United States District Court, S.D. Texas, Corpus Christi Division
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
GONZALES RAMOS, UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff Ricardo Adame's Motion for Relief
from Final Judgment and Order (D.E. 49), seeking relief under
Fed.R.Civ.P. 60(b). Plaintiff claims that his former
supervisor, Refugio County Sheriff Robert Bolcik, made a
statement to a former co-worker, Timothy Lee Dickey, which
substantiates his racial discrimination claim. Plaintiff did not
discover this statement, which was allegedly made prior to
his filing this action, until after this Court issued
judgment in this case. On December 11, 2017, United States
Magistrate Judge Jason B. Libby issued a Memorandum and
Recommendation (M&R) recommending that the Court deny
Plaintiff's motion. D.E. 51. Plaintiff timely objected.
was informed in a Notice to Parties following the substance
of the M&R that it was subject to adoption by this Court
absent objections to the recommendations. D.E. 51, p. 11.
Rule 72(b) requires that objections be specific. See
SciCo Tec GmbH v. Boston Scientific Corp., 599 F.Supp.2d
741, 743 (E.D. Tex. 2009) (nonspecific, conclusory objections
“are no better than a complete failure to
object”). It would defeat the judicial efficiency
purposes of Magistrate Judge review to require a de novo
reconsideration of the entirety of an M&R without
objections largely take the form of general discussions of
the law (regarding the standards of review both on summary
judgment and under Rule 60) and the facts (regarding both the
merits and the discovery of the statement made to Dickey). He
further requests to incorporate by reference material set out
in prior filings. However, such briefing does not advise the
Court of any particular error in the Magistrate Judge's
general briefing fails to satisfy the specific-objection
requirement of Rule 72(b). Even though the briefing may
contain hints of objections, it is not for the Court to sift
through and formulate those objections for Plaintiff.
Malacara v. Garber, 353 F.3d 393, 405 (5th Cir.
2003). Except as addressed below, the Court will therefore
disregard any briefing not directed to a specific objection.
Court's review of Plaintiff's filing reveals only two
explicitly stated objections:
1. General Objection: The M&R's “Factual and
Procedural Background” describes the case under the
wrong standard, failing to draw inferences in favor of
Plaintiff and giving insufficient weight to evidence of
2. Rule 60(c) Objection: The M&R errs in treating August
18, 2017, as the date on which Plaintiff's counsel became
aware of the newly discovered evidence because counsel could
not act on the evidence until Dickey agreed to sign his
affidavit making the matter admissible.
intent to lodge a third objection clearly emerges from his
filing, so the Court will also review the M&R's
recommendation to deny relief on the grounds that Plaintiff
did not meet the diligence requirement from Rule 60(b)(2).
The Court deems waived any objections to the M&R's
recommendation to deny relief under the remaining subsections
of Rule 60(b).
Objection to Factual and Procedural Background
objects to the M&R's “Factual and Procedural
Background” discussion “because it fails to
properly consider plaintiff's evidence” and
“fails to draw the inferences from the evidence in his
favor.” See D.E. 52, p. 1. He also devotes
much of his filing to recounting facts that were already in
the record. Id. at 1-2, 7-8. Plaintiff's
objection is misplaced, as he is not entitled to inferences
in his favor under Rule 60(b), the authority under which he
now must proceed.
burden of proof to satisfy the requirements of Rule 60(b)
lies on Plaintiff as movant, and the matter is entrusted to
the Court's discretion. United States v. Harrison
Cty., Miss., 463 F.2d 1328, 1330 (5th Cir. 1972) (burden
of proof on Rule 60(b) movant); Delgado v. Shell Oil
Co., 231 F.3d 165, 182 (5th Cir. 2000) (Rule 60(b)
standard of review is abuse of discretion). Nothing in the
standard of review suggests that, on a Rule 60 motion,
Plaintiff is entitled to any inferences in his
the factual recitation to which Plaintiff objects merely
summarizes the procedural posture of the litigation and the
Court's prior holdings. It does not relate to his claim
of newly discovered evidence or the issue of due diligence
and timeliness in having failed to discover the evidence and
present his motion sooner. The Court finds no error with the
M&R's discussion of the facts, nor is a Rule 60(b)
motion “the proper vehicle for rehashing old
arguments.” Frazier v. Map Oil Tools, Inc.,
725 F.Supp.2d 597, 609 (S.D. Tex. 2010) (quoting
Resolution Trust Corp. v. Holmes, 846 F.Supp. 1310,
1316 (S.D. Tex. 1994)) (internal quotation marks omitted).
This objection is OVERRULED.