Opinion
Civil Action No. 3:03-CV-1750-D.
March 28, 2005
ORDER
After making an independent review of the pleadings, files, and records in this case, and the February 25, 2005 findings and recommendation of the magistrate judge, the court concludes that the findings and conclusions are correct and are therefore adopted as follows.
In the magistrate judge's findings and recommendation, he points, among other deficiencies, to the absence of competent evidence to support plaintiff Norman Wade Yoes' ("Yoes'") allegations in this case. In his response to the findings and recommendation, Yoes relies on an affidavit executed March 3, 2005, which means it was not prepared — and thus not produced — until after the magistrate judge filed his findings and recommendation. "A party is not entitled to have a summary judgment set aside on the basis of evidence not produced prior to summary judgment unless he demonstrates a valid excuse for the failure to produce the evidence prior to the court's summary judgment ruling." Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1052 (5th Cir. 1996) (addressing motion for new trial) (citing Waltman v. Int'l Paper Co., 875 F.2d 468, 473-74 (5th Cir. 1989)) (holding that district court properly refused to review new evidence because plaintiff failed to allege or show any reason for failing to provide evidence before summary judgment was granted). Yoes has not explained why he could not have introduced his own affidavit evidence before the magistrate judge filed his findings and recommendation. If the court were to allow this evidence to be introduced now, where Yoes has failed to offer a satisfactory explanation for not submitting it in response to defendant's motion, the procedure of referring motions for summary judgment to magistrate judges for recommendation would be effectively nullified, because a nonmovant could wait until the magistrate judge pointed out the legal holes in his case and then attempt for the first time to fill them. Even if the recommendation procedure were not rendered feckless, it would likely result in wasting the magistrate judge's time addressing a record that is incomplete.
SO ORDERED.