CASE NO. 2:18-CV-01157
MAGISTRATE JUDGE KATHLEEN KAY
Presently before the court is the Report and Recommendation [doc. 28] of the Magistrate Judge. Plaintiffs have objected to the Report and Recommendation on the basis that the Magistrate Judge improperly relied upon certain evidence which Plaintiffs had moved to strike. After an independent review of the record, a de novo determination of the issues and consideration of the objection filed, the Court determines that the findings in the Report and Recommendation are correct.
While Plaintiffs had filed a Motion to Strike [doc. 14] certain evidence submitted by Defendant, the Magistrate Judge was correct in reviewing that evidence in her analysis of the issues presented. The Fifth Circuit has stated that "there are cases, hopefully few in number, in which a plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine the propriety of joinder. In such cases, the district court may, in its discretion, pierce the pleadings and conduct a summary inquiry." The Court reviewed the evidence submitted by Defendant and finds that it clearly reveals that the limited factual allegations contained in Plaintiffs' complaint which might give rise to a claim against Cheryl Tezeno were incorrect. As such,
IT IS ORDERED that the Court adopts the Report and Recommendation;
IT IS FURTHER ORDERED that the Motion to Remand [doc. 9] filed by Plaintiffs is DENIED, and that all claims against Cheryl Tezeno be DISMISSED WITHOUT PREJUDICE; and
IT IS FURTHER ORDERED that the Motion to Strike [doc. 14] is DENIED.
THUS DONE in Chambers on this 8th day of July, 2019.
Robert R. Summerhays
United States District Judge
Smallwood v. Illinois Cent. R. Co., 385 F.3d 568 (5th Cir. 2004).