United States District Court, S.D. Texas, Brownsville Division
FERNANDO RODRIGUEZ, JR. UNITED STATES DISTRICT JUDGE
March 2018, Plaintiff Isaac Montes started his employment at
Defendant Overhead Corporation. He worked there for a few
days and was then terminated, allegedly because he spoke to
an Overhead executive in English rather than in Spanish.
Montes initially brought suit in a Texas state court against
Overhead, Randall Furbay (an Overhead executive) and Jane Doe
(an unidentified Overhead executive). The state court
dismissed all claims with prejudice. While Montes's
appeal to a Texas court of appeals was pending, Montes filed
the current federal lawsuit against Overhead, Furbay and Doe,
as well as against Kelly Terry (Overhead's Chief
Executive Officer) and the State of Texas. Montes's
causes of action stem from the alleged employment
discrimination he experienced at Overhead, as well as events
related to the state court litigation.
move to dismiss Montes's claims on various grounds.
(Defendants' Amended Motion to Dismiss, Doc. 28;
Defendant State of Texas' Motion to Dismiss
Plaintiff's Second Amended Complaint, Doc. 39 (together,
“Motions to Dismiss”)) Overhead, Furbay and Doe
focus on the state court litigation and argue that res
judicata bars Montes's causes of action. Terry contends
that Montes does not state a claim upon which relief can be
granted. And the State of Texas relies on sovereign immunity
and Younger abstention.
Magistrate Judge issued a Report and Recommendation (Doc. 70)
that capably summarizes Montes's allegations and the
relevant procedural history, and that addresses the
parties' arguments. The Report and Recommendation
recommends that the Court grant both Motions to Dismiss and
dismiss all of Montes's causes of action.
timely filed objections to the Report and Recommendation.
(Objections, Doc. 80)
Court has conducted a de novo consideration of the
Motions to Dismiss, reviewing the parties' briefs, the
record in the case and the applicable law. Based on its
review, the Court agrees with the conclusions in the Report
objections, Montes largely re-urges the arguments he
presented to the Magistrate Judge in opposition to the
Motions to Dismiss. The Court adopts the Report and
Recommendation as to those arguments.
presents two new grounds that warrant comment. First, Montes
argues that a footnote in the Report and Recommendation
noting the possible identity of Montes's unpaid legal
advisor calls into question the Magistrate Judge's
“objectivity”. (Objections, Doc. 80, 2 (citing
Report & Recommendation, Doc. 70, 14 n.7)) The Court
rejects this argument as frivolous. The footnote evidences no
absence of objectivity, and the Report and Recommendation in
its analysis places no weight on the information in the
footnote. Second, Montes argues that the
Rooker-Feldman doctrine does not apply to his
lawsuit. (Objections, Doc. 80, 5-6) The Report and
Recommendation, however, does not rely on this doctrine,
applying instead the Younger abstention doctrine. As
a result, this objection is irrelevant and need not be
Court also notes that in his objections, Montes again argues
that res judicata should not apply because his appeal of the
state court's dismissal remained pending. (Id.
at 4-5) In mid-November, however, after Montes filed his
objections, the Texas appellate court ruled on the appeal,
affirming the dismissal of Montes's claims. See
Montes v. Overhead, Case No. 13-19-18-CV, 2019 WL
5997508 (Tex. App.-Corpus Christi Nov. 14, 2019, no pet. h.)
(mem. op.). This decision only re-affirms the application of
res judicata to Montes's causes of action against
Overhead, Furbay and Doe.
Montes requests leave to amend his Second Amended Complaint
“to name individual defendants as to the state
constitutional issues and as to Overhead in the Retaliation
claim.” (Objections, Doc. 80, 4) As noted in the Report
and Recommendation, however, granting leave to amend as to
the state constitutional issues would be futile because of
the Younger abstention doctrine's application.
And Montes fails to suggest any proposed amendments that
would enable his retaliation claim to survive dismissal as to
any possible defendant. Under these circumstances, the Court
denies leave to amend. See, e.g., Stripling v. Jordan
Prod. Co., LLC, 234 F.3d 863, 872 (5th Cir. 2000)
(“It is within the district court's discretion to
deny a motion to amend if it is futile.”).
the Court ADOPTS the Report and
Recommendation. It is:
that Defendants' Amended Motion to Dismiss (Doc. 28) is
that Isaac Montes's claims against Overhead Corporation,
Randall Furbay and Jane Doe are dismissed with prejudice
based on res judicata;
that Isaac Montes's claims against Kelly Terry are
dismissed with prejudice for failure to state a ...