Garza v. North East Independent School District et al

Filing 43

REPORT AND RECOMMENDATIONS recommending dismissal of claims brought against defendant Flavio Valdez in 8 Complaint filed by Hermelinda Garza. Signed by Judge Nancy Stein Nowak. (Mailed on 9/18/09 by certified mail or sent via electronic transmittal.) (ga)

UNITED STATES DISTRICT COURT WESTERN DISTRICT of TEXAS SAN ANTONIO DIVISION

HERMELINDA GARZA, Plaintiff, v. NORTH EAST INDEPENDENT SCHOOL DISTRICT, FLAVIO VALDEZ, LESHA SQUIRES, CAROL FLANIGAN, DIANA MONTEMAYOR, Defendants.

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CIVIL ACTION NO. SA-09-CA-0274 FB (NN)

REPORT AND RECOMMENDATION

TO:

Honorable Fred Biery United States District Judge

This report and recommendation recommends dismissal of the claims brought against defendant Flavio Valdez. Valdez was a former employee of defendant Northeast Independent School District (the school district). On June 10, 2009, the school district filed a suggestion of death under Rule 25 of the Federal Rules of Civil Procedure, notifying the court that Valdez was deceased.1 Rule 25 directs the court to dismiss the action against a deceased party if a motion to

1

Docket entry # 21.

substitute is "not made within 90 days after service of a statement noting the death. . . ."2 Ninety days has passed. No motion to substitute was filed within Rule 25's 90-day time period. Because no motion was filed, the district court must dismiss the claims against Valdez. Instructions for Service and Notice of Right to Object/Appeal. The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a "filing user" with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this report and recommendation must be filed within 10 days after being served with a copy of same, unless this time period is modified by the district court.3 Such party shall file the objections with the clerk of the court, and serve the objections on all other parties and the magistrate judge. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court.4 Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this memorandum and recommendation shall bar

Fed. R. Civ. P. 25(a)(1) ("If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.").
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2

28 U.S.C. §636(b)(1); FED. R. CIV. P. 72(b).

Thomas v. Arn, 474 U.S. 140, 149-152 (1985); Acuņa v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). 2

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the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjectedto proposed factual findings and legal conclusions accepted by the district court.5 SIGNED on September 17, 2009.

_____________________________________ NANCY STEIN NOWAK UNITED STATES MAGISTRATE JUDGE

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Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996). 3