signed by Judge Susan Hightower. (dm)

Case 1:12-cv-00465-LY Document 217 Filed 08/04/21 Page 1 of 13

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
§
§
§
v.
§
§
INGENIO, INC.; THRYV, INC.; ETHER, a §
division of INGENIO, INC.; and INGENIO,
§
INC. d/b/a KEEN,
§
Defendants
§
CLICK-TO-CALL TECHNOLOGIES LP,
Plaintiff

Case No. 1:12-cv-00465-LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE

Before the Court are Defendants’ Motion for Summary Judgment of Invalidity, filed
October 20, 2020 (Dkt. 194); Plaintiff Click-to-Call’s Response to Defendants’ Motion for
Summary Judgment, filed November 10, 2020 (Dkt. 195); Reply in Support of Defendants’ Motion
for Summary Judgment of Invalidity, filed November 24, 2020 (Dkt. 198); Plaintiff Click-to-Call’s
Sur-reply in Opposition to Defendants’ Motion for Summary Judgment, filed December 4, 2020
(Dkt. 205); Defendant Thryv, Inc.’s Motion to Exclude Certain Testimony and Opinions of
Dr. Vijay K. Madisetti and Brief in Support, filed March 26, 2021 (Dkt. 212); and Plaintiff Clickto-Call’s Response to Defendants’ Motion to Exclude Certain Testimony and Opinions of
Dr. Vijay K. Madisetti, filed April 2, 2021 (Dkt. 214). On April 6, 2021, the District Court referred
the motions to the undersigned Magistrate Judge for Report and Recommendation, pursuant to
28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72, and Rule 1(d) of Appendix C of the
Local Rules of the United States District Court for the Western District of Texas. Dkt. 215.

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I.

Introduction

Plaintiff Click-to-Call Technologies, LP (Click-to-Call) owns U.S. Patent No. 5,818,836 (the
‘836 patent), entitled “Method and Apparatus for Anonymous Voice Communication Using an
Online Data Service.” Dkt. 194-7 at 2. The patent covers a system and method for establishing
anonymous telephone communications over the internet. Id.; Dkt. 194-3 at 4. On May 29, 2012,
Click-to-Call filed three infringement suits against Defendants Ingenio, Inc.; Thryv, Inc. (Thryv);
Ether, a division of Ingenio, Inc.; Ingenio, Inc. d/b/a Keen (collectively, Defendants); and others.1
Defendants assert invalidity as an affirmative defense. Dkt. 62 at 5.
Defendants now move for summary judgment under Federal Rule of Civil Procedure 56.
Defendants also ask the Court to exclude the testimony of Plaintiff’s expert Dr. Vijay Madisetti on
the basis that his opinions are legal opinions that embrace ultimate issues of law.
II.

Background

Click-to-Call’s ‘836 Patent has a lengthy history before the U.S. Patent and Trademark Office
(PTO) and this Court. In 2008, the PTO issued an Ex Parte Reexamination Certificate cancelling
six of the patent’s original claims, amending fifteen claims, and adding nine new claims. Dkt. 88-5
at 4; Dkt. 194-7 at 24-26.
In May 2013, Defendants, along with then co-defendant Oracle Corporation, petitioned the
PTO’s Patent Trial and Appeal Board (the PTAB or Board) to institute inter partes review (IPR)
of certain claims of the ‘836 patent. Dkt. 194-1. Defendants asserted that the claims were invalid
as anticipated by prior art, including U.S. Patent No. 5,991,394 (the Dezonno patent). Id. at 19;
Dkt. 194-6.

While this action was stayed, mergers and a corporate name change altered the parties’ names. Dkt. 188.
The other two cases were dismissed with prejudice pursuant to stipulation. No. 1:12-cv-468-LY; No. 1:12cv-469-SS.
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In August 2013, the Court issued a Consolidated Markman Order construing the claim terms
under the “ordinary-and-customary-meaning” standard. Dkt. 137. The Court then ordered Clickto-Call to narrow its case to eight claims. Dkt. 138 ¶ 1. On October 11, 2013, Click-to-Call selected
claims 1, 2, 8, 12, 13, 16, 26, and 27 for trial. Dkt. 139. On October 30, 2013, the PTAB granted
Thryv’s petition for IPR of seven of these claims – all but claim 27 – along with six others,2 based
on the “reasonable likelihood” that Thryv would prevail in establishing the claims as unpatentable.
Dkt. 194-2 at 3. The Court then stayed this action pending the outcome of the IPR. Dkt. 147. The
Court noted that only one claim – that is, claim 27 – would remain in the District Court action
should Defendants be successful in the IPR. Id. at 4.
The PTAB conducted an IPR trial and issued its Final Written Decision based on the “broadest
reasonable interpretation” standard. Dkt. 194-3 at 9. The PTAB held that claims 1, 2, 8, 12, 13, 15,
16, 19, 22, 23, 26, 29, and 30 were invalid due to the Dezonno patent alone or in combination with
other prior art. Id. at 27-28. Click-to-Call appealed the PTAB’s decision to the Federal Circuit,
arguing that the IPR should not have been instituted because it was time-barred. Click-to-Call
Techs., LP v. Ingenio, Inc., 899 F.3d 1321 (Fed. Cir. 2018). The Federal Circuit ordered the PTAB
to dismiss the IPR. Id. at 1341-42. The United States Supreme Court granted certiorari, and on
April 20, 2020, ruled that the PTAB’s decision to institute was not appealable. Thryv, Inc. v. Clickto-Call Techs., LP, 140 S. Ct. 1367, 1377 (2020). The PTAB’s Final Written Decision on the ‘836
patent therefore became final.
In a Joint Status Report filed July 24, 2020, Click-to-Call stated that it intended to litigate the
asserted claims that it contends were not affected by the IPR proceeding: claims 24, 27, and 28.
Dkt. 184 at 1. The District Court lifted the stay of this case on August 13, 2020. Dkt. 189.

2

The six additional claims are 15, 19, 22, 23, 29, and 30.

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III.

Motion for Summary Judgment

A. Legal Standard
Summary judgment shall be rendered when the pleadings, the discovery and disclosure
materials, and any affidavits on file show that there is no genuine dispute as to any material fact
and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir.
2007). A dispute regarding a material fact is “genuine” if the evidence is such that a reasonable
jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to
view all inferences drawn from the factual record in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d
at 508. A court “may not make credibility determinations or weigh the evidence” in ruling on a
motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000); see also Anderson, 477 U.S. at 254-55.
Once the moving party has made an initial showing that there is no evidence to support the
nonmoving party’s case, the party opposing the motion must come forward with competent
summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586.
Mere conclusory allegations are not competent summary judgment evidence and thus are
insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr.,
476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated assertions, improbable inferences, and
unsupported speculation also are not competent summary judgment evidence. Id. The party
opposing summary judgment is required to identify specific evidence in the record and to articulate
the precise manner in which that evidence supports its claim. Adams v. Travelers Indem. Co. of

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Conn., 465 F.3d 156, 164 (5th Cir. 2006). If the nonmoving party fails to make a showing sufficient
to establish the existence of an element essential to its case and on which it will bear the burden of
proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.
B. Summary Judgment Record
Defendants submitted the following summary judgment evidence:
1. Defendants’ Petition for Inter Partes Review (Exh. A, Dkt. 194-1);
2. PTAB Institution of Inter Partes Review (Exh. B, Dkt. 194-2);
3. PTAB Final Written Decision (Exh. C, Dkt. 194-3);
4. Click-to-Call’s Infringement Contentions as to Yellowpages.com (Exh. D, Dkt. 194-4);
5. Click-to-Call’s Infringement Contentions as to Keen.com (Exh. E, Dkt. 194-5);
6. A copy of the Dezonno patent (Exh. F, Dkt. 194-6); and
7. A copy of the ‘836 patent (Exh. G, Dkt. 194-7).
Plaintiff submitted as summary judgment evidence the Declaration of Daniel J. Shih (Dkt. 196)
and its attached exhibits, comprising IPR Declarations from five individuals:
1. Stephen C. DuVal (Exh. 1, Dkt. 196-1 through 196-5);
2. Robert Shinn (Exh. 2, Dkt. 196-6);
3. Simon Clement (Exh. 3, Dkt. 196-7);
4. Doug Martin (Exh. 4, Dkt. 196-8); and
5. Ben J. Yorks (Exh. 5, Dkts. 196-9 and 196-10).
C. Analysis
Defendants argue that the Court should grant summary judgment because (1) Click-to-Call is
collaterally estopped from relitigating the PTAB’s invalidity decision on the IPR claims, and
(2) there is no genuine issue of material fact that Click-to-Call’s sole remaining claim in this
litigation, claim 27, is invalid as anticipated by the Dezonno patent. Click-to-Call disputes that the
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PTAB’s invalidity decision has preclusive effect in this litigation. Click-to-Call also argues that
Defendants are estopped from asserting the Dezonno patent against claim 27 as well as claims 24
and 28, which it contends also remain in this action.
1. Issue Preclusion Relating to IPR Proceeding
Defendants first argue that Click-to-Call is collaterally estopped from relitigating the PTAB’s
invalidity decision on the IPR claims. Click-to-Call responds that the different standards for claim
construction applied by the PTAB and the district court prevents the Final Written Decision from
having preclusive effect. Dkt. 195 at 11. Specifically, Click-to-Call contends that the PTAB’s
application of the “broadest reasonable interpretation” standard resulted in variations in claim
construction that could affect the validity determination. Dkt. 195 at 10-15.
Issue preclusion “promotes the interests of judicial economy by treating specific issues of fact
or law that are validly and necessarily determined between two parties as final and conclusive.”
United States v. Shanbaum, 10 F.3d 305, 311 (5th Cir. 1994). Preclusion often applies where a
single issue is before a court and an administrative agency. B & B Hardware, Inc. v. Hargis Indus.,
Inc., 575 U.S. 138, 148 (2015). The Federal Circuit has held that “an affirmance of an invalidity
finding, whether from a district court or the Board, has a collateral estoppel effect on all pending
or co-pending actions.” XY, LLC v. Trans Ova Genetics, 890 F.3d 1282, 1294 (Fed. Cir. 2018).
“When a claim is invalidated at the PTAB, and that decision is made final, the cancellation of the
claim carries preclusive effect in a co-pending litigation because the cause of action is
extinguished.” Papst Licensing GmbH & Co., KG v. Samsung Elecs. Co., Ltd., 403 F. Supp. 3d
571, 601-02 (E.D. Tex. 2019).
In patent infringement actions, the Federal Circuit applies the law of the regional circuit to
procedural questions involving issue preclusion. Soverain Software LLC v. Victoria’s Secret

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Direct Brand Mgmt., LLC, 778 F.3d 1311, 1314 (Fed. Cir. 2015). In the Fifth Circuit, issue
preclusion applies if four conditions are met:
1. The issue under consideration in a subsequent action must be identical to the issue
litigated in a prior action.
2. The issue must have been fully and vigorously litigated in the prior action.
3. The issue must have been necessary to support the judgment in the prior case.
4. There must be no special circumstance that would render preclusion inappropriate
or unfair.
State Farm Mut. Auto. Ins. Co. v. LogistiCare Sols., LLC, 751 F.3d 684, 689 (5th Cir. 2014).
The conditions for issue preclusion are satisfied in this case. First, the validity of certain claims
of the ‘836 patent was litigated in the IPR, which is identical to the issue before the Court. Second,
the parties fully and vigorously litigated the validity of the claims in the IPR and subsequent
appeals. The PTAB conducted a full IPR trial on the merits of the parties’ contentions that resulted
in a Final Written Decision. Dkt. 194-3. Click-to-Call then appealed the PTAB’s decision to the
Federal Circuit, which issued a decision that Defendants challenged before the Supreme Court.
Third, the validity of the claims of the ‘836 patent was the sole inquiry in the IPR and therefore
was necessary to support the PTAB’s Final Written Decision.
Finally, Click-to-Call has not shown any special circumstance in this litigation that would
render issue preclusion inappropriate or unfair. See Fresenius USA, Inc. v. Baxter Int’l, Inc., 721
F.3d 1330, 1344 (Fed. Cir. 2013) (stating that “there is no basis for distinguishing between the
effects of a final, affirmed court decision determining invalidity and a final, affirmed PTO decision
determining invalidity on a pending litigation”); Cisco Sys., Inc. v. Capella Photonics, Inc.,
No. 20-cv-01858-EMC, 2020 WL 4923697, at *4 (N.D. Cal. Aug. 21, 2020) (stating that “logic
and precedent suggest that the PTAB determination should be given preclusive effect”);
Intellectual Ventures I, LLC v. Lenovo Grp. Ltd., 370 F. Supp. 3d 251, 257 (D. Mass. 2019)
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(finding that different claim construction standard in IPR did not prevent issue preclusion in a
district court action because the patent holder may no longer assert a claim in any forum once the
PTAB finds the claim unpatentable).
2. Remaining Claims
Having found that Click-to-Call is collaterally estopped from relitigating the PTAB’s invalidity
determination on the IPR claims, the Court must determine what claims remain for trial. Click-toCall asserts that claims 24, 27, and 28 were not part of the IPR and therefore may be asserted
against Defendants. Defendants contend that only claim 27 remains.
Courts generally refuse to reopen what has been decided previously. Coliseum Square Ass’n,
Inc. v. Jackson, 465 F.3d 215, 246 (5th Cir. 2006) (citing Messinger v. Anderson, 225 U.S. 436,
443 (1912)). Pursuant to the Court’s order, Click-to-Call selected eight claims of the ‘836 patent
for trial. Dkt. 138 ¶ 1; Dkt. 139. Claim 27 is the only claim Click-to-Call selected for trial not
invalidated during the IPR. Id.; Dkt. 194-2 at 2. Accordingly, claim 27 is the only claim still at
issue in this action.
Click-to-Call requests leave to update its selections should the Court find that only claim 27
remains in this litigation. Dkt. 195 at 19. Because Click-to-Call has not provided good cause for
leave to amend nearly eight years after its original selection of claims for trial, the undersigned
recommends that Click-to-Call’s request for leave to amend its Notice of Claims Selected for Trial
be denied.
3. Validity
Next, Defendants argue that they are entitled to summary judgment because (1) there is no
genuine dispute that the Dezonno patent anticipates claim 27, rendering it invalid, and (2) Clickto-Call is collaterally estopped from asserting the dependent claims of claims 1 and 12. Click-to-

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Call contends that Defendants are precluded from challenging the validity of claim 27 in this action
because the PTAB did not institute IPR on that claim.
Patents are presumed to be valid. Ruiz v. A.B. Chance Co., 234 F.3d 654, 662 (Fed. Cir. 2000).
The party challenging the validity of a patent bears the burden of proving the factual elements of
invalidity by clear and convincing evidence. Pfizer v. Apotex, Inc., 480 F.3d 1348, 1359 (Fed. Cir.
2007). Although the burden of showing validity never shifts to the patentee, a patentee “would be
well advised to introduce evidence sufficient to rebut that of the challenger” once a prima facie
case for invalidity is made. Id. at 1360 (citing Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806
F.2d 1565, 1570 (Fed. Cir. 1986)).
Anticipation under § 102 is a two-step inquiry. Medichem, S.A. v. Rolabo, S.L., 353 F.3d 928,
933 (Fed. Cir. 2003). The first step is claim construction. Id.; see also Amazon.com, Inc. v.
Barnesandnoble.com, Inc., 239 F.3d 1343, 1351 (Fed. Cir. 2001) (stating that “[a] claim must be
construed before determining its validity just as it is first construed before deciding infringement”)
(quoting Markman v. Westview Instruments, Inc., 52 F.3d 967, 996 n.7 (Fed. Cir. 1995)). The
second step is a comparison of the properly construed claim to the prior art. Medichem, 353 F.3d
at 933.
To anticipate a claim, “a single prior art reference must expressly or inherently disclose each
claim limitation.” Finisar Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1334 (Fed. Cir. 2008). A
claim limitation is inherently disclosed if it is necessarily present in the single anticipating
reference. Schering Corp. v. Geneva Pharms., Inc., 339 F.3d 1373, 1377 (Fed. Cir. 2003). If a
“claimed invention was patented, described in a printed publication, or in public use, on sale, or
otherwise available to the public before the effective filing date of the claimed invention,” prior

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art anticipates the patent. 35 U.S.C. § 102(a)(1). Judgment as a matter of law is appropriate when
no reasonable juror could dispute the clear text of a prior art reference. Finisar, 523 F.3d at 1338.
Claim 27 recites the “method of claim 1, wherein the second information comprises an
advertisement.” Dkt. 194-7 at 26. Claim 1 recites, in part,
A method for creating a voice connection over a circuit switched
network between a first party and a second party using an on-line
data service to initiate the connection, comprising the steps of:
(a) establishing an electronic connection between the first party
and the second party through the online data service between
the first party and the second party . . . wherein the
information publically [sic] accessible over the Internet is
suitable for presentation within a graphical user interface of
the data terminal of the first party, wherein the information
publicly accessible over the internet includes:
(1) first information characterizing the second party,
(2) second information representing a communication from
the second party . . . .
Id. at 25. Because claim 27 depends on claim 1, it includes the limitations of claim 1. In re Lange,
644 F.2d 856, 862 n.9 (C.C.P.A. 1981) (stating that “every dependent claim includes all limitations
of the independent claim”). As discussed above, the PTAB found claim 1 invalid as anticipated by
the Dezonno patent. Dkt. 194-3 at 27.
a. Claim Construction
In its Consolidated Markman Order, the Court construed “second information representing a
communication from a second party” in claim 1 to mean “a communication from a second party.”
Dkt. 137 at 8. Because “advertisement” is not a construed term, it is given its ordinary and
customary meaning. Ruckus Wireless v. Innovative Wireless Sols., LLC, 824 F.3d 999, 1002
(Fed. Cir. 2016). Claim 27 therefore requires a communication from a second party that is an
advertisement.

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Click-to-Call argues that “Dezonno uses the word ‘advertisement’ in a commercial sense, not
in the sense that the ‘836 Patent uses.” Dkt. 195 at 14. Click-to-Call fails to explain why the term
“advertisement” should not be given its ordinary meaning. “To act as its own lexicographer, a
patentee must clearly set forth a definition of the disputed claim term other than its plain and
ordinary meaning.” Aventis Pharma, S.A. v. Hospira, Inc., 675 F.3d 1324, 1330 (Fed. Cir. 2012)
(citations omitted). Click-to-Call did not include “advertisement” in the claim terms to be
construed by the Court. Dkt. 137. Nor do Click-to-Call’s infringement contentions contain a
narrowed definition of “advertisement” excluding commercial ventures. See Dkt. 194-4 at 27;
Dkt. 194-5 at 30. Consequently, there is no support for Click-to-Call’s argument that the Court
should apply a narrowed definition of “advertisement” different from its ordinary meaning. See
Aventis, 675 F.3d at 1330 (stating that a patentee must clearly express an intent to redefine a term’s
plain and ordinary meaning); Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1330
(Fed. Cir. 2003) (“It is axiomatic that claims are construed the same way for both invalidity and
infringement.”).
b. Comparison to Prior Art
Figure 2 of the Dezonno patent teaches “an exemplary home page used for advertising by, for
example, a business on the Internet.” Dkt. 194-6 at 6. The abstract states that “the computer user
views advertisements of the business’ products or services on the Internet via customized home
pages. When the user wishes to order a product or ask additional questions about a product, the
user activates a ‘call me’ button.” Id. at 2. Dezonno’s specification also teaches advertisements:
•

“Computer users are therefore able to quickly and easily review a
multitude of products and services which are offered by businesses
advertising on the Internet.” Id. at 5.

•

“[T]he success of direct response advertising depends greatly upon
which the ease in which a potential customer can contact those
selling the products or services.” Id.
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•

“It is a feature of the present invention to provide a method for a
computer user to easily and conveniently have a business
advertising on a computer network, such as the Internet, call the
computer user back over the telephone.” Id. at 6.

•

“Businesses on the Internet advertise on the World Wide Web using
home pages. As is well known, home pages may include pictures of
a product, descriptions of the product and a listing of a telephone
number to call to ask questions or to order the product.” Id.

Defendants have shown that Dezonno clearly anticipates claim 27’s advertisement limitation.
To avoid the Dezonno patent as prior art, Click-to-Call attempts re-litigate the PTAB’s final
decision that independent claims 1 and 12 were invalid. Dkt. 195 at 5-13. As discussed above,
however, Click-to-Call is estopped from challenged the PTAB’s Final Written Decision on the
IPR claims.
Click-to-Call also argues that Defendants are estopped from asserting the Dezonno patent as
prior art against claim 27 due to the PTAB’s refusal to institute IPR on that claim. Id. at 15-18.
Click-to-Call misapplies the conditions for issue preclusion. Because the PTAB did not grant inter
partes review to claim 27, the issue was not litigated in the IPR, and Defendants are free to assert
that the Dezonno patent anticipates claim 27 in this litigation. Shanbaum, 10 F. 3d at 311.
Considering the totality of the evidence, the Magistrate Court finds that no reasonable juror
could find that the Dezonno patent does not anticipate claim 27 of the ‘836 patent. Consequently,
there is no triable issue of fact regarding the Dezonno patent’s anticipation of claim 27, and the
Court recommends that Defendants’ Motion for Summary Judgment on Invalidity as to claim 27
be granted.
IV.

Motion to Exclude Expert Testimony

Because the Court recommends a grant of summary judgment to Defendants, the Court further
recommends that the District Court dismiss as moot Defendant Thryv, Inc.’s Motion to Exclude
Certain Testimony and Opinions of Dr. Vijay K. Madisetti (Dkt. 212).
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V.

Recommendation

Based on the foregoing, the undersigned Magistrate Judge RECOMMENDS that the District
Court GRANT Defendants’ Motion for Summary Judgment of Invalidity (Dkt. 194) and enter
judgment for Defendants.
The undersigned FURTHER RECOMMENDS that Defendant Thryv, Inc.’s Motion to
Exclude Certain Testimony and Opinions of Dr. Vijay Madisetti and Brief in Support (Dkt. 212)
be DISMISSED AS MOOT.
IT IS FURTHER ORDERED that this case be removed from the Magistrate Court’s docket
and returned to the docket of the Honorable Lee Yeakel.
VI.

Warnings

The parties may file objections to this Report and Recommendation. A party filing objections
must specifically identify those findings or recommendations to which objections are being made.
The District Court need not consider frivolous, conclusive, or general objections. See Battle v.
United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written
objections to the proposed findings and recommendations contained in this Report within fourteen
(14) days after the party is served with a copy of the Report shall bar that party from de novo
review by the District Court of the proposed findings and recommendations in the Report and,
except on grounds of plain error, shall bar the party from appellate review of unobjected-to
proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C.
§ 636(b)(1)(c); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
SIGNED on August 4, 2021.

SUSAN HIGHTOWER
UNITED STATES MAGISTRATE JUDGE
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