Thunder Patch II, LLC et al v. JPMorgan Chase Bank, N.A.

Filing 46

REPORT AND RECOMMENDATIONS re 8 Complaint filed by Thunder Patch II, LLC, 9 Motion to Remand to State Court filed by Thunder Patch II, LLC, 38 Motion for Leave to File Document filed by Thunder Patch II, LLC, 11 Motion to Dismiss filed by JPMorgan Chase Bank, N.A. Signed by Judge Richard B. Farrer. (aej)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
THUNDER PATCH II, LLC, HOC
OPERATIONS, LLC,
Plaintiffs,
vs.
JPMORGAN CHASE BANK, N.A., AS
TRUSTEE OF THE RED CREST TRUST;
ANDY J. MCMULLEN, JOHN H.
MCMULLEN JR., MARGIE HARRIS
NEWTON, CYNTHIA CAROLE BEARD,

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5-18-CV-00629-OLG-RBF

Defendants.
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
To the Honorable Chief United States District Judge Orlando Garcia:
This real-property dispute concerns mineral interests in and around Gonzales County,
Texas. At issue presently is the Court’s jurisdiction, and before the Court is a Motion to Remand
filed by Plaintiffs Thunder Patch II, LLC and HOC Operations, LLC. Dkt. No. 9. Also before the
Court is a somewhat related Motion for Leave to File a First Amended Complaint, Dkt. No. 38,
also filed by Thunder Patch and HOC. The Court has reviewed and considered the various
associated responses and replies. See Dkt. Nos. 11, 12, 17-1, 40. Also pending before the Court
is the Motion to Dismiss Claims Against the Red Crest Trust Beneficiaries that was filed by
Defendant JPMorgan Chase Bank, N.A., in its capacity as Trustee of the Red Crest Trust. See
Dkt. No. 11. This motion also serves as a response to the aforementioned motion to remand.

1

There is further briefing associated with this motion as well, all of which the Court has
considered. See Dkt. Nos. 12, 19, 21.1
For the reasons discussed below, Plaintiffs’ Motion to Remand, Dkt. No. 9, should be
DENIED, and JP Morgan’s Motion to DISMISS, Dkt. No. 11, should be GRANTED. It is
further recommended that Plaintiffs’ Amended Complaint, Dkt. No. 8, be STRUCK and that
Plaintiffs’ belated Motion for Leave to File a First Amended Complaint, Dkt. No. 38, be
DENIED.
I.

Factual and Procedural Background

This action involves an effort to enforce an agreement concerning oil-and-gas interests in
Gonzales County. Orig. Pet. ¶ 7. Plaintiffs Thunder Patch and HOC allege that after expending
time and resources negotiating lease terms, contacting investors, running title searches, and
reviewing geological and engineering data, they reached “verbal and written meetings of the
minds with Defendant [JPMorgan] to sign an oil and gas lease.” Id. According to Thunder Patch
and HOC, the need to assemble sufficient acreage to legally drill horizontal wells served as a
critical component of the agreement. Id. ¶ 8. Thunder Patch and HOC allege that, in furtherance
of their agreement and in reliance on JP Morgan’s representations, they obtained an oil, gas, and
mineral lease from unspecified sellers. Id. ¶ 9. JPMorgan, however, allegedly later attempted to
unjustifiably change the terms of the deal with Thunder Patch and HOC. Id. ¶¶ 12, 15.
As a result of the ensuing dispute, Thunder Patch and HOC—on May 22, 2018—sued
JPMorgan, as trustee of the Red Crest Trust, in the 25th Judicial District Court of Gonzales
County, Texas. Id. Thunder Patch and HOC sought a declaration that the lease they negotiated
1

The District Court assigned to the undersigned the disposition of all pre-trial matters in this
action, pursuant to Rules CV-72 and 1 of Appendix C to the Local Rules for the United States
District Court for the Western District of Texas. See Dkt. No. 18. The undersigned has authority
to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
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with JPMorgan is valid and binding. And, although not entirely clear, they appeared also to
allege that JPMorgan wrongfully converted certain royalty payments relating to another lease.
Thunder Patch and HOC further asserted state law causes of action against JPMorgan, as trustee
of the Red Crest Trust, to quiet title and for trespass to try title, conversion, and breach of
fiduciary duty.
JPMorgan timely removed the action to federal court a month later. See Dkt. No. 1. In
support of removal it alleged complete diversity, stating that it is a national bank with its main
office in Ohio and that, “[u]pon information and belief,” none of Thunder Patch’s and HOC’s
members are citizens of Ohio. Id. ¶¶ 6-8. Approximately three weeks after removal, Thunder
Patch and HOC filed an amended complaint—without leave of court—joining the beneficiaries
of the Red Crest Trust as defendants. See Dkt. No. 8. That same day, Thunder Patch and HOC
filed their Motion to Remand, asserting no federal diversity jurisdiction exists because the trust
beneficiaries all reside in Texas, and “[b]ecause Plaintiff HOC Operations, LLC is a Texas
entity.” See Dkt. No. 9 at 4. JPMorgan thereafter moved to dismiss the nondiverse beneficiaries,
arguing they are not required parties under Rule 19 and their presence may destroy diversity
jurisdiction. See Dkt. No. 11 at 4.
On October 11, 2018, the undersigned issued an Order to Show Cause. See Dkt. No. 36.
To Thunder Patch and HOC, the Order explained that, contrary to their allegations, “JPMorgan
was sued in its capacity as a trustee; Red Crest Trust was not named as a defendant in this
action.” Id. Therefore, the Order clarified, “in assessing whether diversity jurisdiction exists, the
Court looks to the citizenship of JPMorgan only, provided JPMorgan ‘has sufficiently real and
substantial control over the trust’s assets.’” Id. (quoting Bynane v. Bank of New York Mellon for
CWMBS, Inc. Asset-Backed Certificates Series 2006-24, 866 F.3d 351, 359 (5th Cir. 2017)).

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Because JPMorgan appeared to have sufficiently real and substantial control over the trust’s
assets, the Order explained, the citizenship of the individual trust beneficiaries is inconsequential
in assessing whether diversity jurisdiction exists here. Id. at 3.
The Order further advised that leave to file an amended complaint had not been sought
and yet was required in these circumstances, notwithstanding Plaintiffs’ invocation of Rule
15(a). See id. at 5. The Order therefore directed Thunder Patch and HOC to show cause why
their Amended Complaint should not be struck for impermissibly adding nondiverse permissive
parties after removal. See id. at 6.
The Order also addressed JPMorgan. In its notice of removal, JPMorgan failed to provide
the citizenship of each of Thunder Patch’s and HOC’s members. The Order directed JPMorgan
to file an amended Notice of Removal that adequately established the Court’s jurisdiction. See id.
at 4. Specifically, the Court ordered JPMorgan to consult with counsel for Thunder Patch and
HOC as well as the sources at its disposal, including court filings and other public records, to
determine the identity and citizenship of Thunder Patch’s and HOC’s members. Only following
this inquiry, the Order explained, could JPMorgan allege complete diversity in good faith based
on information and belief. Id.
On October 20, 2018, JPMorgan filed an Amended Notice of Removal. See Dkt. No. 37.
In it, JPMorgan alleged that complete diversity exists “[i]n good faith [and] on information and
belief.” See id. ¶¶ 8-12. In support, JPMorgan asserted that after consulting with opposing
counsel and the relevant public records from the California and Texas Secretaries of State, it
found no evidence indicating that any of Thunder Patch’s or HOC’s members are citizens of
Ohio. See id. ¶¶ 8-12.

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On October 31, 2018, Thunder Patch and HOC responded to the Show Cause Order and,
for the first time, sought leave to file their First Amended Complaint. See Dkt. No. 38.
II.

Analysis

JP Morgan’s Citizenship—Not the Citizenship of the Red Crest Trust—Matters Here. As
explained in the Show Cause Order, when a trustee such as JPMorgan is sued in its capacity as a
trustee, it is the citizenship of the trustee—not the trust’s beneficiaries—that matters for diversity
of citizenship purposes. See Dkt. No. 36 at 2-3. This rule governs so long as the trustee has “real
and substantial control” over the trust’s assets. Byname, 866 F.3d at 359 (“BONYM was sued in
its capacity as a trustee. Thus, Navarro controls, and the only remaining question is whether
BONYM possesses the sort of ‘real and substantial’ control over the trust’s assets discussed in
Navarro [Sav. Ass’n v. Lee, 446 U.S. 458, 461 (1980)].”).2
Thunder Patch and HOC are mistaken to urge a different rule here, in reliance on Carden
v. Arkoma Assoc., 494 U.S. 185, 195-96 (1990), and Berry v. Chrysler, No. H-12-1492, 2013
WL 416218, at *7 (S.D. Tex. Jan. 31, 2013). Carden is inapposite to this case; it concerned
whether the citizenship of all partners, limited as well as general, controls the citizenship of a
limited partnership. And to the extent Carden informs the issue presented here, it confirms that
the earlier holding in Navarro controls and requires that a trustee’s citizenship is what matters
for diversity purposes under the circumstances presented here, not the citizenship of trust
beneficiaries. The Fifth Circuit has agreed with this conclusion in several recent decisions,
See also SGK Properties, L.L.C. v. U.S. Bank Nat’l Ass’n for Lehman Bros. Small Balance
Commercial Mortgage Pass-Through Certificates, Series 2007-3, 881 F.3d 933, 940 (5th Cir.
2018) (“The [Navarro] Court held that when a trustee is named as a defendant in a lawsuit, ‘[the]
trustee is a real party to the controversy for purposes of diversity jurisdiction when he possesses
certain customary powers to hold, manage, and dispose of assets for the benefit of others.’”)
(quoting Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 461 (1980)); Justice v. Wells Fargo Bank
Nat’l Ass’n, 674 Fed. App’x 330, 332 (5th Cir. Dec. 14, 2016), as revised (Mar. 22, 2017)
(same).
2

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including in Byname, 866 F.3d at 359.3 Berry, a nonbinding decision from the Southern District
of Texas, predated the Fifth Circuit’s interpretation of Navarro in Bynane, SGK Properties, and
Justice (see footnote 2 above). It too is distinguishable. Berry was a products-liability action
against Chrysler Group LLC, one of whose members was a trust. In assessing Chrysler’s
citizenship, the Court looked to the citizenship of the trust’s members. See Berry, 2013 WL
416218, at *4-6. Berry does not provide significant insight into the issue presented here where
the trustee—not the trust—is sued.
Here, Plaintiffs sued JPMorgan as the trustee for the Red Crest Trust; the Red Crest Trust
is not a named defendant. Indeed, according to Thunder Patch and HOC, Texas law required
them to file suit in this exact manner. Accordingly, the rule from Navarro controls here, as the
Fifth Circuit has explained. See Bynane, 866 F.3d at 359; SGK Properties, 881 F.3d at 940;
Justice, 674 Fed. App’x at 332.
It is apparent from the record and pleadings that JPMorgan has sufficiently real and
substantial control over the trust’s assets, and it therefore is the entity that matters for purposes of
diversity jurisdiction. See Schaffer v. U.S. Bank Tr., N.A. for LSF9 Master Participation Tr., No.
1:17-CV-297-RP, 2017 WL 6029646, at *4 (W.D. Tex. Dec. 5, 2017) (collecting cases and
looking to the pleadings and evidence to determine “the powers and limitations of the trustee and
the trust beneficiaries”). JPMorgan’s powers under the Trust Agreement are quite broad.4
According to the Agreement, the trustee has the “full power to manage, to control and to lease
3

See the decisions cited in footnote 2 supra as well as Universitas Educ., LLC v. Nova Grp.,
Inc., 513 Fed. App’x 62, 64 (2d Cir. 2013) (“Contrary to Nova Group’s contentions, Carden v.
Arkoma Associates, 494 U.S. 185, 110 S. Ct. 1015, 108 L.Ed.2d 157 (1990), which concerned
the citizenship of a limited partnership, did not overrule Navarro. Rather, the Supreme Court
explicitly held that the two opinions did not conflict. . . Navarro therefore remains good law.”)
(citations omitted).
4

Although Texas American Bank/Fort Worth, N.A. is named as the trustee under this agreement,
both parties appear to agree that JPMorgan is Texas American’s successor-in-interest.
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without warranty the Trust property, in whole or in part, on such terms and for such
consideration . . . as it shall deem proper,” as well as the “power and discretion” to “commence
or defend at the expense of the trust estate any litigation affecting the trust or any property of the
trust estate deemed advisable by the Trustee.” See Dkt. No. 40, Ex. A ¶¶ 7-8(d). JPMorgan has
also provided affidavit evidence explaining that the Red Crest Trust beneficiaries “have no
management or administrative responsibilities over the Trust or its assets,” “have no authority to
negotiate or enter into any leases on behalf of the Trust, and no authority to negotiate or settle
any claims made against the Trust.” See Dkt. No. 11-1 ¶¶ 5-6. Finally, even Thunder Patch and
HOC seem to concede in their Original Petition that JPMorgan has the power to negotiate an oil
and gas lease on behalf of the Red Crust Trust, which is the subject of this litigation. See Orig.
Pet. ¶¶ 7-14.
Because JPMorgan is the party with real and substantial control over the trust’s assets, it
is JPMorgan’s citizenship that matters here. The Amended Notice of Removal sufficiently
alleges complete diversity in good faith based on information and belief. See Lincoln Ben. Life
Co. v. AEI Life, LLC, 800 F.3d 99, 108 (3d Cir. 2015); see also Bates Energy Oil & Gas, LLC v.
Complete Oil Field Sers., LLC, No. CV SA-17-CA-808-XR, 2017 WL 8727480, at *2 (W.D.
Tex. Aug. 30, 2017).
Leave to Amend Should be Denied. An amended pleading naming a new, nondiverse
defendant in a removed case requires a court to “scrutinize that amendment more closely than an
ordinary amendment.” Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987). This
involves considering: (1) “the extent to which the purpose of the amendment is to defeat federal
jurisdiction;” (2) “whether plaintiff has been dilatory in asking for amendment;” (3) “whether
plaintiff will be significantly injured if [the] amendment is not allowed;” and (4) “any other

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factors bearing on the equities.” Id. Close scrutiny of these factors counsels against permitting
Plaintiffs’ belated request for leave to file a First Amended Complaint.
Factor 1—Purpose of the Amendment. The first Hensgens factor looks into
whether the plaintiffs “knew or should have known the identity of the nondiverse defendant
when the state court complaint was filed.” Anzures v. Prologis Tex. I LLC, 886 F. Supp. 2d 555,
562 (W.D. Tex. 2012) (quotations omitted, collecting authorities). “Where the plaintiff knew
about the non-diverse party’s activities at the time he filed suit but did not include that party as
an original defendant, courts have viewed any later attempt to add the nondiverse party as a
defendant as nothing more than an attempt to destroy diversity.” Wein v. Liberty Lloyds of Texas
Ins. Co., No. A-15-CA-19-SS, 2015 WL 1275915, at *5 (W.D. Tex. Mar. 19, 2015) (quotations
omitted).
Here, Thunder Patch and HOC allege they “initially chose not to sue the [Red Crest
Trust] Beneficiaries in state court in the hopes of facilitating a speedy settlement.”
Dkt. No. 12 ¶ 8. “Now that such a settlement has not been reached, and considering the stricter
pleading requirements of federal court,” Plaintiffs allege they have properly amended and joined
the trust beneficiaries within Rule 15(a)(1)’s 21-day amendment period. Id. As the undersigned
explained in the Show Cause Order, this statement and the timing of the sought-after
amendment5 suggest that the primary purpose of the amendment was to destroy diversity. See
Dkt. No. 36 at 5. n. 4.
Michael Shebay—a member and officer of HOC Operations—now submits an affidavit
explaining that “[a]t the time the above-styled cause was filed in state court, neither Thunder

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See Boyce v. CitiMortgage, Inc., 992 F. Supp. 2d 709, 717 (W.D. Tex. 2014) (explaining that
“if a plaintiff moves to amend shortly after removal, some courts have viewed that as evidence of
a primary purpose to defeat jurisdiction”).
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Patch nor HOC (collectively ‘Plaintiffs’) was aware of the identities of the beneficiaries of the
Red Crest Trust.” Dkt. No. 38-1 ¶ 3. According to Shebay, Thunder Patch and HOC always
intended to add the Red Crest Trust beneficiaries as defendants and were planning on using the
state discovery process to determine their identities. Id. ¶ 4. Even taking these allegations as true,
actual knowledge is not the standard here. Rather, the Court must determine whether Thunder
Patch and HOC should have known the identities of the Red Crest Trust beneficiaries. There is
no indication in the record that the identities of the Red Crest Trust beneficiaries are secret or
otherwise difficult to discover. In fact, JPMorgan has submitted information suggesting that
counsel for Thunder Patch and HOC should have known the identity of the Red Crest Trust
beneficiaries by virtue of a 2011 action brought against JPMorgan as the trustee of the Red Crest
Trust. See Dkt. No. 40-1 at 20-36. Either with or without this information from other litigation,
the Court finds that the primary purpose of the amendment was to defeat jurisdiction.
Factor 2—Plaintiffs’ Delay in Amending. “In analyzing the second Hensgens
factor, courts consider the amount of time that has passed between the plaintiff’s motion to
amend and the filing of the original petition and notice of removal.” Anzures, 886 F. Supp. 2d at
565. “A delay of two months after the filing of the original complaint or almost thirty days after
the notice of removal has been found dilatory, especially when a plaintiff knew of the potential
defendant’s role in the dispute when he filed the case in state court.” Id. (quotations omitted,
collecting authorities). The record reflects that Thunder Patch and HOC filed their First
Amended Complaint almost two months (52 days) after initiating suit and 21 days after
JPMorgan removed the case to federal court. Further, it was not until October 26, 2018—over 5

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months after filing suit in state court and over 4 months after JPMorgan removed the case—that
Thunder Patch and HOC actually sought leave to file their First Amended Complaint.6
When analyzing this second factor, courts consider the procedural posture of the case,
with particular attention to whether “trial or pre-trial dates were scheduled” or any “significant
activity beyond the pleading stage has occurred.” See Anzures, 886 F. Supp. 2d at 565. Although
the undersigned recognizes that this case is still in its early stages, “where a plaintiff’s true
motive in seeking to add a defendant is to defeat jurisdiction, speed is not terribly relevant.”
Boyce, 992 F. Supp. 2d at 721. Accordingly, notwithstanding the foregoing, this second factor
also weighs against the amendment.
Factor 3—Potential Injury to Thunder Patch and HOC. In determining whether
potential prejudice exists under the third Hensgens factor, courts consider “whether a plaintiff
can be afforded complete relief in the absence of the amendment.” Anzures, 886 F. Supp. 2d at
565. Also relevant is whether “the plaintiff will be forced to litigate their action against the nondiverse defendants in a different court system, on a different timetable, subject to different
procedural rules and conflicting results, and under the weight of additional financial burden.”
Adey/Vandling, Ltd. v. Am. First Ins. Co., No. A-11-CV-1007-LY, 2012 WL 534838, at *4
(W.D. Tex. Feb. 17, 2012).

See Hardy v. JPMorgan Chase Bank, Nat. Ass’n, No. A-14-CA-360-SS, 2014 WL 2700800, at
*3 (W.D. Tex. Jun. 13, 2014) (“Hardy purported to file the Amended Complaint without leave of
court pursuant to Federal Rule of Civil Procedure 15(a). However, because the Amended
Complaint would add nondiverse parties and destroy the basis for federal jurisdiction, Hardy was
required to seek leave to file it.”); see also Horton v. Scripto-Tokai Corp., 878 F. Supp. 902, 908
(S.D. Miss. 1995) (disagreeing with plaintiff’s view that Rule 15(a) permitted her to amend her
complaint without leave of court and explaining “[w]here the addition of a party will destroy the
court’s jurisdiction and prejudice the other party, the general rule prevails that leave of court is
necessary”).
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Here, Plaintiffs cite Texas Rule of Civil Procedure 39 and allege that the Red Crest Trust
beneficiaries are necessary parties because they are the ultimate recipients of royalty payments
stemming from the disputed mineral interests. If the amendment is denied, Plaintiffs argue they
will be forced to choose whether to pursue parallel state court proceedings against the Red Crest
Trust Beneficiaries and “will be at substantial risk of incurring double, multiple or otherwise
inconsistent obligations.”
There are too many open questions here to say definitively which way this factor points.
As discussed above, the Trust Agreement confers on JPMorgan broad authority to manage,
control, and lease the trust property and to defend against any litigation affecting the trust as
deemed advisable by the trustee. Under Texas law, “[trust] [b]eneficiaries are not necessary
parties in an action against a trustee unless the trustee clearly has an adverse interest to the
beneficiaries.” Armstrong v. Steppes Apartments, Ltd., No. 2-97-250-CV, 1998 WL 34202656, at
*8 (Tex. App.—Fort Worth Aug. 20, 1998, no pet.); see also Smith Int’l, Inc. v. Egle Grp.,
L.L.C., No. CIVA H-04-4151, 2005 WL 6458659, at *7 (S.D. Tex. Jun. 3, 2005). There is no
indication that JPMorgan’s interests are at odds with the Red Crest Trust beneficiaries’ interests;
nor is there any indication that JP Morgan would be unable to satisfy any potential future
judgment on behalf of the Red Crest Trust. See Gallegos v. Safeco Ins. Co. of Indiana, No.
CIV.A. H-09-2777, 2009 WL 4730570, at *5 (S.D. Tex. Dec. 7, 2009). And Thunder Patch and
HOC do not persuade with their conclusory assertions that the trust beneficiaries are necessary
parties because interests in real property belonging to them may be impaired. JPMorgan
indicates, and Thunder Patch and HOC do not appear to meaningfully contest, that trust assets
are “held in its [JPMorgan’s] name.” Dkt. No. 40 at 1. This appears to reflect a situation in which
assets are held by the trust and inure to the benefit of beneficiaries; the assets held in trust are not

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in the beneficiaries’ names. In other words, “[t]he Red Crest Trust beneficiaries have asserted no
claim to the mineral interests which are the subject of this lawsuit.” Id. at 7. JPMorgan’s
arguments on this issue, and its citation to Crawford v. XTO Energy, Inc., 509 S.W.3d 906
(2017), appear more on-point than Thunder Patch and HOC’s contrary position.
Ultimately, however, and given that the first two factors go against Thunder Patch and
HOC (and the final factor is at most a tie), this factor is not outcome determinative. The ultimate
conclusion here would not change even if this factor were to go entirely in Thunder Patch and
HOC’s favor, and it appears in fact to favor JPMorgan.
Factor 4—Other Factors Bearing on the Equities. The final Hensgens factor
requires the Court to analyze other relevant factors that might bear on the equities. Thunder
Patch and HOC argue that this factor weighs heavily in their favor because this is essentially a
Texas dispute that happens to involve a trustee that is an Ohio citizen. Dkt. No. 38 at 10. But that
argument seems to state considerations at play in almost all removed cases involving diversity
jurisdiction, and those considerations seem offset by the fact that granting leave to amend would
destroy diversity and thus would deprive JPMorgan— the removing party— of a properly
invoked federal forum. See Smith v. Robin Am., Inc., No. H-08-3565, 2009 WL 2485589, at *6
(S.D. Tex. Aug.7, 2009) (noting that this latter consideration can be “[t]he main concern at issue”
when analyzing the fourth Hensgens factor). This factor is at most neutral.
After a careful analysis of the Hensgens factors, the undersigned concludes that leave to
amend should be denied.
III.

Conclusion

For the reasons discussed above, the undersigned recommends that Plaintiffs’ Motion to
Remand, Dkt. No. 9, be DENIED, and that JP Morgan’s Motion to DISMISS, Dkt. No. 11, be

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GRANTED. It is further recommended that Plaintiffs’ Amended Complaint, Dkt. No. 8, which
was filed without leave of Court, be STRUCK and that Plaintiffs’ Motion for Leave to File a
First Amended Complaint, Dkt. No. 38, be DENIED. Finally, as Plaintiffs never obtained leave
to file their Amended Complaint, the undersigned recommends that the Answers filed by the Red
Crest Trust beneficiaries, Dkt. Nos. 42-45, be STRUCK.
In light of the above recommendation, IT IS ORDERED THAT within ten (10) days
after this Report and Recommendation issues, the parties shall confer and submit joint
scheduling recommendations to govern the remainder of this action.
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 by certified mail, return receipt
requested, to those not registered. Written objections to this report and recommendation must be
filed within fourteen (14) days after being served with a copy of same, unless this time period is
modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The objecting party
shall file the objections with the clerk of the court, and serve the objections on all other parties. 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, conclusory, 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. Thomas v. Arn,
474 U.S. 140, 149-52 (1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000).
Additionally, failure to timely file written objections to the proposed findings, conclusions, and

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recommendations contained in this report and recommendation shall bar the aggrieved party,
except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.
SIGNED this 10th day of December, 2018.

RICHARD B. FARRER
UNITED STATES MAGISTRATE JUDGE

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