United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION & ORDER
H. MILLER UNITED STATES DISTRICT JUDGE.
before the court is a memorandum and recommendation
(“M&R”) filed by Magistrate Judge Nancy Johnson.
Dkt. 252. The Magistrate Judge considered a motion for
summary judgment filed by defendant Andrea Frattini
(“Frattini”) (Dkt. 208), a motion for summary
judgment filed by defendants EpiCentre Development
Associates, LLC (“EDA”), EpiCentre Development
Associates II, LLC, Alianza Financial Services, LLC, Alianza
Holdings, LLC, Vanguard Equity Holdings, LLC, Vantage Equity
Holdings, LLC, Vantage Financial Services, LLC, Vantage Plus
Corp., Vantage Plus Development Company, LLC, Vantage Realty
Holdings VI-X, LLC, Omar Botero, Jr. (“Botero”),
Albert F. Delaney (“Delaney”), and Gilberto
Iragorri (“Iragorri”) (collectively,
“EpiCentre Defendants”) (Dkt. 217), and a motion
for summary judgment filed by defendants PLG Consulting, Ltd.
(“PLG”) and Pierluigi Guiduzzi
(“Guiduzzi”) (Dkt. 218). Having considered the
M&R, the motions, the EpiCentre Defendants' objections
(Dkt. 255), Guiduzzi and PLG's objections (Dkt. 256),
plaintiff's responses (Dkts. 259, 260, 261), and other
relevant materials in the record, the court is of the opinion
that the EpiCentre Defendants, Guiduzzi, and PLG's
objections should be OVERRULED and the M&R
should be ADOPTED IN FULL.
dispositive matters, the court “determine(s) de novo
any part of the magistrate judge's disposition that has
been properly objected to.” See Fed. R. Civ.
P. 72(b)(3). “The district judge may accept, reject, or
modify the recommended disposition; receive further evidence;
or return the matter to the magistrate judge with
instructions.” Id. “When no timely
objection is filed, the court need only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.” Fed.R.Civ.P. 72(b),
Advisory Comm. Note (1983). For non-dispositive matters, the
court may set aside the magistrate judge's order only to
the extent that it is “clearly erroneous or contrary to
law.” Fed.R.Civ.P. 72(a).
Motion for Summary Judgment
shall grant summary judgment when a “movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). “[A] fact is genuinely in dispute
only if a reasonable jury could return a verdict for the
non-moving party.” Fordoche, Inc. v. Texaco,
Inc., 463 F.3d 388, 392 (5th Cir. 2006). The moving
party bears the initial burden of demonstrating the absence
of genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552 (1986).
If the party meets its burden, the burden shifts to the
non-moving party to set forth specific facts showing a
genuine issue for trial. Fed.R.Civ.P. 56(e). The court must
view the evidence in the light most favorable to the
non-movant and draw all justifiable inferences in favor of
the non-movant. Envtl. Conservation Org. v. City of
Dall., Tex., 529 F.3d 519, 524 (5th Cir. 2008).
EpiCentre Defendants filed objections to the Magistrate
Judge's M&R, PLG and Guiduzzi jointly filed objections to
the M&R, and Frattini filed a notice of joinder to both sets
of objections. The background and facts of this dispute
are detailed in the M&R and incorporated herein. Dkt. 252.
EpiCentre Defendants' Objections
EpiCentre Defendants assert the following objections to the
Magistrate Judge's M&R: (1) the Magistrate Judge
misapplied Texas law in finding that there was an issue of
material fact whether Delaney, Botero, Iragorri, and Vantage
Realty owed a fiduciary duty to the plaintiff; (2) the
Magistrate Judge erred in finding a fact issue on the statute
of limitations related to the $11, 000, 000 transaction; and
(3) there is no evidence of fraud, and therefore, related
claims should be dismissed. Dkt. 255.
regard to the breach of fiduciary duty issue, the EpiCentre
Defendants challenge the citation of Allen v. Devon
Energy Holdings, LLC, 367 S.W.3d 355 (Tex. App-Houston
[1st Dist] 2012, pet. granted, judgm't vacated, w.r.m.).
However, the court finds that the part of the case that is
cited was not overruled, is still good law, and supports the
Magistrate Judge's decision that there is a genuine issue
of material fact for the jury to decide whether some of the
EpiCentre Defendants owed a fiduciary duty to plaintiff. To
be clear, the court is aware that, in dicta, another court
stated that as of April 2010, no Texas court had found that
fiduciary duties existed between members of a limited
liability company as a matter of law. See Entertainment
Merchandising Technology, LLC v. Houchin, 720 F.Supp.2d
792, 797 (N.D. Tex. 2010). However, that court acknowledged
in the next sentence that whether such fiduciary duty existed
was typically a question of fact. Therefore, the court agrees
with the Magistrate Judge that whether the EpiCentre
Defendants owed a fiduciary duty to plaintiff is an issue of
fact for the jury.
EpiCentre Defendants' remaining arguments were considered
and discussed by the Magistrate Judge in the M&R, and the
court reviewed the Magistrate Judge's rationale and
conclusions as expressed in the M&R de novo and
ADOPTS them in full.
Guiduzzi and ...