United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller United State District Judge
Pending 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 Delta Air Lines, Inc.
(“Delta”) (Dkt. 60). Id. Having
considered the M&R, the motion, plaintiff Kiante
Butler's objections (Dkt. 127), defendant Delta's
objections (Dkt. 128), Butler's response (Dkt. 130),
Delta's response (Dkt. 129), and other relevant materials
in the record, the court is of the opinion that Butler's
objections and Delta's objections should be
SUSTAINED IN PART AND OVERRULED IN PART and
that the M&R should be ADOPTED IN FULL.
Also pending is Butler's motion to consolidate (Dkt.
123). The court is of the opinion that the motion to
consolidate should be DENIED.
A. Magistrate Judge
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).
and Delta both filed objections to the M&R.
contends that he should be able to designate his experts past
the deadline, and he takes issue with the fact that the court
granted summary judgment as to attorneys' fees because
Butler failed to designate an expert witness to testify,
stating that the court did this on its own accord. Dkt. 130.
However, in fact, Delta did move for summary judgment on the
ground that Butler failed to designate an expert on
attorneys' fees. Dkt. 60 at 11. As the Magistrate Judge
explained in the order denying Butler's subsequent motion
to designate experts, Butler had many opportunities at
earlier points in time to designate experts, was on notice of
this failure, and the deadlines for discovery and designation
of expert witnesses has long passed. See Dkt. 132.
Therefore, Butler's objections are
objects to the fact that the court denied summary judgment on
Butler's claims for breach of contract and promissory
estoppel. Dkt. 128. The thrust of Delta's objections
focuses on alleged plans by Butler's family members to
permanently assume custody of A.B. from Butler upon
A.B.'s arrival in Houston. Id.
Butler's breach of contract claim, Delta argues that
Butler cannot prove that his damages were caused by
Delta's breach. Id. Delta contends that even if
A.B. had been released to Butler's cousin, Shantel
Pierce, as Butler intended, A.B. would not have been returned
by Butler's family, and he would have had to go to court
to retrieve her. Id. However, Delta's objection
ignores the fact that the Magistrate Judge found that this
case may fall under the limited exception allowing Butler to
seek mental anguish damages for his breach of contract claim.
Dkt. 124 at 19. Butler averred that Delta's actions
caused him mental anguish, stating that his mental health
issues “were worsened as a ...