United States District Court, N.D. Texas, Fort Worth Division
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
O'CONNOR DISTRICT JUDGE.
United States Magistrate Judge issued a Report and
Recommendation ("R&R") (ECF No. 16) in this
case. The R&R recommended that this Court grant
Defendant's Motion to Dismiss and dismiss with prejudice
Harper's claims against Kroger. Harper filed objections.
See Pl.'s Obj., ECF No. 21. The Court has
conducted a de novo review of those portions of the R&R
to which an objection was made. For the following reasons,
Harper's objections are overruled, and the R&R is
adopted as the findings and conclusions of the Court.
Accordingly, it is ORDERED that Defendant's Amended
Motion to Dismiss (ECF No. 10) is GRANTED.
December 14, 2014, Harper slipped and fell at a Kroger store.
Harper filed her original petition in Texas state court on
December 13, 2016. But she did not effect service on
Kroger's registered agent until February 21, 2017. After
receiving service, Kroger removed this action to this Court
on the basis of diversity jurisdiction. Kroger then filed its
motion to dismiss, arguing that Harper's claims were
barred by the statute of limitations. Harper did not respond
to the motion to dismiss. The magistrate judge issued his
recommendation that Kroger's motion to dismiss be
granted, and Harper now objects. II. ANALYSIS Harper's
first objection is that, in the parties' joint status
report, she did not consent to a magistrate judge hearing
this case, and so the R&R of the magistrate judge should
not be considered. Pl.'s Obj. ¶¶ 1-2, ECF No.
21. But the joint status report asks whether the parties
would consent to a trial before a magistrate judge under 28
U.S.C. § 636(c). The parties' consent is not
required for the Court to designate a magistrate judge to
submit a proposed findings of fact and recommendation under
28 U.S.C. § 636(b)(1)(B). See McCoy v. Pace,
493 Fed.Appx. 494, 495 (5th Cir. 2012). This objection is
next objections are incorporated in her Plaintiffs Response
to Magistrate's Findings, Conclusions and Recommendation
(ECF No. 20). There, Harper argues that the R&R
incorrectly applied Texas law about whether a plaintiff is
diligent in attempting to serve a defendant. See
generally Pl.'s Resp., ECF No. 20. Harper does not
object to the magistrate judge's determination that the
statute of limitations for her claims is two years or that a
plaintiff must not only file a suit within the statute of
limitations but also "use diligence to have the
defendant served with process." Gant v. DeLeon,
786 S.W.2d 259, 260 (Tex. 1990). Here, Harper filed her suit
within the limitations period but did not effect service
until about two months after the limitations period had
Harper objects to is the R&R's finding that Harper
failed, as a matter of law, to exercise due diligence in
attempting service. Pl.'s Resp. ¶ 6, ECF No. 20.
Harper also argues that a two-month delay of service does not
show a lack of diligence under Texas law. Id. ¶
9. But "any unexplained delay constitutes a lack of due
diligence as a matter of law." Hendrix v.
Cornerstone Realty Income Trust, No.
3:06-CV-0596-AH, 2006 WL 2583215, at *3 (N.D. Tex. Aug. 30,
2006) (Sanderson, Mag. J.) (citing Holt v. D 'Hants
State Bank, 993 S.W.2d 237, 241 (Tex. App.-San Antonio
1999, no pet.)). And when "a defendant [ ] has
affirmatively pleaded the defense of limitations, and when
failure to timely serve the defendant has been shown, the
burden shifts to the plaintiff [ ] to explain the
delay." Murray v. San Jacinto Agency, Inc., 800
S.W.2d 826, 830 (Tex. 1990). The magistrate judge looked to
see whether Harper had attempted to explain the lack of
timely service, but found no explanation. See
R&R 4, ECF No. 16. By failing to respond to Kroger's
motion to dismiss,  Harper did not provide any explanation for
the delay and failed to satisfy her burden to show that she
exercised due diligence in service. See Holt, 993
S.W.2d at 241. Accordingly, the Court overrules Harper's
objection that the R&R incorrectly concluded that Harper
failed to exercise due diligence as a matter of law.
Harper's Response to Magistrate's Findings,
Conclusions and Recommendation (ECF No. 20), Harper explains
why the service was delayed and argues she exercised due
diligence. Pl.'s Resp. ¶¶ 12-23, ECF No. 20.
Whether the specific actions Harper took to effect service
constituted due diligence was not before the magistrate
judge, because, at the time that the magistrate judge issued
the R&R, Harper had not responded to Kroger's motion
or attempted to explain the delay in service. Issues and
arguments presented for the first time in an objection to a
report and recommendation need not be considered by the
district court. See Finley v. Johnson, 243 F.3d 215,
219 n.3 (5th Cir. 2001); Imperium (IP) Holdings, Inc. v.
Apple, Inc., 920 F.Supp.2d 747, 752 (E.D. Tex. 2013).
Accordingly, the Court does not consider Harper's
argument about whether she acted diligently.
explain her failure to timely respond to the motion dismiss,
Harper states that she was not notified that the case had
been removed and that she was not served with Kroger's
motion to dismiss. The magistrate judge has considered these
arguments in Harper's Motion for Extension of Time to
File Response (ECF No. 25), but did not find them persuasive,
and denied the motion. See June 28, 2017 Order, ECF
No. 25. For the same reasons, this Court does not believe
Harper is entitled to an extension of time to file her
response, and she cannot attempt to get the same arguments in
through her objections to the R&R.
the foregoing reasons, Harper's objections are
OVERRULED, and the R&R is adopted as the
findings and conclusions of the Court. Accordingly, it is
ORDERED that Defendant's Amended Motion
to Dismiss (ECF No. 10) is GRANTED.
 After the magistrate judge issued the
R&R, Harper moved to file a late response. See
ECF No. 22. The magistrate judge has denied that motion, and
Harper did not object. ECF No. 25. The Court will only
consider the arguments before the ...