Garza et al v. Gibraltar U.S., Inc. et al

Filing 38

ORDER ADOPTING 31 Report and Recommendations. Signed by Judge Robert Pitman. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
BERNARDO GARZA, ERIC GUTIERREZ,
MIGUEL VILLARREAL, and BLAINE
STEWARD,
Plaintiffs,
v.
GIBRALTAR U.S., INC., GIBRALTAR
FABRICATION, LLC, GIBRALTAR
MATERIAL DISTRIBUTION GP, LLC,
W.W. GRAINER, INC., and B/A
PRODUCTS CO.,
Defendants.

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1:23-CV-505-DII

ORDER
Before the Court is the report and recommendation of United States Magistrate Judge Mark
Lane concerning Plaintiffs Bernardo Garza, Eric Gutierrez, Miguel Villarreal, and Blaine Steward’s
(collectively, “Plaintiffs”) Motion to Remand, (Dkt. 18), Defendant B/A Products Co.’s (“B/A
Products”) Motion to Dismiss, (Dkt. 12), and Defendant W.W. Grainger, Inc.’s Motion for
Judgment on the Pleadings, (Dkt. 15). (R. & R., Dkt. 31). Plaintiffs timely filed objections to the
report and recommendation. (Objs., Dkt. 34). Defendants filed responses to Plaintiffs’ objections,
(Dkts. 35, 36), and Plaintiffs filed a reply, (Dkt. 37).
In the report and recommendations, the magistrate judge recommends that the Court (1)
deny Plaintiffs’ motion to remand and dismiss without prejudice Defendants Gibraltar U.S., Inc.,
Gibraltar Fabrication, LLC, and Gibraltar Material Distribution GP, LLC as improperly joined; (2)
grant B/A Products’ Motion to Dismiss; and (3) grant W.W. Grainger, Inc.’s Motion for Judgment
on the Pleadings. (R. & R., Dkt. 31, at 12–13). In the portion of the report and recommendation
analyzing B/A Products’ Motion to Dismiss, the magistrate judge offers two grounds on which to
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grant the motion. The magistrate judge finds that Plaintiffs’ claims against B/A Products are time
barred under the statute of limitations and thus should be dismissed with prejudice. Alternatively,
the magistrate judge also finds that their claims should be dismissed without prejudice under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim but recommends that Plaintiffs be
allowed to replead their claims against B/A Products. (Id. at 8–13).
A party may serve and file specific, written objections to a magistrate judge’s findings and
recommendations within fourteen days after being served with a copy of the report and
recommendation and, in doing so, secure de novo review by the district court. 28 U.S.C.
§ 636(b)(1)(C). Because Plaintiffs timely objected only to the magistrate judge’s findings and
recommendation as to the motion to remand, (Objs., Dkt. 34; Reply, Dkt. 37), the Court reviews
that portion of the report and recommendation de novo. As no party has objected to the remainder of
the report and recommendation, the Court reviews those portions for clear error. See Fed. R. Civ. P.
72 advisory committee’s note (“When no timely objection is filed, the district court need only satisfy
itself that there is no clear error on the face of the record in order to accept the recommendation.”).
Plaintiffs do not object to the magistrate judge’s findings and recommendation as to the motion to
dismiss or motion for judgment on the pleadings. Having done those reviews, and for the reasons
given in the report and recommendation, the Court overrules Plaintiffs’ objections, and adopts the
report and recommendation in full. As for the magistrate judge’s analysis of B/A Products’ motion
to dismiss, the Court does not reach the merits of the 12(b)(6) issue because the Court is satisfied
that the claims against B/A Products are time-barred.
Accordingly, the Court ORDERS that the report and recommendation of United States
Magistrate Judge Mark Lane, (R. & R., Dkt. 31), is ADOPTED in accordance with this order.

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IT IS FURTHER ORDERED that Plaintiffs’ Motion to Remand, (Dkt. 18), is
DENIED. Plaintiffs’ claims against Defendants Gibraltar U.S., Inc., Gibraltar Fabrication, LLC,
and Gibraltar Material Distribution GP, LLC, are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Defendant B/A Products Co.’s Motion to Dismiss,
(Dkt. 12), is GRANTED. Plaintiffs’ claims against B/A Products Co. are DISMISSED WITH
PREJUDICE as barred by the statute of limitations.
IT IS FURTHER ORDERED that Defendant W.W. Grainger, Inc.’s Motion for
Judgment on the Pleadings, (Dkt. 15), is GRANTED. Plaintiffs’ claims against W.W. Grainger, Inc.
are DISMISSED WITHOUT PREJUDICE.
IT IS FINALLY ORDERED that Plaintiffs are granted leave to replead their claims
against W.W. Grainger, Inc. Plaintiffs shall file an amended complaint, if at all, on or before
December 4, 2023.
SIGNED on November 13, 2023.

ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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