Albert et al v. United States Department of the Army et al

Filing 94

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 57 Motion to Amend Complaint, filed by Phylis Albert, Frankie D. Albert, is DISMISSED WITHOUT PREJUDICE; 73 Motion for Summary Judgment, filed by Wounded Warrior Project, Inc. is DENIED. Signed by Judge Jason K. Pulliam. (rg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

FRANKIE D. ALBERT, AS PARENTS AND
NEXT FRIEND OF JANE DOE, A MINOR;
AND PHYLIS ALBERT, AS PARENTS AND
NEXT FRIEND OF JANE DOE, A MINOR;
Plaintiffs

-vs-

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SA-17-CV-00703-JKP

UNITED STATES DEPARTMENT OF THE
ARMY, WOUNDED WARRIOR PROJECT,
INC.,
Defendants

ORDER ACCEPTING REPORT AND RECOMMENDATION OF THE UNITED
STATES MAGISTRATE JUDGE
Before the Court is Magistrate Judge Elizabeth Chestney’s Report and Recommendation
filed on September 10, 2019, and Defendant Wounded Warrior Project’s (WWP) objections to
the report. (Doc. Nos. 80, 86). Magistrate Judge Chestney recommends Plaintiffs’ Reurged
Motion for Leave to File Third Amended Complaint (Doc. No. 57) be dismissed without
prejudice and WWP’s Motion for Summary Judgment (Doc. No. 73) be denied.
Plaintiffs’ Motion for Leave to File Third Amended Complaint
No party filed objection to Magistrate Judge Chestney’s recommendation regarding
Plaintiffs’ Reurged Motion for Leave to File Third Amended Complaint.
If no party objects to a Magistrate Judge’s Report and Recommendation, the Court need
only review the Magistrate Judge’s report to determine whether the findings and
recommendations are clearly erroneous or contrary to law. Johnson v. Sw. Research Inst., 210 F.

Supp. 3d 863, 864 (W.D. Tex. 2016) (citing U.S. v. Wilson, 864 F.2d 1219, 1221 (5th Cir.
1989)).
The Court reviewed the Report and Recommendation pertaining to Plaintiffs’ Reurged Motion
for Leave to Amend and finds it to be neither clearly erroneous nor contrary to law.
Accordingly, the Court ACCEPTS the Magistrate Judge’s recommendation that the
motion be dismissed without prejudice to being renewed at trial on an evidentiary record.

Defendant Wounded Warrior Project’s Motion for Summary Judgment
WWP filed objections to Magistrate Judge Chestney’s Report and Recommendation as it
pertained to WWP’s Motion for Summary Judgment.
This Court shall make a de novo review of those portions of any Report and
Recommendation to which any party objects. 28 U.S.C. § 636(b)(1)(C); see also Longmire v.
Guste, 921 F.2d 620, 623 (5th Cir.1991). In conducting a de novo review, the Court will examine
the record pertinent to the objections and must conduct its own analysis of the applicable facts
and make an independent assessment of the law. This Court is not required to give any deference
to the magistrate judge’s findings. See United States v. Raddatz, 447 U.S. 667, 689 (1980)
(Stewart, J., dissenting) (“The phrase ‘de novo determination’ has an accepted meaning in the
law. It means an independent determination of a controversy that accords no deference to any
prior resolution of the same controversy.”); Shiimi v. Asherton Indep. Sch. Dist., 983 F.2d 233,
1993 WL 4732, at *3 n. 18 (5th Cir. Jan. 8, 1993). The Court will not conduct a de novo review
pertaining to any objections that are frivolous, conclusive or general in nature. See Battle v.
United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).

This Court conducted a de novo review of WWP’s objections to the Report and
Recommendation and carefully reviewed the record. At this time, a genuine issue of material fact
exists which precludes summary judgment as to Plaintiffs’ negligence cause of action against
WWP.
Accordingly, the Court ACCEPTS the Magistrate Judge’s recommendation that WWP’s
Motion for Summary Judgment be DENIED.
This Court ACCEPTS and ADOPTS Magistrate Judge Chestney’s Report and
Recommendation in its entirety.
It is ORDERED Plaintiffs’ Reurged Motion for Leave to File Third Amended Complaint
(Doc. No. 57) be DISMISSED WITHOUT PREJUDICE, and Defendant’s Motion for Summary
Judgment (Doc. No. 73) be DENIED.
SIGNED this 7th day of October, 2019.

JASON PULLIAM
UNITED STATES DISTRICT JUDGE