United States District Court, E.D. Texas, Tyler Division
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
D.KERNODLE UNITED STATES DISTRICT JUDGE.
action was referred to United States Magistrate Judge K.
Nicole Mitchell pursuant to 28 U.S.C. § 636. Docket No.
2. The Report and Recommendation of the Magistrate Judge
(Docket No. 95, the “Report”), which contains her
findings, conclusions, and recommendations regarding motions
to dismiss filed by Defendant Frontier Communications
Corporation (“Frontier”) and Defendant Butler
America, LLC (“Butler”) (Docket Nos. 67 &
69), has been presented for consideration. The Report
recommends granting-in-part and denying-in-part both motions.
Docket No. 95. Plaintiff Loco Brands, LLC d/b/a Direct TEK
(“Direct TEK”) filed written objections (Docket
No. 103), to which Butler and Frontier separately responded
(Docket Nos. 107 & 108). Frontier also filed written
objections (Docket No. 106), to which Direct TEK responded
(Docket No. 109). Having conducted a de novo review, the
Court OVERRULES Direct TEK's and
Frontier's objections for the reasons stated herein. The
Magistrate Judge's Report is accordingly
Standard of Review and Reviewability
Court reviews objected-to portions of a Magistrate
Judge's Report and Recommendation de novo. See
Fed. R. Civ. P. 72; 28 U.S.C. § 636(b)(1) (“A
judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings
and recommendations to which objection is made.”). In
conducting a de novo review, the Court examines the entire
record and makes an independent assessment under the law.
Douglass v. United Servs. Auto. Ass'n, 79 F.3d
1415, 1430 (5th Cir. 1996) (en banc), superseded on other
grounds by statute, 28 U.S.C. § 636(b)(1)
(extending the time to file objections from ten to fourteen
Direct TEK's Objections
TEK objects to the dismissal of its civil conspiracy claims
and the denial of its request for leave to amend. Docket No.
103 at 2. Notably, Direct TEK does not assign error to any of
Judge Mitchell's findings or conclusions, but rather
objects to the recommendation “[b]ecause Plaintiff now
has evidence it did not possess at the time the Second
Amended Complaint was filed, and because such evidence
demonstrates a preconceived plan and meeting of the
minds.” Docket No. 103 at 2. In support, Direct TEK
submits the affidavit of Michael Crawford, who “worked
as a telecommunications technician at property owned by
Frontier.” Docket No. 103-1 at ¶ 1.
and Frontier ask the Court to overrule the objection for two
reasons. See Docket Nos. 107 & 108. First,
Defendants contend that an amendment based on the new
allegations in Mr. Crawford's affidavit would be
untimely. See Docket Nos. 107 at 1; 108 at 1-2. The
Court agrees. The time for amending pleadings has passed,
discovery is closed, and Direct TEK has had three
opportunities to state a claim for civil conspiracy against
Defendants. Docket Nos. 107 at 2; 108 at 2. Direct TEK,
moreover, does not offer any substantive reason to justify
its delay. Allowing Direct TEK to amend its pleadings at this
late stage would be unduly burdensome and prejudicial to
Defendants. Judge Mitchell thus correctly denied Direct
TEK's request to replead.
also argue that Mr. Crawford's affidavit does not remedy
the identified deficiencies in Direct TEK's civil
conspiracy claim. Docket Nos. 107 at 2; 108 at 2-4. Again,
the Court agrees. Judge Mitchell found that Direct TEK failed
to state a claim for civil conspiracy because it
“fail[ed] to state a preconceived plan or a time and
place at which the Defendants had a meeting of the
minds.” Docket No. 95 at 16. Nothing in Mr.
Crawford's affidavit fixes that problem. Mr. Crawford
does not assert that there was a preconceived plan between
Butler and Frontier, nor does he specify a time and place at
which Butler and Frontier had a meeting of the minds.
See Docket No. 103-1.
Direct TEK's objections are OVERRULED.
objects to the Report “insofar as it recommends denying
Frontier's Motion to Dismiss as to the two remaining
claims of . . . [Direct TEK]: (1) Tortious Interference with
Contract . .; and (2) Discrimination and Retaliation under 42
U.S.C. § 1981.” Docket No. 106 at 1. The Court
addresses each claim in turn.
Tortious Interference with Contract
state a claim for tortious interference with contract, a
plaintiff must allege: “(1) the existence of a valid
contract subject to interference; (2) that the defendant
willfully and intentionally interfered with the contract; (3)
that the interference proximately caused the plaintiff's
injury; and (4) that the plaintiff incurred actual damage or
loss.” Cmty. Health Sys. Prof'l Servs. Corp. v.
Hansen, 525 S.W.3d 671, 689 (Tex. 2017) (citing
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207 (Tex.
2002)). “To prevail on tortious interference with
contract, a plaintiff must allege the existence of a specific
contract.” Randall v. L-3 Commc'ns Corp.,
2017 WL 412416, at *3 (N.D. Tex. Jan. 31, 2017) (citing
Funes v. Villatoro, 352 S.W.3d 200, 213 (Tex.
App.-Houston [14th Dist.] 2011, pet denied)).
first argues that “Direct TEK failed to specifically
identify any of the technicians [ ] whose contracts it claims
that Frontier willingly and intentionally interfered.”
Docket No. 106 at 2 (citing Randall, 2017 WL 412416
at *3). Rejecting a similar argument by Butler, Judge
Mitchell explained that, “[w]hile Plaintiff has not
described its contracts with its technicians in detail, the
facts alleged are sufficient to support the inference that
contracts existed between Plaintiff and its technicians that
were subject to interference.” Docket No. 95 at 21. The
Court agrees. In its Complaint, Direct TEK alleges that
“Plaintiff contracts with many telecommunications
technicians and places them across the country via its
contracts and business relationships.” Docket No. 55 at
¶ 6. Direct TEK also alleges that it
“placed” technicians with “Butler on a
project for Frontier.” Id. at ¶ 7(e).
Further, Direct TEK alleges that “[t]here was/is an
existing contract between Direct TEK and the technicians ...