1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

CHARLES DAVID PERRY,

Plaintiff,

v. 

KNOPP NURSING HOME, INC., ET 

AL.,

Defendants.

§

§

§

§

§

§

§

 No. 1:20-CV-386-RP

REPORT AND RECOMMENDATION OF

THE UNITED STATES MAGISTRATE JUDGE

TO THE HONORABLE ROBERT PITMAN

UNITED STATES DISTRICT JUDGE:

Before the court are Defendants’ Motion to Dismiss for Lack of Subject-Matter Jurisdiction 

and Failure to State a Claim (Dkt. #5), Defendants’ Motion to Dismiss for Forum Non Conveniens 

(Dkt. #6), and all related briefings. See Dkt. #10, #11.

1 After reviewing the pleadings, relevant 

case law, and the entire record, the undersigned issues the following Report and Recommendation 

to the District Court.

I. BACKGROUND

This lawsuit arises from the alleged underpayment of Plaintiff Charles David Perry 

(“Perry”) by his employers, Defendants Knopp Nursing Home, Inc., Knopp Retirement Center, 

Inc., Knopp Healthcare & Rehab Center, Inc., Knopp Assisted Living Center, Inc., Luckenbach 

Apartments, Inc., and Knopp Nursing & Rehab Center, Inc. (“Knopp Defendants”). Dkt. #1 

(Complaint).2 Perry worked continuously for Knopp Defendants from 1999 to 2018, at which point 

1 These Motions were referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636(b), 

Rule 72 of the Federal Rules of Civil Procedure, and Rule 1 of Appendix C of the Local Rules of the United States 

District Court for the Western District of Texas. 

2 Perry alleges he was jointly employed by Knopp Defendants and that Knopp Defendants are “all owned by the 

same set of individuals providing substantially similar services.” Dkt. #1 at 5. 

Case 1:20-cv-00386-RP Document 17 Filed 12/17/20 Page 1 of 13
2

he was “terminated on demonstratively false accusations.”3 Dkt. #1 at 6. During this time, Perry 

contends he “worked an average of 50 to 60 hours a week” and was supposed to be paid a base 

salary of $25 an hour and an overtime salary of $37 an hour. Id. at 6, 8. However, upon being 

terminated on March 15, 2018, Perry alleges he “noticed that he was being paid substantially less 

than what he should have been making.” Id. at 6. Specifically, Perry contends that while he was 

paid only $10,250 in 2017, he should have made “about $52,000” via his base salary alone. Id. 

Additionally, Perry alleges the Knopp Defendants impermissibly sought a loan under his name in 

the sum of $68,000, falsified documents in requesting this loan, and then reinvested the loan in 

Knopp Defendants. Id. at 7. Based on the foregoing conduct, Perry levies claims based on the Fair 

Labor Standards Act (“FLSA”), breach of contract, quantum meruit, and fraud. See id. at 7-10. 

On June 12, 2020, Knopp Defendants filed their Motion to Dismiss for Lack of SubjectMatter Jurisdiction and Failure to State a Claim. Dkt. #4, #5. As an initial matter, it appears Knopp 

Defendants inadvertently filed this motion twice. See id. Accordingly, the District Judge should 

DISMISS Dkt. #4, the duplicate, as MOOT. 

In their Motion to Dismiss, Knopp Defendants argue the court lacks subject-matter 

jurisdiction over Perry’s FLSA claim because Perry lacks standing. See Dkt. #5. Additionally, 

Knopp Defendants argue Perry failed to state a claim upon which relief can be granted, his 

Complaint does not provide fair notice of his claims, and his FLSA claim is barred by the 

applicable statute of limitations. Id. Perry filed a response, but Knopp Defendants failed to file a 

reply. See Dkt. #10.

On June 12, 2020, Knopp Defendants filed their Motion to Dismiss for Forum Non 

Conveniens, arguing the lawsuit should be dismissed because an available and alternative forum 

3 Perry also notes he divorced Jane Perry, Knopp Defendants’ owner and registered agent, sometime after January 

of 2018. Dkt. #1 at 6. 

Case 1:20-cv-00386-RP Document 17 Filed 12/17/20 Page 2 of 13
3

exists in the 216th District Court in Kerr and Gillespie Counties, Texas. See Dkt. #6. Perry filed a 

response and, again, Knopp Defendants failed to file a reply. See Dkt. #11.

II. LEGAL STANDARD

Federal courts are tribunals of limited subject matter jurisdiction and may only entertain a 

case that fits within the judicial power of Article III of the U.S. Constitution and a statutory grant 

of subject matter jurisdiction. 13D Charles Alan Wright, Arthur R. Miller, Federal Practice &

Procedure § 3567 (3d ed. 2008). Rule 12(b)(1) allows a party to move for dismissal of an action 

for lack of subject matter jurisdiction. See FED. R. CIV. P. 12(b)(1). The party asserting that subject 

matter exists bears the burden on a 12(b)(1) motion. Ramming v. United States, 281 F.3d 158, 161 

(5th Cir. 2001). In deciding a motion to dismiss pursuant to Rule 12(b)(1), the court may consider: 

(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the 

record; or (3) the complaint supplemented by undisputed facts, plus the court's resolution of 

disputed facts. Freeman v. United States, 556 F.3d 326, 334 (5th Cir. 2009). Subject matter 

jurisdiction includes the “irreducible constitutional minimum of standing.” Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560-61 (1992). To establish standing, the Plaintiff must allege (1) that he 

has suffered an injury in fact, which is both (a) concrete and particularized and (b) actual or 

imminent, as opposed to conjectural or hypothetical; (2) the existence of a causal connection 

between the asserted injury-in-fact and the conduct complained of – the injury has to be fairly 

traceable to the challenged action of the defendant and not the result of the independent action of 

some third party not before the court; and (3) it must be likely, as opposed to merely speculative, 

that the injury will be redressed by a favorable decision. Id. Particularized means “that the injury 

must affect the plaintiff in a personal and individual way.” Id. at 560 n.1. 

Case 1:20-cv-00386-RP Document 17 Filed 12/17/20 Page 3 of 13
4

When evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6) the 

complaint must be liberally construed in favor of the plaintiff and all facts pleaded therein must be 

taken as true. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 

163, 164 (1993); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). Although Federal Rule of 

Civil Procedure 8 mandates only that a pleading contain a “short and plain statement of the claim 

showing that the pleader is entitled to relief,” this standard demands more than unadorned 

accusations, “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” 

or “naked assertion[s]” devoid of “further factual enhancement.” Bell Atl. v. Twombly, 550 U.S. 

544, 555-57 (2007). Rather, a complaint must contain sufficient factual matter, accepted as true, 

to “state a claim to relief that is plausible on its face.” Id. at 570. The Supreme Court has made 

clear this plausibility standard is not simply a “probability requirement,” but imposes a standard 

higher than “a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009). The standard is properly guided by “[t]wo working principles.” Id. First, 

although “a court must ‘accept as true all of the allegations contained in a complaint,’ that tenet is 

inapplicable to legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action, 

supported by mere conclusory statements, do not suffice.” Id. at 678. Second, “[d]etermining 

whether a complaint states a plausible claim for relief will . . . be a context-specific task that 

requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. 

Thus, in considering a motion to dismiss, the court must initially identify pleadings that are no 

more than legal conclusions not entitled to the assumption of truth, then assume the veracity of 

well-pleaded factual allegations and determine whether those allegations plausibly give rise to an 

entitlement to relief. If not, “the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader 

is entitled to relief.’” Id. at 679 (quoting FED. R. CIV. P. 8(a)(2)).

Case 1:20-cv-00386-RP Document 17 Filed 12/17/20 Page 4 of 13
5

III. ANALYSIS

Knopp Defendants have moved to dismiss Perry’s claims for lack of subject matter 

jurisdiction under Rule 12(b)(1) and for failure to state a claim under Rule 12(b)(6). Because 

Knopp Defendants seek dismissal under Rule 12(b)(1), the court must first address their 

jurisdictional attack. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

A. Rule 12(b)(1)

Knopp Defendants argue this court lacks subject matter jurisdiction because Perry lacks 

standing to bring his FLSA claim.4 Specifically, Knopp Defendants argue that: (1) whether or not 

Perry meets the FLSA’s requirements for asserting a claim is a standing issue that goes directly to 

this court’s jurisdiction, (2) Perry does not have standing because he has not properly alleged he 

is an “employee” within the meaning of the FLSA; and (3) Perry in any case cannot bring an FLSA 

claim because he falls under the “bona fide executive” exemption pursuant to 29 U.S.C. § 

213(a)(1). See Dkt. #4. 

The FLSA contains the federal standards for minimum wage and overtime payment for 

public and private employees. To establish a claim for compensation under the FLSA, plaintiffs 

must prove they were “employees engaged ‘in the production of goods for commerce’ (‘individual 

coverage’) or ‘employed in an enterprise engaged in commerce or in the production of goods for 

commerce’ (‘enterprise coverage’).” Martin v. Bedell, 955 F.2d 1029, 1032 (5th Cir. 1992) (citing 

29 U.S.C. § 207(a)(1)). Therefore, “[t]o establish that his employer is subject to the requirements 

of the FLSA, the plaintiff employee has the burden to show that there is coverage, whether 

4 Perry argues this court has federal question jurisdiction over his FLSA claim and pendent jurisdiction over his 

remaining claims. See Dkt. #1 at 4-5. Accordingly, subject matter jurisdiction would be lacking if Perry lacked 

standing to bring his FLSA claim. 

Case 1:20-cv-00386-RP Document 17 Filed 12/17/20 Page 5 of 13
6

individual or enterprise.” Mendoza v. Detail Solutions, LLC., 911 F. Supp. 2d 433, 439 (N.D. Tex.

2012) (citing D.A. Schulte, Inc. v. Gangi, 328 U.S. 108, 120 (1946)). 

However, whether such coverage exists under the FLSA is not a jurisdictional issue to be 

resolved on a Rule 12(b)(1) motion. As numerous courts within the Fifth Circuit have held, “[t]he 

court's subject matter jurisdiction does not turn on whether [the plaintiff] has alleged facts that 

demonstrate coverage under FLSA but on whether his well-pleaded complaint asserts a federalquestion cause of action.” Morrow v. J W Electric, Inc., No. 3:11–CV–1988–D, 2011 WL 

5599051, at *1 (N.D. Tex. Nov. 16, 2011); see also Cano v. Ron's Organics, Inc., No. 3:13-CV3650-B, 2015 WL 1443077, at *2 (N.D. Tex. Mar. 30, 2015) (rejecting the defendants’ argument 

that requirements under the FLSA go to whether a litigant has jurisdictional standing); Devore v. 

Lyons, No. 3:16-CV-01083-BN, 2016 WL 6277810, at *5 (N.D. Tex. Oct. 25, 2016) (“The court’s 

subject matter jurisdiction does not turn on whether Plaintiff has alleged facts that demonstrate 

coverage under the FLSA, a federal statute, but on whether her well-pleaded complaint asserts a 

federal-question cause of action.”); Lopez–Santiago v. Coconut Thai Grill, No. 3:13–CV–4268–

D, 2014 WL 840052, at *3 (N.D. Tex. Mar. 4, 2014) (finding that “the court must treat enterprise 

coverage as an element of plaintiffs’ claim rather than a jurisdictional prerequisite”). This is largely 

because “[w]hen Congress does not rank a statutory limitation on coverage as jurisdictional, courts 

should treat the restriction as nonjurisdiction in character.” Arbaugh v. Y & H Corp., 546 U.S. 500, 

516 (2006). As the above courts correctly determined, nothing in the “employee” definition of 

Section 203 nor the “exemptions” listed in Section 213 “suggest[] that district courts are deprived 

of subject matter jurisdiction to hear claims implicating the exemptions” or definitions under these 

provisions. Morgan v. Rig Power, Inc., No. 7:15-CV-73-DAE, 2015 WL 6506953, at *3 (W.D. 

Tex. Oct. 27, 2015) (dismissing a Rule 12(b)(1) motion to dismiss because “[w]hether Plaintiffs 

Case 1:20-cv-00386-RP Document 17 Filed 12/17/20 Page 6 of 13
7

are subject to [a Section 213] exemption is . . . not a jurisdiction question, but rather one that goes 

to the merits of the case, and may be appropriately addressed at the merits stage”); see Hopkins v. 

Cornerstone Am., 512 F. Supp. 2d 672, 679 (N.D. Tex. 2007), vacated in part on other grounds, 

545 F.3d 338 (5th Cir. 2008) (holding that whether plaintiffs are employees does not affect federalcourt subject-matter jurisdiction but, instead, delineates a substantive ingredient of the plaintiffs’

FLSA claim). 

Here, Perry has asserted a well-pleaded claim for payment and overtime violations under 

the FLSA, thus invoking this Court's federal question jurisdiction. See 28 U.S.C. § 1331

(establishing that “district courts shall have original jurisdiction of all civil actions arising under 

the Constitution, laws, or treaties of the United States.”); Dkt. #1. Specifically, Perry has pleaded 

he worked an average of 50 to 60 hours a week, he was paid as a W-2 employee of Knopp 

Defendants, and he was paid only $10,250 in 2017. Id. at 5-7. Therefore, to the extent Knopp 

Defendants’ Motion is based on the alleged lack of standing, it is without merit and should be 

DENIED. Dkt. #5. 

B. Rule 12(b)(6) – Fair Notice 

Knopp Defendants argue that Perry’s Complaint “does not provide [them] notice of 

[Perry]’s claim.” Dkt. #5 at 7. In particular, Knopp Defendants allege Perry only alleges 

“conclusionary statements” that “fail to provide any notice as each alone or together do [sic] not 

prove that [Perry] was a covered employee.” Id. at 7-8. Additionally, Knopp Defendants argue that 

“[e]ven if these allegations are assumed to be true, they do not show a right to relief that is more 

than mere speculation.” Id. Because Knopp Defendants’ fair notice argument repeatedly references 

the FLSA’s “employee” requirement, the court construes this argument as pertaining only to 

Perry’s FLSA claim. 

Case 1:20-cv-00386-RP Document 17 Filed 12/17/20 Page 7 of 13
8

Under Federal Rule of Civil Procedure 8’s notice requirements, “defendants in all lawsuits 

must be given notice of specific claims against them.” Anderson v. U.S. Dept. of Housing & Urban 

Development, 554 F.3d 525, 528 (5th Cir. 2008) (citing FED. R. CIV. P. 8(a)(2)). While a plaintiff 

need not plead specific facts, the complaint must provide “the defendant fair notice of what the . . 

. claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555. If the complaint lacks 

facts necessary to put a defendant on notice of what conduct supports the plaintiff's claims against 

it, the complaint is inadequate to meet the notice pleading standard. Anderson, 554 F.3d at 528. 

The complaint must not only name the laws which the defendant has allegedly violated, but also 

allege facts about the conduct that violated those laws. Id.

A plaintiff bears the burden of establishing that he is an employee under the FLSA. See 

Sobrinio v. Med. Ctr. Visitor's Lodge, Inc., 474 F.3d 828, 829 (5th Cir. 2007). The FLSA defines 

“employee” as “any individual employed by an employer.” 29 U.S.C. § 203(e). Because of the 

circular nature of that definition, the U.S. Supreme Court has provided a practical test for 

determining whether a specific individual is an “employee” for FLSA purposes by stating that 

“employees are those who as a matter of economic reality are dependent upon the business to 

which they render service.” Bartels v. Birmingham, 332 U.S. 126, 130 (1947); see also Usery v. 

Pilgrim Equip. Co., Inc., 527 F.2d 1308, 1311 (5th Cir. 1976). Although the FLSA is to be applied 

broadly, “it was not intended to stamp all persons as employees, who, without any express or 

implied compensation agreement, might work for their own advantage on the premises of another.” 

Walling v. Portland Terminal Co., 330 U.S. 148, 152 (1947). 

Here, taking all well-pleaded facts in the Complaint as true, Perry has properly alleged a 

claim under the FLSA. Perry pleads he was employed by Knopp Defendants, “continuously 

[worked] for Knopp [Defendants] from around September 16, 1999 to March 15, 2018, “gave his 

Case 1:20-cv-00386-RP Document 17 Filed 12/17/20 Page 8 of 13
9

best efforts to the company and its residents “[f]rom the moment he began his employment for 

[Knopp Defendants],” “work[ed] sunup to sundown making sure that the residents of [Knopp 

Defendants] received the best care possible,” worked an average of 50-60 hours per week, was 

supposed to be paid a base rate of $25 per hour and an overtime rate of $37 per hour, and made 

only $10,250 in 2017 as evidenced by his 2017 W-2. Regardless of Knopp Defendants’ misguided 

assertion that Perry failed to “prove” he was an employee, these well-pleaded facts are not 

conclusory nor speculative and undoubtedly satisfy the pleading requirement at this stage of the 

proceedings. Furthermore, given Perry’s well-pleaded facts and the organization of his Complaint, 

no reasonable argument can be made that Knopp Defendants did not have fair notice of Perry’s 

pleaded claims. 

Thus, Knopp Defendants’ Motion should be DENIED so far as it seeks dismissal under 

the fair notice doctrine and argues Perry has failed to state a cognizable claim. 

C. Rule 12(b)(6) – Statute of Limitations

Knopp Defendants argue this court should dismiss Perry’s FLSA claim on the grounds that 

it is barred by the FLSA’s two-years statute of limitations. See 29 U.S.C. § 255(a); Dkt. #5 at 8.5

Perry responds that the FLSA provides a three-year period for “willful violation[s]” of the FLSA. 

Dkt. #10 at 11. Perry argues he has pleaded such a willful violation by alleging: (1) Knopp 

Defendants told him he would be paid hourly, (2) Knopp Defendants “would falsify records [and 

5 Title 29 U.S.C. § 225(a) states:

Any action commenced on or after May 14, 1947, to enforce any cause of action for unpaid 

minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor 

Standards Act of 1938, as amended [29 U.S.C.A. § 201 et seq.] . . . (a) . . . may be commenced 

within two years after the cause of action accrued, and every such action shall be forever barred 

unless commenced within two years after the cause of action accrued, except that a cause of action 

arising out of a willful violation may be commenced within three years after the cause of action 

accrued . . . .

29 U.S.C. § 225(a) (emphasis added). 

Case 1:20-cv-00386-RP Document 17 Filed 12/17/20 Page 9 of 13
10

loan documents] to claim that they allegedly paid [Perry] the wages he was promised on certain 

occasions,” and (3) the Department of Labor “has in the past gotten involved to rectify [Knopp 

Defendants’] failure to pay overtime to their employees.” Dkt. #1 at 6-7. As noted above, Knopp 

Defendants failed to file a reply, but in their initial motion posit that Perry’s Complaint “fails to 

‘sketch’ any actions by [Knopp Defendants] that demonstrate a ‘willful’ violation of the FLSA.” 

Dkt. #4 at 9. Both parties appear to agree that Perry’s FLSA claim would be barred by the twoyear statute of limitation period, but that he would be able to recover from “April 13, 2017 to 

March 15, 2018” if the three-year period is applied. See Dkt. #10 at 12. 

“While the court can consider a statute of limitations argument on a Rule 12(b)(6) motion 

to dismiss, such motion cannot be granted unless the limitations defense is clear on the face of the 

complaint.” Rice v. Interactive Learning Sys., Inc., No. 3:07-CV-0725-G, 2007 WL 2325202, at 

*2 (N.D. Tex. Aug. 10, 2007) (citing Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003), cert. 

denied, 540 U.S. 1161 (2004)). Applying this rule, courts look to the facts pleaded to determine 

whether a plaintiff has alleged a “willful violation” sufficient enough to satisfy a Rule 12(b)(6) 

inquiry. See id. (“Because the limitations defense is not clear on the face of the complaint, the 

motion to dismiss is denied.”); Kharb v. Ericsson, Inc., No. 4:17-CV-619, 2019 WL 1198399, at 

*4 (E.D. Tex. Mar. 14, 2019) (“allegations of willfulness under the FLSA are subject to Rule 

12(b)(6) motions; and mere allegations that an employer acted willfully without any additionally 

information are inadequate”). 

Here, Perry’s Complaint is not limited to “mere allegations,” but rather contains 

specifically pleaded facts that, if determined true, could permit a fact finder to determine that 

Knopp Defendants’ conduct constitutes a “willful violation.” Particularly, a fact finder could 

plausibly determine the following pleaded conduct amounts to a willful violation: a finding that 

Case 1:20-cv-00386-RP Document 17 Filed 12/17/20 Page 10 of 13
11

Knopp Defendants agreed to pay Perry a specific overtime amount, dramatically underpaid him, 

and then continued to underpay Perry while at the same time falsifying documents to hide the 

related FLSA violations.

Consequently, Knopp Defendants’ Motion to Dismiss for Lack of Subject-Matter 

Jurisdiction and Failure to State a Claim should be DENIED. Dkt. #5.6

D. Forum Non Conveniens 

Knopp Defendants last argument is the court should dismiss this entire suit under the 

doctrine of forum non conveniens. Dkt. #6. Specifically, Knopp Defendants contend the court 

should dismiss this case because “[Perry’]s suit can be properly heard in the 216th District Court 

of Gillespie/Kerr County, Texas[,] and private and public interests would be better served if

[Perry’s] case [was] heard in the 216th District Court.” Id. at 6. Perry responds by arguing that 

Knopp Defendants have utterly failed to meet their burden. Dkt. #11. 

“A federal court has discretion to dismiss a case on the ground of forum non conveniens

when an alternative forum has jurisdiction to hear the case, and trial in the chosen forum would 

establish oppressiveness and vexation to a defendant out of all proportion to plaintiff's 

convenience, or the chosen forum is inappropriate because of considerations affecting the court's 

own administrative and legal problems.” Manufacturers All. Ins. Co. v. B&B Transp., LLC, 1:18-

CV-13-RP, 2018 WL 7288577, at *4 (W.D. Tex. Dec. 14, 2018) (Pitman, J.) (internal citations 

omitted). “A defendant invoking forum non conveniens ordinarily bears a heavy burden in 

opposing the plaintiff's chosen forum,” and “[t]he plaintiff's choice of forum should rarely be 

6 Because the undersigned finds in favor of Perry on all arguments contained in Knopp Defendants’ Motion to 

Dismiss, Dkt. #5, it does not address Perry’s objections to the evidence proffered in Knopp Defendants’ Motion. See 

Dkt. #10 at 12. That said, the court has not looked outside of the pleadings in conducting its Rule 12(b)(6) inquiry and 

has not converted any motion to a motion for summary judgment. 

Case 1:20-cv-00386-RP Document 17 Filed 12/17/20 Page 11 of 13
12

disturbed.” Id. (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (internal citations 

omitted)).

Upon review, Knopp Defendants have not met their burden. Besides conclusory statements 

like “[t]he 216th District Court . . . will be more convenient for the litigants and witnesses” and 

“[p]ractical considerations make the trial of this case more efficient and less expensive in the 216th 

District Court,” Knopp Defendants do not provide any concrete support sufficient to meet their 

heavy burden. Therefore, Knopp Defendants’ Motion to Dismiss for Forum Non Conveniens 

should be DENIED. Dkt. #6. 

IV. RECOMMENDATION

For the reasons given above:

• IT IS RECOMMENDED that Defendants’ Motion to Dismiss for Lack of 

Subject-Matter Jurisdiction and Failure to State a Claim (Dkt. #5) be DENIED.

• IT IS FURTHER RECOMMENDED that Defendants’ Motion to Dismiss for 

Forum Non Conveniens (Dkt. #6) be DENIED.

• IT IS FURTHER RECOMMENDED that Defendants’ Dkt. #4 be MOOTED as 

a duplicate of Dkt. #5. 

V. OBJECTIONS

The parties may file objections to this Report and Recommendation. A party filing 

objections must specifically identify those findings or recommendations to which objections are 

being made. The District Court need not consider frivolous, conclusive, or general objections. See 

Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).

A party’s failure to file written objections to the proposed findings and recommendations 

contained in this Report within fourteen (14) days after the party is served with a copy of the 

Case 1:20-cv-00386-RP Document 17 Filed 12/17/20 Page 12 of 13
13

Report shall bar that party from de novo review by the District Court of the proposed findings and 

recommendations in the Report and, except upon grounds of plain error, shall bar the party from 

appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the 

District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); 

Douglass v. United Services Automobile Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).

SIGNED December 17, 2020.

_______________________________

MARK LANE

UNITED STATES MAGISTRATE JUDGE

Case 1:20-cv-00386-RP Document 17 Filed 12/17/20 Page 13 of 13