Opinion
Civil Action No. 3:20-CV-1820-L-BK
2021-09-15
SAFE HOME SECURITY, INC. and Security Systems, Inc. d/b/a Safeguard America, Plaintiffs, v. PHILADELPHIA INDEMNITY INSURANCE COMPANY, Defendant.
Richard W. Brown, Saxe Doernberger & Vita PC, Trumbull, CT, for Plaintiffs. Stephen A. Melendi, Matthew Patrick Rigney, Tollefson Bradley Mitchell & Melendi LLP, Dallas, TX, for Defendant.
Richard W. Brown, Saxe Doernberger & Vita PC, Trumbull, CT, for Plaintiffs.
Stephen A. Melendi, Matthew Patrick Rigney, Tollefson Bradley Mitchell & Melendi LLP, Dallas, TX, for Defendant.
ORDER
Sam A. Lindsay, United States District Judge
Before the court is Defendant Philadelphia Indemnity Insurance Company's Motion for Summary Judgment ("Motion") (Doc. 17), filed December 4, 2020. On August 30, 2021, the Findings, Conclusions and Recommendation of the United States Magistrate Judge ("Report") (Doc. 36) was entered recommending that the court grant Defendant's Motion and enter judgment in favor of Defendant based on the determination that it had no duty to defend or indemnify Plaintiffs in the underlying action under the insurance policies at issue.
On September 13, 2021, Plaintiffs Safe Home Security, Inc. and Security Systems, Inc. d/b/a Safeguard America (collectively, "Plaintiffs" or "Safe Home") filed objections to the Report. Plaintiffs contend that: (1) contrary to applicable law, the magistrate judge conflated the distinction between Defendant's duty to defend and duty to indemnify by failing to first determine whether any allegations in the underlying action fall within the scope of coverage before considering whether a policy exclusion applies; (2) the magistrate judge's analysis focused on the claims alleged in the underlying action rather than the factual allegations regarding the claims against Safe Home in determining whether a policy exclusion bars coverage; and (3) magistrate judge failed to consider whether there was any possibility of coverage, for example, based on Safe Home's negligence, which would be covered by the policy language that states Defendant "will pay those sums that the insured becomes legally obligated to pay as ‘damages’ sustained by a client, customer or patron of the insured proximately caused by negligent acts, errors or omissions committed by [Safe Home] in the actual rendering of professional services." Pls.’ Obj. 6. Plaintiffs assert that, although it may be possible that the plaintiff in the underlying action is able to prevail on its alleged claims of wrongful conversion, tortious interference, and civil theft, it is also possible that evidence will establish that Safe Home's conduct was negligent rather than intentional as required to trigger the policy exclusion that forms the basis for the magistrate judge's determination. Plaintiffs, therefore, contend that, because "some of the allegations against Safe Home [in the underlying action] are potentially covered by the Policy, [Defendant] cannot meet its heavy burden of showing that the underlying pleadings allege only facts excluded under the policy." Id.
The court disagrees. The magistrate judge's Report includes the correct legal standards for the duty to defend and the duty to indemnify under Texas law and recognizes the distinction between the two. The Report states in pertinent part regarding the duty to defend:
[T]o plausibly claim that no duty to defend exists, the insurer is required to show that (1) none of the allegations in the underlying actions are potentially covered under the policy; or (2) the underlying pleadings allege only facts excluded under the policy. When assessing whether the allegations in a complaint fall within the scope of an exclusion, the complaint [is] reviewed liberally and the exclusion is construed narrowly.
Report 4-5 (emphasis added) (citing City of Coll. Station v. Star Ins. Co., 735 F.3d 332, 336 (5th Cir. 2013) ; and Zurich Am. Ins. Co. v. Nokia, Inc., 268 S.W.3d 487, 491 (Tex. 2008) ). The Report further explains that, while one duty may exist without the other, and the duty to indemnify often cannot be determined until there is a judgment in the underlying action, the duty to indemnify can be determined from the pleadings "when the insurer has no duty to defend and the same reasons that negate the duty to defend likewise negate any possibility the insurer will ever have a duty to indemnify." Report 5 (quoting Farmers Tex. Cnty. Mut. Ins. Co. v. Griffin, 955 S.W.2d 81, 82 (Tex. 1997) ).
This law formed the basis for the magistrate judge's determination, based on her review of the pleadings in the underlying action and the policy exclusion language, that Defendant owed Plaintiffs no duty to defend or indemnify. The magistrate judge, therefore, determined that the policy exclusion language defeats Plaintiffs’ claims in this case, which are all premised on their contention that Defendant owed them a duty to defend in the underlying action. In addition to considering the elements of the claims pleaded in the underlying action, the magistrate judge considered and even quoted factual allegations from the complaint in the underlying action in determining that the policy exclusion applied. See Report 8-9. Plaintiffs’ assertion to the contrary mischaracterizes the magistrate judge's Report.
12 Moreover, as noted by the magistrate judge, Plaintiffs failed to address Defendant's policy exclusion argument in responding to Defendant's Motion. "Generally, the failure to respond to arguments constitutes abandonment or waiver of the issue." Kellam v. Servs., No. 3:12-cv-352-O, 2013 WL 12093753, at *3 (N.D. Tex. May 31, 2013), aff'd sub nom., Kellam v. Metrocare Servs., 560 F. App'x 360 (5th Cir. 2014) (citations omitted); see also Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 190 (5th Cir. 2007) (explaining that inadequately briefed issues are considered waived). Likewise, legal arguments raised for the first time in an objection to a magistrate judge's report are waived. See Benamou v. Wells Fargo Bank Nat'l Assoc. for Carrington Mortg. Loan Trust, 711 F. App'x 241, 242 (5th Cir. 2018) (quoting Freeman v. City of Bexar, 142 F.3d 848, 851 (5th Cir. 1998) ("[A] party who objects to the magistrate judge's report waives legal arguments not made in the first instance before the magistrate judge.")). Plaintiffs, therefore, waived this objection and legal argument by not including it in their response to Defendant's Motion and not presenting it in the first instance to the magistrate judge.
While Plaintiffs did argue in response to Defendant's Motion that a defendant must defend an entire suit if the complaint potentially includes a covered claim, they did not argue that Defendant had a duty to defend in the underlying action because it is possible that evidence in the underlying action might establish that Safe Home's conduct was negligent rather than intentional. Moreover, this argument is not supported by and cannot be reasonably inferred from the allegations in the complaint in the underlying action. Resolution of all of the foregoing contentions moots Plaintiffs’ remaining arguments. Further, as all claims asserted by Plaintiffs in this action stem from or are predicated upon their contention that Defendant owed and breached a duty to defend and indemnify them, the court agrees with the magistrate judge that Defendant is entitled to judgment as a matter of law on all of Plaintiffs’ claims, as they have failed to raise a genuine dispute of material fact with regard to any of their claims.
Having considered Defendant's Motion, the summary judgment evidence, the pleadings in the underlying case, the record, and Report, and having conducted a de novo review of that portion of the Report to which objection was made, the court determines that the findings and conclusions of the magistrate judge are correct, and accepts them as those of the court. Accordingly, the court grants Defendant Philadelphia Indemnity Insurance Company's Motion for Summary Judgment ("Motion") (Doc. 17); overrules Plaintiffs’ objections to the Report (Doc. 37); and dismisses with prejudice all claims asserted by Plaintiffs in this action. In accordance with Rule 58 of the Federal Rules of Civil Procedure, judgment will issue by separate document.
It is so ordered this 15th day of September, 2021.
FINDINGS , CONCLUSIONS , AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
RENEE HARRIS TOLIVER, UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Judge's Standing Order of Reference, Doc. 16, this case was referred to the United States magistrate judge for pretrial management. The Court now considers Defendant Philadelphia Indemnity Insurance Company's Motion for Summary Judgment , Doc. 17. review, the motion should be GRANTED .
I. BACKGROUND
A. Procedural History
In this insurance coverage dispute, Plaintiffs Safe Home Security, Inc. ("Safe Home") and Security Systems, Inc. dba Safeguard America ("Safeguard") allege that Defendant, Philadelphia Indemnity Insurance Company ("Philadelphia"), breached its duty to defend and indemnify Plaintiffs in an underlying action (the "Underlying Action"). Doc. 1 at 2-4. In this action, Plaintiffs allege claims for breach of contract, breach of the duties of good faith and fair dealing, and violations of the Texas Insurance Code—they seek declaratory relief, damages, and attorney's fees. Doc. 1 at 4-10.
Global Alarm Protection Inc., v. The Sales Mob, Inc., et al. , No. DC-17-15848 (101st Judicial District Court, Dallas, County, Texas).
B. Facts
The parties generally agree on the following facts: Plaintiffs sell home security systems and services. Doc. 31 at 7. In 2017, Plaintiffs entered into a dealer agreement with The Sales Mob, Inc. to purchase alarm monitoring contracts. Doc. 19-1 at 9-10. The agreement led Plaintiffs’ competitor, Global Alarm Protection, Inc. ("Global Alarm") to initiate the Underlying Action against The Sales Mob and Plaintiffs in Texas state court. Doc. 19-1 at 2. Global Alarm alleged, inter alia , that The Sales Mob breached their dealer agreements by refusing to give Global Alarm the exclusive right of first refusal for the purchase of all alarm monitoring contracts The Sales Mob acquired. Doc. 18 at 8. Global Alarm also accused Plaintiffs of tortious interference with the dealer agreement between Global Alarm and The Sales Mob. Doc. 19-1 at 4.
After being sued, Plaintiffs turned to Philadelphia for defense and indemnification. Doc. 31 at 9. At the time of the disputed purchase, Plaintiffs maintained three insurance policies with Philadelphia: an umbrella policy, a policy covering employment related liabilities and practices, and a commercial general liability policy (the "CGL" or "Policy"), that includes an endorsement adding coverage for errors and omissions ("E&O"). Doc. 18 at 9. This dispute concerns the E&O coverage provided by the CGL. Doc. 13 at 2.
After reviewing the claims asserted in the Underlying Action, Philadelphia decided they fall outside the scope of the CGL and denied all coverage. Doc. 18 at 9. Plaintiffs seek an order declaring Philadelphia's duty under the CGL to defend and indemnify Plaintiffs for claims alleged in the Underlying Action. Doc. 1 at 10. By the motion sub judice , Philadelphia seeks summary judgment in its favor.
II. APPLICABLE LAW
A. Summary Judgment
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c) ; Celotex Corp. v. Catrett , 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party moving for summary judgment has the initial burden of "informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex , 477 U.S. at 323, 106 S.Ct. 2548 (internal quotation marks omitted).
Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotations omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ " Id. Conclusory allegations are not competent summary judgment evidence and are thus insufficient to defeat a motion for summary judgment. Eason v. Thaler , 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr , 19 F.3d 1527, 1533 (5th Cir. 1994).
B. Duty to Defend
In Texas, an insurer's duty to defend is determined by the "eight-corners rule." Zurich Am. Ins. Co. v. Nokia, Inc. , 268 S.W.3d 487, 491 (Tex. 2008). The rule restricts the court's analysis to the contents of two relevant documents: the insurance policy and the latest complaint in the underlying suit. State Farm Lloyds v. Richards , 966 F.3d 389, 393-394 (5th Cir. 2020). Moreover, the court does not consider the merits of the alleged underlying claims or the truth or falsity of the allegations. GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church , 197 S.W.3d 305, 308 (Tex. 2006). The duty to defend applies if there is a possibility that any factual allegations in the underlying suit fall within the policy's coverage. Zurich , 268 S.W.3d at 491 (citation omitted). When determining the scope of coverage, all doubts concerning the duty must be resolved in favor of the insured. See id. Courts may not, however, read facts into the pleadings, look outside the pleadings, or imagine factual scenarios which might trigger coverage. Nat'l Union Fire Ins. Co. v. Merchs. Fast Motor Lines, Inc. , 939 S.W.2d 139, 141 (Tex. 1997) (citation omitted). Nevertheless, the court "may draw inferences from the petition that may lead to a finding of coverage." Gen. Star Indem. Co. v. Gulf Coast Marine Assocs. , 252 S.W.3d 450, 456 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).
Thus, to plausibly claim that no duty to defend exists, the insurer is required to show that (1) none of the allegations in the underlying actions are potentially covered under the policy; or (2) the underlying pleadings allege only facts excluded under the policy. See City of Coll. Station v. Star Ins. Co. , 735 F.3d 332, 336 (5th Cir. 2013). When assessing whether the allegations in a complaint fall within the scope of an exclusion, the complaint reviewed liberally and the exclusion is construed narrowly. Zurich , 268 S.W.3d at 491. C. Duty to Indemnify
In Texas, "[a]n insurer's duty to defend and indemnify are distinct and separate duties." Farmers Tex. Cnty. Mut. Ins. Co. v. Griffin , 955 S.W.2d 81, 82 (Tex. 1997). These duties are addressed independently because the duty to defend is determined by the pleadings and the policy's language, while the duty to indemnify is determined by the actual facts eventually ascertained in the underlying lawsuit. See D.R. Horton–Tex., Ltd. v. Markel Int'l Ins. Co. , 300 S.W.3d 740, 744 (Tex. 2009). Thus, one duty may exist without the other. Id. at 743. Often, the duty to indemnify cannot be adjudicated until there has been a judgment in the underlying suit, as facts proven during litigation or at trial may differ from facts originally alleged. See Griffin , 955 S.W.2d at 83-84.
That notwithstanding, a duty to indemnify can be determined solely on the pleadings in the underlying lawsuit, when "when the insurer has no duty to defend and the same reasons that negate the duty to defend likewise negate any possibility the insurer will ever have a duty to indemnify. " Id. at 84 (emphasis in original). This circumstance is rare, however. See D.R. Horton–Tex. , 300 S.W.3d at 744-45.
D. Common Law Duty
In Texas, "an insurer owes a duty of good faith in handling its insured's own claim of loss." Med. Care Am., Inc. v. Nat'l Union Fire Ins. Co. , 341 F.3d 415, 425 (5th Cir. 2003). But there is no common law duty of good faith and fair dealing between an insurer and insured with respect to third-party claims. Mid-Continent Cas. Co. v. Eland Energy, Inc. , 709 F.3d 515, 520 (5th Cir. 2013). When an insured seeks coverage for injuries to a third party, it is considered a third-party claim; whereas a first party claim arises when an insured seeks recovery for the insured's own loss. Id. at 520-521.
When ruling on a motion for summary judgment, the court is required to view all facts and inferences in the light most favorable to the nonmoving party and resolve all disputed facts in favor of the nonmoving party. Id. Rule 56 does not, however, 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. Ragas v. Tenn. Gas Pipeline Co. , 136 F.3d 455, 458 (5th Cir. 1998). 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. Id. When ruling on a summary judgment motion, courts do not consider issues of disputed fact that are "irrelevant and unnecessary" to the determination of the claims and/or defenses. Anderson , 477 U.S. at 248, 106 S.Ct. 2505.
III. ANALYSIS
The Policy provides pertinent part:
We will pay those sums that the insured becomes legally obligated to pay as "damages" sustained by a client, customer or patron of the insured proximately caused by negligent acts, errors or omissions committed by you in the actual rendering of professional services described in the Declarations. We will have the right and duty to defend any "suit" seeking those "damages". However, we will have no duty to defend the insured against any "suit" seeking such "damages" to which this insurance does not apply.
Doc. 19-2 at 378, 397. There apparently is no dispute among the parties that the foregoing provision of the E&O provides the only possible coverage under the Policy applicable to this suit, or that while the Declarations do not define "professional services," they do identify Safe Home's business as "security services."
Plaintiff's do not argue or suggest that relevant coverage is provided under the any provision of the Policy other than the E&O.
In its motion for summary judgment, Philadelphia argues "the claims asserted in the underlying lawsuit by Global Alarm are simply not covered by any of the coverages afforded by the Philadelphia Policies, since Global Alarm, the only entity seeking damages, is a competitor of Safe Home — not a client, customer or patron," and Safe Home did not engage in a "professional service" that caused Global Alarm's damages. Doc. 18 at 10. Philadelphia contends also that it has no duty to defend or indemnify under the CGL because all of Global Alarm's injuries result from intentional acts and, thus, are specifically excluded from coverage under the Policy.
In response, Plaintiffs argue that The Sales Mob, their co-defendant in the ongoing Underlying Action, is a client or patron that may potentially sustain damages proximately caused by Plaintiffs entering into sales agreements with The Sales Mob. Doc. 31 at 15-17. Plaintiffs further argue that, "[a]s a company that sells, monitors, and services alarm systems, soliciting new business is an essential component of Safe Home's profession" and "Safe Home used its specialized knowledge of security services to entice TSM to enter into the Dealer Agreement." Doc. 31 at 17.
Philadelphia asserts in its reply that Plaintiffs fail to raise any genuine issues of material fact regarding either (1) the three elements required under the Policy to trigger E&O coverage or (2) the applicability of coverage under the Policy to the Underlying Action. Doc. 33 at 5-6.
Policy Exclusions Apply to Defeat Plaintiffs’ Claim
The Policy excludes coverage for "[i]ntentional injury [or] injury arising out of willful violation of a penal statute or ordinance, committed by or with the knowledge or consent of the insured." Doc. 19-2 at 451, 470. As these exclusions could bar Plaintiffs’ claims regardless of the parties’ remaining arguments, the Court considers that issue first. Philadelphia argues Plaintiffs’ claims are excluded because the only alleged injuries asserted in the Underlying Action are intentional. Doc. 18 at 20. However, Plaintiffs wholly fail to address Philadelphia's argument that the intentional conduct exclusion applies to defeat coverage under the CGL. Indeed, they suggest in their Amended Response that the actions ungirding the claims in the Underlying Action were indeed intentional. Doc. 31 at 17 ("Safe Home used its specialized knowledge of security services to entice TSM to enter into the Dealer Agreement.").
The Fifth Amended Complaint in the Underlying Action alleges three substantive claims against Plaintiffs: (1) wrongful conversion of the alarm monitoring accounts, Doc. 19 at 15-16; (2) tortious interference with contract, Doc. 19-1 at 18-19; and (3) civil theft under the Texas Theft Liability Act, Doc. 19-1 at 19-20. Each of the claims allege that Plaintiffs intentionally caused the injury allegedly suffered by Global Alarm or unlawfully did so. See, e.g. , Doc. 19-1 at 4 (Plaintiffs "intentionally" interfered with Global Alarm's contracts with The Sales Mob; Doc. 19-1 at 15-16 (Plaintiffs "wrongfully exercised control, and continue to wrongfully exercise control, over [Global Alarm's] accounts and contracts, and the revenues derived from the same"); Doc. 19-1 at 16 (Plaintiffs refuse to comply with requests to turn over the accounts "and continue to unlawfully and wrongfully exercise control over said accounts ..."); Doc. 19-1 at 19 (Plaintiffs "acted with malice to interfere with Global Alarm's right to its customer contracts and accounts, as evidenced by the fact that SSI Defendants received notice of the valid Dealer Agreement and, in complete disregard thereof, have continued to purchase accounts from [The Sales Mob]"); Doc. 19-1 at 20 (Plaintiffs "unlawfully appropriated the customer accounts and contracts from [The Sales Mob] without Global Alarm's effective consent .... (Plaintiffs’ "appropriation of the accounts and contracts constitutes civil theft."). The Underlying Action does not claim or infer that injury was caused by Plaintiffs’ "negligent acts, errors or omissions" or those of their codefendants.
Additionally, a defendant's intentional acts are necessary elements of all three causes of action. "The elements of conversion are: (1) the plaintiff owned, had legal possession of, or was entitled to possession of the property; (2) the defendant assumed and exercised dominion and control over the property in an unlawful and unauthorized manner, to the exclusion of and inconsistent with the plaintiff's rights; and (3) the defendant refused the plaintiff's demand for the return of the property. Tex. Dep't of Transp. v. Crockett , 257 S.W.3d 412, 416 (Tex. App.—Corpus Christi 2008, pet. denied) (citing Huffmeyer v. Mann , 49 S.W.3d 554, 558 (Tex.App.- Corpus Christi 2001, no pet.) ).
To constitute conversion, there must be some repudiation of the owner's right or an exercise of dominion over the property, wrongfully and in denial of or inconsistent with that right; or there must be an illegal assumption of ownership." Dolenz v. Nat'l Bank of Tex. at Fort Worth , 649 S.W.2d 368, 370 (Tex.App.-Fort Worth 1983, writ ref'd n.r.e.). A conversion defendant must intend to assert some right in the property to be held liable. Id.
Robinson v. Nat'l Autotech, Inc. , 117 S.W.3d 37, 40 (Tex. App.—Dallas 2003, pet. denied).
Under Texas law, tortious interference is an intentional tort. "To recover for tortious interference with an existing contract, a plaintiff must prove: (1) the existence of a contract subject to interference; (2) a willful and intentional act of interference; (3) the act was a proximate cause of the plaintiff's damages; and (4) actual damage or loss." Tex. Beef Cattle Co. v. Green , 921 S.W.2d 203, 210 (Tex. 1996) (citing Holloway v. Skinner , 898 S.W.2d 793, 795–96 (Tex. 1995) ).
Finally, under the Texas Theft Liability Act, "a person who commits theft is liable for the damages resulting from the theft." Tex. Civ. Prac. & Rem.Code Ann. § 134.003(a) (Vernon 2005). A person commits the criminal offense of theft, as defined under the Texas Penal Code, when he as "unlawfully appropriates property with intent to deprive the owner of the property." TEX. PEN. CODE ANN. § 31.03.
Based on the foregoing, the Court concludes that the claims against Plaintiffs in the Underlying Action are categorically excluded by the intentional injury exclusion of the CGL. Because Plaintiffs’ claims in this action fail under the exclusion provision of the Policy, utilizing the eight-corners test, the Court need not reach the parties’ other arguments.
IV. CONCLUSION
Because no genuine issue of material fact exits as to the applicability of the Policy's exclusion clause to the claims in the Underlying Action, Philadelphia has no duty to defend or indemnify Plaintiffs in the Underlying Action. Accordingly, Defendant Philadelphia Indemnity Insurance Company's Motion for Summary Judgment , Doc. 17, should be GRANTED , and judgment in this cause entered in favor of Defendant.
SO RECOMMENDED on August 30, 2021.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1) ; FED. R. CIV. P. 72(B). An objection must identify the finding or recommendation to which objection is made, state the basis for the objection, and indicate where in the magistrate judge's report and recommendation the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996), modified by statute on other grounds , 28 U.S.C. § 636(b)(1) (extending the time to file objections to 14 days).