Lyle v. 24 Hour Fitness USA, Inc. et al

Filing 58

REPORT AND RECOMMENDATIONS re 45 Motion for Summary Judgment filed by 24 Hour Fitness USA, Inc.. Signed by Judge Andrew W. Austin. (ml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JADA LYLE, Individually and as Next
Friend of L.T., a Minor Child,
v.
24 HOUR FITNESS, USA, Inc.

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A-14-CV-300 LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE DAVID EZRA
UNITED STATES DISTRICT JUDGE
Before the Court are Defendant’s Motion for Summary Judgment, Dkt. No. 45, Plaintiff’s

Response, Dkt. No. 49, and Defendant’s Reply, Dkt. No. 51. The undersigned submits this Report
and Recommendation to the District Judge 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, Local Rules for the Assignment of Duties to United States
Magistrate Judges.
I.

BACKGROUND

This is a personal injury suit that stems from an accident that occurred in the Kids’ Club play
area of a 24 Hour Fitness, USA, Inc. gym. On June 28, 2013, Jada Lyle, the Plaintiff in this case,
dropped her daughter, L.T., a four year old minor, off to play at the Kids’ Club while she exercised.
See Dkt. No. 46 at 27. The Kids’ Club provides various activities to keep children entertained,
including a television, video games, toys, puzzles, and an indoor playscape structure. Id. at 25-26.
The Kids’ Club has staff on hand to supervise the children while they play. Id. On the day of the
accident, L.T. was playing on the playscape when she fell. Id. at 29. As a result of the fall, L.T.

suffered a fractured elbow, which eventually required substantial medical treatment. Dkt. No. 15
at 3.
II. STANDARD OF REVIEW
Summary judgment shall be rendered when the pleadings, the discovery and disclosure
materials on file, and any affidavits 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. Further, 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); 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
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 his claim. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir.
2006). Rule 56 does not impose a duty on the court to “sift through the record in search of evidence”
to support the nonmovant's opposition to the motion for summary judgment. Id. “Only disputes
over facts that might affect the outcome of the suit under the governing laws will properly preclude
the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues that are “irrelevant
and unnecessary” will not be considered by a court in ruling on a summary judgment motion. Id. 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.
III. ANALYSIS
Lyle brings three claims as next friend for L.T.: negligence, negligent supervision, and
negligent training.1 In reviewing Lyle's claims, the court applies Texas law. See Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 79-80 (1938).
A.

Negligence
Lyle alleges that 24 Hour Fitness breached its duty of ordinary care to L.T. “by failing to

supervise and/or protect” her, “and/or provide a safe environment while in [its] care, custody, and
control.” Dkt. No. 15 at 3. Lyle contends that this breach of 24 Hour Fitness’s duty proximately
caused the injuries to L.T. Id.
24 Hour Fitness focuses its motion on a single argument. It contends that Lyle cannot show
any evidence of causation, based on the claim that L.T. was not doing anything prior to the fall that
warranted 24 Hour Fitness’s intervention, and that, absent literally following L.T. around the play
1

Lyle originally brought a number of other claims, but in her response to 24 Hour Fitness’s
motion, she abandons the claims brought in her individual capacity, her claim for premises defect,
her claim for negligent hiring and retention, and her claim of gross negligence.

area, nothing could have prevented the fall. 24 Hour Fitness bases its argument on the testimony of
Jada Lyle, who testified about what she understood caused the injury, based on what L.T. told her.
In summary, she stated that at the time L.T. was injured she was playing tag with several other
children. Dkt. No. 46 at 35. L.T. ran up a set of stairs and into a tube on the playscape. Id. at 2930, 37. L.T. crawled through the tube, but when she got to the other side she lost her balance, fell,
rolled down another set of stairs and landed on the floor. Id. Based on this testimony, 24 Hour
Fitness argues that L.T.’s loss of balance was sudden and unforeseeable. It argues that even if the
Kids’ Club employees had been closely supervising L.T., such supervision would not have prevented
such an unpredictable accident. Indeed, 24 Hour Fitness argues, even if an employee was standing
directly outside of the playscape it would have been impossible for the employee to catch L.T. or
stop the fall, as the stairs are apparently inside the playscape, which is surrounded by netting.2 24
Hour Fitness also argues that there is no evidence that anything L.T. or the other children were doing
immediately before the accident was unsafe, improper, or warranted intervention by the Kids’ Club
employees. For its legal support of this argument, 24 Hour Fitness relies on a Fifth Circuit case
applying Louisiana law, which notes that the standard of care for childcare does not require hypervigilance. Cole v. Knowledge Learning Corp., 416 Fed. Appx. 437 (5th Cir. 2011).
Lyle does not dispute 24 Hour Fitness’s recitation of the evidence. Instead, she argues that
there is a fact dispute regarding whether the Kids’ Club employees’ negligence was a cause-in-fact
of L.T.’s injury. Specifically, Lyle argues that shortly before L.T.’s injury, Kids’ Club employees
engaged in a level of supervision that, had they maintained it, would have prevented L.T.’s fall. Lyle

2

The briefing by both parties is disappointing. One notable absence from either party’s filings
is a photograph of the playscape, or a copy of the video of that area (which is discussed extensively
in the deposition testimony). The descriptions in the text are the Court’s compilation of how the
various witnesses described the playscape in their depositions.

notes that one of the Kids’ Club employees, Mary Bridge, testified that only “a few minutes” before
L.T. was injured Bridge and another attendant, Alyssa Alvarez, had warned L.T. to stop climbing
up the netting around the playscape in a way they viewed as dangerous. Dkt. No. 50-1 at 16.3 At
that time, they got up from their chairs, walked across the room and admonished L.T. Id. Bridge
and Alvarez then turned away from L.T. Id. at 21. L.T. fell shortly after this. Id. at 16. Lyle argues
that had Bridge and Alvarez supervised L.T.’s play in the tube the way they did her play on the net,
the accident would not have occurred. At the very least, Lyle argues, reasonable jurors could
disagree as to whether L.T.’s injury would have occurred under better supervision. Lyle also argues
that there is a genuine issue of material fact regarding whether the accident was foreseeable. As
Bridge’s testimony demonstrates, Kids’ Club employees were aware that some forms of play were
dangerous and could result in injury. Finally, Lyle argues that proximate causation is always a
question of fact.
Inexplicably, both parties fail to discuss a crucial part of the evidence. 24 Hour Fitness’s
motion is predicated on a version of the facts that is squarely at odds with the testimony of its own
employee, Mary Bridge. As noted, 24 Hour Fitness claims that L.T. was injured after she climbed
up the stairs on one side of the playscape, crawled through a tube, lost her balance, and fell down the
stairs on the other side. Dkt. No. 46 at 29-30, 35, 37. This version of the facts is based, ironically,
on the testimony of the Plaintiff, Jada Lyle. But Lyle’s testimony is not based on her own memory
of L.T.’s injury, as she was not there to witness it. Dkt. No. 46 at 29. Instead, she relayed the story
four year old L.T. told Lyle about how she was injured. Id. Leaving aside whether a four year old’s
statement to her mother is admissible (as no one challenges it), Lyle’s account directly contradicts
3

Some of the deposition transcripts contain four transcript pages per sheet. The page citations
to these deposition are to the page as numbered by the court reporter, not to the CM/ECF page
number.

the testimony of Bridge, one of the two Kids’ Club employees on duty when L.T. was hurt. As
mentioned briefly above, Bridge testified that several of the children in the Kids’ Club were hanging
on netting that made up the walls of the playscape. But Lyle cites this testimony to argue only that
it demonstrated the employees had the ability to control the manner in which the children used the
equipment, showing that a lack of adequate supervision could be a cause-in-fact of the injury. Dkt.
No. 49 at 3-5. What Lyle’s response fails to note is that Bridge goes further and testifies about what
L.T. told her caused the injury, which was not a fall from the top of the stairs:
Q

Now, when—can you describe for us how [L.T.] was hanging from the net?

A

Hanging.

Q

From what net?

A

Fingers.

Q

Yeah.

A.

There’s—when you walk into the Kids’ Club, it’s just a big, giant playscape, and
there's two platforms you crawl onto to get up and into the slide and the—the little
tunnel you go into. Well, above the two little platforms, there’s netting; she had
hopped up on that and was hanging. That’s how she fell.

Q

How do you know that’s how she fell?

A

Because she told me.

Q

Okay.

A

And so did the other kids.

Q

So let me—I think we’ve got some photos here. Yeah.
(Exhibit No. 4 marked)

Q

(BY MR. GABBAY) So let me show you what I’ve marked for identification as
Exhibit 4. Is that the space maze that we’re talking about?

A

Uh-huh.

Q

Yes?

A

Yes.

Q

Okay. Can you–do you—do you see on there where [L.T.] told you that she was
hanging?

A

We were right here. She was on these platforms.

Q

Okay.

A

There’s netting right here.

Q

Yes.

A

And the pole right back here is probably where she said—she said that she had fallen
into a pole, so. And she was right here when she got up, so she—she said she had
jumped, hung on the netting, and fallen.

Dkt. No. 50-1 at 51-52.4 As relayed by Bridge, the two employees told the children to stop playing
on the netting, “and immediately after we turned around, she [L.T.] got on the netting.” Id. at 4.
Bridge also testified that L.T. did not fall “right after” but that there were “a few minutes between
play, and then you heard her crying and she said that she had fallen.” Id. at 5.
The other Kids’ Club employee working on the day in question—Alyssa Alvarez—provided
more ambiguous testimony. For example, she stated that she did not remember whether she heard
Bridge give any warnings to L.T. about playing on the netting, and testified that she did not know
what caused the accident because she did not see it. Dkt. No. 50-2 at 22-23, 41-42. But later in her
testimony she spontaneously brought up that she had admonished L.T. not to hang on the netting:

4

As with the comments Lyle testified L.T. made to her about the fall, no one has objected to
the testimony cited in the text, in which Bridge testifies what L.T. told her immediately after the fall.
It appears to plainly be hearsay, but also may be an excited utterance, and thus within an exception.
See FED. R. EVID. 803(2). Regardless, the general rule in the Fifth Circuit is that unobjected-to
hearsay may be considered for such probative value as it may have. Whitehead v. Food Max of
Mississippi, Inc., 163 F.3d 265, 275 (5th Cir. 1998).

Q

And if they—if you have a 4-year-old that may not follow the rules one time and you
have to tell them again, that’s not an unreasonable thing to ask of a caregiver, right,
to repeat the rule?

A

No. If you’re asking towards this case, I can say that I have asked [L.T.] multiple
times not to hang on that maze. It—not just her, but multiple kids that she plays
with. So. . .

Q

Why did—we hadn’t talked about [L.T.] hanging on the maze. What are—what are
you talking about?

A

A bunch of the children will play and not follow the rules, and so there has been
times where we’ve reminded them, “That’s not how you play.”

Q

Do you believe that [L.T.] was hanging on the maze and that’s how she got hurt?

A

No, because I didn’t see it.

Id. at 80. Alvarez later admitted that when she and Bridge spoke to Lyle about L.T. getting injured,
she made a comment to Lyle about L.T.’s propensity to swing on the netting. Id. at 132.
As noted, the sole argument on this motion for summary judgment is based on whether 24
Hour Fitness’s employees’ alleged negligence in not adequately supervising the children in the Kids’
Club caused L.T.’s injury. But the parties miss a glaringly obvious fact issue: no one knows for
certain how L.T. was injured. While Lyle cites Bridge’s testimony about warning L.T. to stay off
the netting in her response, she does so only to demonstrate that the employees were capable of a
greater degree of supervision at the time of L.T.’s fall. She does not challenge 24 Hour Fitness’s
account of the injury which is, again, drawn from her own testimony. But whether L.T. was hanging
from a net, or instead simply lost her balance after crawling through a tube, could make a difference
in the Court’s proximate cause analysis. Both Bridge and Alvarez noted that they were aware of the
dangers of children climbing on the netting, and both testified that they were aware that L.T.
regularly did so, and had to be told to stop. They also testified that telling children not to climb on
the netting was an effective way to get them to stop. Dkt. No. 50-1 at 28-29.

That neither party brought the discrepancy in this evidence to the Court’s attention is
troubling.5 The Court is not under a duty to “sift through the record in search of evidence.” Adams
v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). Yet the parties’ insufficient
briefing forced it to do just that. Because there is a fact issue regarding how L.T. was injured,
summary judgment on the question of causation is inappropriate at this time.
B.

Negligent Supervision and Training
The standard for negligent supervision and negligent training was well described by Judge

Yeakel in his order in this case on 24 Hour Fitness’s Motion to Exclude Opinions of Sherryll
Kraizer, Ph.D.:
The Texas Supreme Court has not “ruled definitively on the existence, elements, and
scope” of negligent retention, supervision, training, and hiring claims. Waffle House,
Inc. v. Williams, 313 S.W.3d 796, 804 n. 27 (Tex. 2010). However, the supreme court
has stated: “In a negligent-hiring or negligent-entrustment claim, a plaintiff must
show that the risk that caused the entrustment or hiring to be negligent also
proximately caused plaintiff’s injuries.” TXI Transp. Co. v. Hughes, 306 S.W.3d 230,
240 (Tex. 2010). Texas appellate courts hold that the elements of an action for
negligently hiring, supervising, training, or retaining an employee are: (1) the
employer owed the plaintiff a legal duty to hire, supervise, train, or retain competent
employees; (2) the employer breached that duty; and (3) the breach proximately
caused the plaintiffs injury. See e.g., Morrone v. Prestonwood ChristianAcademy,
215 S.W.3d 575, 585 (Tex. App.Eastland 2007, pet. denied). Claims against an
employer for negligently hiring, supervising, training, or retaining an employee are
based on direct liability, not on vicarious liability. See Soon Phat, L.P, v. Alvarado,
396 S.W.3d 78, 100-01 (Tex. App.Houston [14th Dist.] 2013, pet. denied).
Dkt. No. 52 at 2.
As noted, Lyle has dropped all claims except those for ordinary negligence, negligent
supervision, and negligent training. Lyle’s negligence claim is based on a theory of respondeat

5

In its reply, 24 Hour Fitness incredibly claims that “it is undisputed that L.T.’s injury had
nothing to do with hanging on or falling off the netting.” Dkt. No. 51 at 2. Lyle may not have
disputed this account, but 24 Hour Fitness’s employee plainly did when she testified that is precisely
how L.T. was injured.

superior, as Bridge and Alvarez were acting within the course and scope of their employment at the
time of L.T.’s injury. In its answer to Lyle’s second amended complaint, 24 Hour Fitness admits that
at the time of the incident in question Bridge and Alvarez were acting within the course and scope
of their employment, thereby stipulating that it may be held vicariously liable if the employees
negligently caused L.T.’s injuries. Dkt. No. 16 at 4. Claims for negligent supervision and training
are “based on the employer’s own negligent conduct in creating an unreasonable risk of harm to
others.” Williams v. McCollister, 671 F. Supp. 2d 884, 888 (S.D. Tex. 2009) (citing Morris v. JTM
Materials, Inc., 78 S.W.3d 28, 49 (Tex.App.-Fort Worth 2002, no pet.); Estate of Arrington v.
Fields, 578 S.W.2d 173, 178 (Tex.Civ.App.-Tyler 1979, writ ref'd n.r.e.)).
Negligent training and supervision claims are thus alternative means to the same end: holding
an employer liable for the negligence of an employee. Texas courts have held that “in matters
involving only ordinary negligence, a direct liability claim (such as negligent hiring or entrustment)
and a claim resulting in vicarious liability under respondeat superior could be mutually exclusive
modes of recovery.” Id.
This occurs only when a plaintiff pleads ordinary negligence (versus gross
negligence) against an employer and employee, and the employer’s liability for its
employee’s negligent acts has been established through a stipulation of vicarious
liability. In other words, if vicarious liability is not contested, the employee’s
competence and the employer’s own negligence in hiring, failing to properly train,
or negligently supervising become irrelevant, as long as a plaintiff pleads ordinary
negligence.
Id. This is not the case when a plaintiff pleads ordinary negligence against the employee and gross
negligence against the employer, as those two claims are treated as distinct grounds of recovery, but
Lyle has dropped her gross negligence claim. Id. Thus, Lyle’s ordinary negligence claim makes her
claims of negligent supervision and training irrelevant.

The parties, however, fail to note this. So, out of an abundance of caution, the Court will also
address the substance of the issues that they actually have raised on these claims in the briefing. As
explained, summary judgment is warranted on both claims.
1.

Negligent Supervision
24 Hour Fitness argues that to be held liable for negligent supervision, its failure to properly

supervise Bridge and Alvarez must have been the cause-in-fact of L.T.’s injuries, and the injuries
must have been a foreseeable consequence of the improper supervision. Knight v. City Streets,
L.L.C., 167 S.W. 3d 580, 584 (Tex. App.–Houston 2005, no pet.). In Knight, the court held that an
employer was not liable for a plaintiff’s assault because there was no evidence (1) that the manager
was present during the assault; (2) that he had prior knowledge that the employees had a propensity
for aggression; (3) that he observed the assault; or (4) that he could have intervened to stop it from
happening. Here, 24 Hour Fitness’s manager testified about the ways in which the club supervised
its employees, including “employee monitoring,” surveillance video review and random checks, club
tours or walkthroughs, coaching, and reviews of feedback from employees. Dkt. No. 46 at 129-32,
133-134, 135. 24 Hour Fitness argues that Lyle has failed to demonstrate any evidence that it was
negligent in supervising the Kids’ Club staff.
Lyle contends that 24 Hour Fitness should have known that their employees were acting
negligently. Lyle bases her argument on her expert’s review of the video footage from the day L.T.
was injured. (The footage itself is not included as an exhibit.) While the video does not show the
actual accident, it contains footage of time after the fall, and apparently shows Bridge and Alvarez
with their backs to the children, looking at their cell phones, talking with each other, and ignoring
the children in their care to such an extent that an infant crawled away from the “toddler area” room
and into the playscape without their notice. Dkt. No. 50-3 at 27-28. A monitor showing the

surveillance video feed was stationed in the fitness club’s manager’s office. Id. Lyle argues that,
presuming that Bridge and Alvarez had shown a similar lack of interest in their duties prior to L.T.’s
injury, the manager should have been alerted that his employees were acting negligently and
intervened to correct their behavior. See, id. at 27-29. Lyle claims that had he done so, L.T. would
not have been injured.
24 Hour Fitness responds that Lyle has set the standard for supervision too high: in essence,
they argue, Lyle expects 24 Hour Fitness to constantly monitor its employees. This is, indeed, too
high a standard. More to the point, Lyle has not introduced any evidence that the actual supervision
24 Hour Fitness conducted of its employees on that day was a cause-in-fact of L.T.’s injury. As
such, summary judgment on this claim is warranted.
2.

Negligent Training
Finally, 24 Hour Fitness argues that there is no evidence that it breached a duty to train its

employees. It argues that Kids’ Club employees receive extensive formal training. Prior to
beginning work they endure a training program called “24 University,” which instructs them on the
care and supervision of children in the Kids’ Club. Dkt. No. 46 at 126-128. The Kids’ Club
employees then receive refresher training every one or two months, which is followed by a test about
the training manual. Id. at 146-147, 150-151. Alvarez testified that her supervisor went “through
the step by step of the day of what [she] should be doing inside the Kids’ Club.” Id. at 150-151.
Kids’ Club supervisors also advised employees on dealing with particular situations. Id. Supervisors
also corrected employee behavior that ran contrary to the training. Id. at 149. And in fact, Lyle’s
liability expert stated that she found no fault with the substance of 24 Hour Fitness’s training. Id.
at 121-122.

In response, Lyle once again relies on her expert, who stated that while the employees may
have undergone training, their negligent behavior on the video makes it clear that the training was
inadequate:
Training is not just “sit and get.” It’s not just, “go to a computer program and punch
through the buttons until it says you passed.” Training is knowledge that people who
are caring for children can understand the expectations and do what they are expected
to do. Training is not a thing that you pass, it’s a level of competency that typically
involves … actual hands-on observation and coaching as needed so that a supervisor
knows there’s a level of mastery.
Dkt. No. 50-3 at 13. Essentially, Lyle is making a res ipsa argument: if 24 Hour Fitness’s training
of Kids’ Club employees left them so ill-prepared that they would behave the way they did in the
video, the training must have been inadequate.
Lyle has introduced an interesting question: does an employee’s failure to follow his or her
training mean, by definition, that the training was inadequate? But that is not the proper analysis.
The question before the Court is whether or not the training that was provided, taken alone, was a
cause of L.T.’s injury. On that point Lyle has not produced any evidence sufficient to create a fact
issue. Rather, the testimony of the Kids’ Club manager and Lyle’s expert make it clear that the
training that 24 Hour Fitness provided was adequate.
Regardless, as noted earlier, the negligent training and supervision claims are irrelevant
because 24 Hour Fitness admits that it is liable under the doctrine of respondeat superior for the
actions of Bridge and Alvarez. This means all that matters is whether Bridge and Alvarez provided
supervision that met the standard of care, and if not, whether that was the proximate cause of L.T.’s
fall. It makes no difference if the inadequate supervision of L.T. was the result of Bridge or
Alvarez’s own negligence, or instead was caused by 24 Hour Fitness failing to adequately supervise
or train them. In any event, summary judgment is appropriate on these claims.

IV. RECOMMENDATION
Based upon the foregoing, the Court RECOMMENDS that the District Judge GRANT IN
PART AND DENY IN PART Defendant’s Motion for Summary Judgment, Dkt. No. 45. The Motion
should be GRANTED as to the claims of negligent supervision and negligent training; it should be
DENIED as to the claim of negligence.
V. 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 upon 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, 106 S. Ct. 466,
472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).
SIGNED this 8 day of June, 2016.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE