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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

KIOLBASSA PROVISION CO., INC.,

 Plaintiff,

vs.

TRAVELERS PROPERTY CASUALTY 

COMPANY OF AMERICA,

 Defendant.

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SA-20-CV-00507-FB

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

To the Honorable United States District Judge Fred Biery: 

This Report and Recommendation concerns Defendant Travelers Property Casualty

Company of America’s Motion for Summary Judgment [#17]. All pretrial matters in this case 

have been referred to the undersigned for disposition pursuant to Western District of Texas Local 

Rule CV-72 and Appendix C [#21], and the undersigned has authority to enter a 

recommendation as to Defendant’s Motion for Summary Judgment pursuant to 28 U.S.C. § 

636(b)(1)(B). 

In reviewing Defendant’s motion, the undersigned has considered Plaintiff’s Response 

[#18], and Defendant’s Reply [#20], as well as Defendant’s Objections to Plaintiff’s summary 

judgment evidence [#19], and the reply [#22] and response [#23] thereto. Having considered 

these written filings, the record in this case, and the governing law, the undersigned

recommends that Defendant’s Motion for Summary Judgment [#17] be granted.

I. Background

The instant case involves an insurance contract dispute between the insured Plaintiff 

Kiolbassa Provision Company and the insurer Defendant Travelers Property Casualty Company

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of America. This case was removed from state court on April 24, 2020. (Notice of Removal 

[#1].) Plaintiff owns and operates a smoked meat business. (Compl. [#1-6] ¶ 8.) Plaintiff 

alleges that on August 7, 2019, Plaintiff placed 49,016 pounds of beef (“Product”) in a

refrigerated trailer, which the parties call a “reefer trailer,” located at Plaintiff’s business to be 

stored for later processing. (Compl. [#1-6] ¶ 11; MSJ Resp. [#18], at 3.) On or about August 10, 

2019, Plaintiff removed the Product from the reefer trailer to discover that all of the Product had 

spoiled due to lack of refrigeration. (Compl. [#1-6] ¶ 11.) Plaintiff submitted a claim to 

Defendant under its policy for “Equipment Breakdown Protection” (“the Policy”) for the full 

value of the spoiled Product, $167,135.52. (Id. at ¶ 9, 12.) Defendant denied coverage, claiming 

that the reefer trailer is a “vehicle,” and the breakdown of a vehicle is not covered under the 

Policy. (Id. ¶ 14.) 

Plaintiff is suing Defendant for a variety of claims including breach of contract, 

violations of Chapters 541 and 542 of the Texas Insurance Code, violations of the Texas 

Deceptive Trade Practices Act, and breach of the common law duty of good faith and fair 

dealing. (Compl. [#1-6] ¶¶ 27–38.) Defendant now moves for summary judgment in its favor on 

all of Plaintiff’s claims.

II. Summary Judgment Standard

Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure 

only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together 

with the affidavits, if any, show that there is no genuine issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 

317, 322 (1986); see also Fed. R. Civ. P. 56(c). A dispute is genuine only if the evidence is such 

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that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986). 

The party moving for summary judgment bears the initial burden of “informing the 

district court of the basis for its motion, and identifying those portions of [the record] which it 

believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 

323. Once the movant carries its burden, the burden shifts to the nonmoving party to establish 

the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio 

Corp., 475 U.S. 574, 587 (1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th 

Cir. 1995). The non-movant must respond to the motion by setting forth particular facts 

indicating that there is a genuine issue for trial. Miss. River Basin Alliance v. Westphal, 230 F.3d 

170, 174 (5th Cir. 2000). The parties may satisfy their respective burdens by tendering 

depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 

(5th Cir. 1992). The Court will view the summary judgment evidence in the light most favorable 

to the non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993). “After the non-movant 

has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find 

for the non-movant, summary judgment will be granted.” Westphal, 230 F.3d at 174. 

III. Summary Judgment Record

Construing the evidence most favorably to the non-movant Plaintiff, the summary 

judgment record establishes the following: 

It is undisputed that Defendant issued a policy of insurance to Plaintiff which contained 

“EnergyMax 21 Equipment Breakdown Protection” form EBT1000808, effective September 9, 

2018 to September 9, 2019. (Policy [#17-1], at 4.) The Policy provided coverage for direct 

damage caused by a “Covered Cause of Loss” to “Covered Property” located at the Covered

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Premises. (Id. at 20.) A “Covered Cause of Loss” is a “Breakdown” to “Covered Equipment.” 

(Id.) A “Breakdown” is defined as the following direct physical loss that causes physical 

damage to “Covered Equipment” and necessitates its repair or replacement: (1) electrical failure 

including arcing; (2) failure of pressure or vacuum equipment; or (3) mechanical failure 

including rupture or bursting caused by centrifugal force. (Id. at 39.) “Covered Equipment” 

means any electrical or mechanical equipment that is used in the generation, transmission, or 

utilization of energy. (Id.) And the provision critical to resolving the summary-judgment motion

states that “Covered Equipment” does not mean any vehicle, aircraft, self-propelled 

equipment or floating vessel, including any “Covered Equipment” mounted on or used 

solely with any vehicle, aircraft, self-propelled equipment, or floating vessel. (Id. at 40.) 

The Policy includes a Spoilage Damage Coverage Extension (SD) of up to $1,000,000. (Id. at 

13.)

Joshua Wenger, a risk consultant for Defendant, conducted the investigation into 

Plaintiff’s insurance claim on August 27, 2019. (Claim Investigation [#17-1], at 136.) Wenger 

concluded that “the starter for the diesel generator that powers the refrigeration unit suffered a 

mechanical failure,” and the “failure of the starter caused the refrigeration unit to stop cooling 

the trailer which caused the spoilage” of the Product. (Id. at 139.) On November 26, 2019, 

Defendant’s claim professional Ron E. Gest sent a letter to Plaintiff’s Vice President of 

Organizational Development and Finance Michael Johnson denying coverage under the Policy.

(Denial Letter [#17-1], at 140.) Gest informed Johnson of Wenger’s findings and stated that 

there was no coverage under the Policy because the “refrigerated trailer unit is considered a type 

of vehicle and is not considered to be covered equipment per the policy definition.” (Id. at 141.) 

These records are authenticated by Michael Dotson, an Executive General Adjuster for 

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Defendant, who signed a sworn affidavit of authentication on February 24, 2021. (Dotson Aff. 

[#17-1], at 132.) Dotson is the custodian of claim records for Defendant for Claim no. FAC7658 

(Plaintiff’s claim). (Id.)

On December 1, 2020, Plaintiff’s Vice President Johnson was deposed. (Johnson Depo. 

[#17-1], at 73.) Johnson testified that the unit storing the Product was reefer trailer #41704, 

which was “used to store and attached to a tractor for cargo carriage.” (Id. at 80.) Johnson 

testified that Plaintiff uses reefer trailers to deliver product to clients within Texas, to transport 

product from one facility to the other (a couple of blocks away), and for storage. (Id.) Johnson 

testified that using reefer trailers as storage is a “pretty common practice in the meat industry.” 

(Id.) 

Johnson also provided statements through a signed, sworn affidavit, dated March 12, 

2021. (Johnson Aff. [#18-1].)1 Johnson oversees accounting, IT, finance, human resources, and 

risk management for Plaintiff. (Id. at 1.) According to Johnson, during the time the Product was 

stored in the reefer trailer, the trailer “could not move on its own because it was not attached to a 

semi-truck and sat on fixed jack stands that rendered it immobile.” (Id. at 2.) Johnson stated that

“moving this trailer from place to place would otherwise require attaching it to a semi-truck and 

lifting or removing the jack stands.” (Id.) Johnson also stated that Plaintiff “was not using the 

reefer trailer to transport anything during [the time the Product was stored]; instead, [Plaintiff] 

used the reefer trailer as a refrigerated storage unit to store the Product for several days.” (Id. at 

2–3.)

1 Defendant objects to this evidence arguing that it is not relevant, is conclusory, and that there is 

no foundation for its admission. (Def. Objection [#19], at 2.) This objection is overruled. 

Johnson executed his affidavit on behalf of Plaintiff. (Id.) Johnson is a custodian of records for 

Plaintiff and stated that he is familiar with the matters he described in his affidavit by virtue of 

his responsibilities. (Id.) 

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The summary judgment record includes pictures of reefer trailer #41707. (Photo. [#17-

1], at 115, 117.) The pictures show a long, white trailer with four wheels under the back of the 

reefer trailer, and metal jacks under the front-middle section of the reefer trailer. A large 

refrigeration unit it attached to the reefer trailer. The record also includes a registration renewal 

receipt for reefer trailer #41707 from the Texas Department of Motor Vehicles. (Registration 

[#17-1], at 118.) The receipt classifies it as a trailer. 

Plaintiff’s summary judgment evidence also includes excerpts from a deposition taken on 

January 22, 2021 of Michael Dotson, a representative of Defendant [#18-6]; Defendant’s Claim 

File Notes [#18-7]; and an email exchange between Defendant’s employees Ron Gest and Kevin 

Locklin on August 22, 2021 [#18-8]. Of this evidence, the item most relevant to the resolution 

of Defendant’s summary judgment motion is the email exchange between Gest and Locklin, 

wherein Locklin tells Gest that if the reefer trailer is “indeed a trailer that is still on wheels and 

not permanently wired, it would be a vehicle and would not be Covered Equipment.” (Def. 

Email [#18-8], at 2.) 

Finally, Plaintiff also submitted evidence concerning a separate insurance policy, called 

the cargo policy,

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issued to Plaintiff by Travelers Lloyds Insurance Company, a different insurer 

than Defendant. (Cargo Policy [#18-2]); Cargo Policy Letter [#18-3]; Cargo Policy Email [#18-

4].) Plaintiff also submitted a claim under this policy, but it was rejected because the property 

was not in transit and therefore not cargo at the time of the loss. (Pl. Resp. [#18], at 5.) 

2 Defendant objects to this evidence, arguing that it is irrelevant. The undersigned need not 

consider the objection, because as is explained in the analysis below, the cargo insurance policy 

has no bearing on the interpretation of the Policy at issue in this case. 

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IV. Analysis

In this lawsuit, Plaintiff asserts that Defendant’s denial of coverage for the spoiled 

Product is a breach of contract, a violation of Chapters 541 and 542 of the Texas Insurance Code, 

a violation of the Texas Deceptive Trade Practices Act, and a breach of the common law duty of 

good faith and fair dealing. Defendant argues that it is entitled to summary judgment on the 

breach of contract claim because the Product spoiled due to a breakdown of the reefer trailer, 

which is a vehicle and is not covered by the Policy, and Plaintiff’s failure to prove breach is fatal 

to its extracontractual claims as well. Plaintiff responds that the reefer trailer is not a vehicle and 

therefore the spoilage is covered by the Policy. In the alternative, Plaintiff argues that the term 

“vehicle” is ambiguous and summary judgment cannot be granted for Defendant. 

A. Plaintiff waived its ambiguity argument; “vehicle” must be construed by the Court.

Each party contends that its respective construction of “vehicle” is correct as a matter of 

law. Although Plaintiff also argues in the alternative that the term is ambiguous, Plaintiff failed 

to affirmatively plead ambiguity in this lawsuit; thus, this argument is waived. See Nichols v. 

Enterasys Networks, Inc., 495 F.3d 185, 190 (5th Cir. 2007) (Under Texas law, “a person who 

wishes to argue contract ambiguity must affirmatively plead it, or else the argument is waived.”). 

Accordingly, the contract must be construed as a matter of law. See 54 Broad., Inc. v. Lin 

Television of Texas, L.P., A-08-CA-030-SS, 2008 WL 7836303, at *3 (W.D. Tex. 2008). 

Therefore, the issue before the Court is whether the reefer trailer is a “vehicle” under the Policy. 

B. Defendant is entitled to summary judgment on Plaintiff’s breach of contract claim. 

Defendant contends it is entitled to summary judgment on Plaintiff’s breach of contract 

claim because Plaintiff cannot demonstrate that the Policy covers Plaintiff’s loss. The 

undersigned agrees.

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In a dispute over insurance coverage, the insured initially has the burden of establishing 

coverage under the insurance policy. Seger v. Yorkshire Ins. Co., 503 S.W.3d 388, 400 (Tex. 

2016). To prove coverage under the policy, the insured must establish that (1) the injury or 

damage is the type covered by the policy; (2) the injury or damage was incurred at the time 

covered by the policy; and (3) the injury or damage was incurred by a person whose injuries are 

covered by the policy. Id. If the insured establishes coverage, the insurer then has the burden to 

plead and prove that the loss falls within exclusions to the policy’s coverage. Id. at 400–01. 

Plaintiff argues that the Policy’s provision indicating that vehicles do not qualify as 

“Covered Equipment” is an exclusion, and therefore it is Defendant’s burden to prove that the 

reefer trailer is a vehicle and so it is excluded from coverage. The undersigned disagrees that 

this is an exclusion that would shift Plaintiff’s burden. In the Policy, the provision that defines 

the type of equipment that is covered and the type that is not is not in the Exclusions section, but 

in the Definitions section, specifically in the definition of “Covered Equipment.” (Policy [#17-

1], at 39–40.) In articulating the definition of “Covered Equipment,” the Policy sets forth what 

the term does and does not include, and says specifically that “‘Covered Equipment’ does not 

mean any . . . vehicle.” Therefore, it is the burden of Plaintiff, as the insured, to prove the loss is 

covered, and specifically, that the reefer trailer is “Covered Equipment” because it is not a 

“vehicle.” 

Language in a policy that can be given a definite or certain legal meaning is 

unambiguous. See Gilbert Tex. Const., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d

118, 134 (Tex. 2010). Insurance policies are written contracts and are interpreted using the same 

rules that apply to all contracts. Nassar v. Liberty Mutual Fire Ins. Co., 508 S.W.3d 254, 257

(Tex. 2017); RSUI Indem. Co. v. The Lynd Co., 466 S.W.3d 113, 118 (Tex. 2015). In

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interpreting an insurance policy, the court is to give effect to the written expression of the 

parties’ intent. See State Farm Lloyds v. Pages, 315 S.W.3d 525, 527 (Tex. 2019). All parts of 

the policy must be read together, and meaning must be given to every sentence, clause, and word 

to avoid rendering any part of the policy nonoperative. Nassar, 508 S.W.3d at 258; Page, 315, 

S.W.3d at 527; see also In re Deepwater Horizon, 470 S.W.3d 452, 460 (Tex. 2015) (holding 

that the court must look to extrinsic documents to determine scope of coverage only to extent

required by the policy). Unless the policy dictates otherwise, courts must give words and 

phrases their ordinary and generally accepted meaning, reading them in context and in light of 

the rules of grammar and common usage. RSUI Indem. Co., 466 S.W.3d at 118. Where the 

policy does not define a term, Texas courts typically first look to dictionary definitions and then 

consider the term’s usage in legal precedent. Anadarko Petroleum Corp. v. Houston Cas. Co., 

573 S.W.3d 1187, 1192 (Tex. 2019); see, e.g., Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 

154, 159 (Tex. 2003). Importantly, Texas courts do not “simply stop at dictionary definitions, 

context matters.” Anadarko, 573 S.W.3d at 1193. The courts are not to isolate any word, phrase, 

sentence, or section from its setting and construe it without considering its context. Id. (citing 

Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 124 (Tex. 1994)). 

The Policy says that “Covered Equipment” does not mean any vehicle, aircraft, selfpropelled equipment or floating vessel, including any “Covered Equipment” mounted on or used 

solely with any vehicle, aircraft, self-propelled equipment, or floating vessel. (Policy [#17-1], at 

40.) “Vehicle” is not defined in the Policy. Black’s Law Dictionary defines vehicle as (1) “[a]n 

instrument of transportation or conveyance,” and (2) “[a]ny conveyance used in transporting 

passengers or things by land, water, or air.” Vehicle, BLACK’S LAW DICTIONARY (11th ed. 

2019). Merriam Webster defines vehicle as “a means of carrying or transporting something” and 

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“an agent of transmission.” Vehicle, Merriam-Webster.com, https://www.merriamwebster.com/dictionary/vehicle (last visited August 23, 2021). 

The trailer squarely falls within these dictionary definitions. The reefer trailer is indeed 

an instrument of transportation used to carry something, even though it was not being used as 

such an instrument while storing the Product. Plaintiff’s Vice President Johnson admitted that 

Plaintiff’s reefer trailers are semitrailers and are not used solely for storage, but are also used to 

deliver products to clients or to move products to other facilities. (Johnson Depo. [#17-1], at 80.) 

Further, the reefer trailer was assigned a vehicle identification number by the Texas Department 

of Transportation. (Registration [#17-1], at 118.) In fact, the Texas Transportation Code defines 

semitrailer as “a vehicle without motive power that is designed, or used with a motor vehicle, so 

that some of its weight and the weight of its load rests on or is carried by the motor vehicle.” 

Tex. Trans. Code § 621.006 (emphasis added). In the Code, vehicle includes “a motor vehicle, 

commercial motor vehicle, truck-tractor, trailer, or semitrailer[.]” Id. at § 621.009. These 

statutory definitions further bolster the conclusion that the plain meaning of vehicle to the 

parties, who are governed by these statutes, would include a semitrailer.

Construing the term “vehicle” to include the reefer trailer is also consistent with how 

other courts have construed the plain meaning of “vehicle” in similar contexts. See Anadarko, 

573 S.W.3d at 1192 (“To determine a [policy] term’s common, ordinary meaning, we typically 

look first to the dictionary definitions and then consider the term’s usage in other authorities.”). 

For instance, in Green, the Fifth Circuit also construed the term “vehicle” in an insurance policy. 

Green v. Life Ins. Co. of N. Am., 754 F.3d 324 (5th Cir. 2014). Although in Green the Fifth 

Circuit was applying federal common law and not Texas law in construing the term “vehicle,” its 

analysis is still instructive in terms of the plain language construction the court employed. In 

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Green, the parties contested whether the policy term, “any type of vehicle,” included a boat. Id. 

at 332. The plaintiff argued that the word “vehicle” meant only a device that can be transported 

on a highway, but the Fifth Circuit rejected this narrow definition and refused to infer limiting 

language not included in the policy. Id. The Fifth Circuit held that the plain meaning of vehicle 

as used in the policy is unambiguous and broad enough to encompass a boat, citing dictionary 

definitions of vehicle, including Black’s Law Dictionary definition of vehicle as “an instrument 

of transportation or conveyance” or “any conveyance used in transporting passengers or things 

by land, water, or air.” Id. The Fifth Circuit easily concluded that a boat would qualify as an 

instrument of transportation or conveyance. Likewise, so does a semitrailer. 

Plaintiff argues that implicit in the term “vehicle” is the requirement that the equipment 

be capable of self-propulsion. But that argument is inconsistent with the dictionary and statutory

definitions, as discussed above, and requires the Court to infer limiting language that is not in the 

Policy. And Plaintiff’s proposed construction also does not make sense when the term vehicle is 

read in the context of the Policy provision, which says “‘Covered Equipment’ does not mean any 

. . . [v]ehicle, aircraft, or self-propelled equipment or floating vessel.” If the term vehicle only 

encompassed devices capable of self-propulsion, “self-propelled equipment” is arguably a 

redundant addition to the list of what does not qualify as covered equipment. Simply put, 

“vehicle” is not limited in any way in this list, in contrast to “vessel” and “equipment,” which 

both have modifiers.

Plaintiff also argues that the term “vehicle” should be construed so as to harmonize it

with the provisions of other Travelers policies, including the cargo policy, which was issued to 

Plaintiff by a different Travelers entity. But the terms of a separate policy issued by a different 

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entity for a different purpose has no bearing on the interpretation of the insurance Policy at issue

in this case.

In sum, the plain meaning of the Policy’s term “vehicle” includes the reefer trailer, which 

is therefore not included in the definition of “Covered Equipment.” Therefore, Defendant’s 

denial of coverage for the spoiled Product due to the reefer trailer breakdown was proper, and the 

undersigned recommends that Defendant be granted summary judgment on Plaintiff’s breach of 

contract claim. 

B. Defendant is entitled to summary judgment on Plaintiff’s extra-contractual claims.

Defendant also asks for summary judgment on the remainder of Plaintiff’s claims, 

including: unfair insurance practices under Texas Insurance Code Chapter 541; failure to timely 

investigate, provide notice, and timely pay under Texas Insurance Code Chapter 542; 

misrepresentation and unconscionable acts under Texas Deceptive Trade Practices Act 

(“DTPA”); and breach of the common law duty of good faith and fair dealing.

An insured cannot recover any damages based on an insurer’s statutory violations unless 

the insured establishes: (1) a right to receive benefits under the policy; (2) an injury independent 

of a right to benefits; or (3) that the insurer’s conduct caused the insured to lose a contractual 

right to benefits. See USAA Texas Lloyds Co. v. Menchaca, 545 S.W.3d 479, 497, 501 (Tex. 

2018) (citing Provident Am. Ins. Co. v. Casteneda, 988 S.W.2d 189, 198 (Tex. 1998)). Here, the 

Plaintiff has failed to establish a right to receive benefits for the spoiled Product under the 

Policy. As Plaintiff’s only requested relief is for damages related to contract breach, Plaintiff has 

not shown that it suffered an injury independent of the right to benefits. Lastly, the Plaintiff has 

failed to provide evidence that Defendant’s conduct caused Plaintiff to lose a contractual right to 

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benefits. Therefore, the undersigned recommends that Defendant be granted summary judgment 

on Plaintiff’s Texas Insurance Code and DTPA claims. 

Plaintiff also failed to show that Defendant is liable for breach of the common law duty 

of good faith and fair dealing. The common law duty of good faith is separate and distinct from 

the insurer’s settlement duties involving good faith that arise under the Texas Insurance Code. 

See Lane v. State Farm Mut. Auto. Ins., 992 S.W.2d 545, 553–54 (Tex. App.—Texarkana 1999, 

pet. denied). 

In most circumstances, it is very difficult for a plaintiff to prevail on a bad faith claim 

without first proving that the insurer breached the contract. See Menchaca, 545 S.W.3d at 499–

500. The plaintiff must prove that the insurer breached its duty by: (1) denying or delaying 

payment when liability was reasonably clear; or (2) canceling an insurance policy without a 

reasonable basis. See Union Bankers Ins. v. Shelton, 889 S.W.2d 278, 283 (Tex. 1994). The 

plaintiff must further show that this breach proximately caused the plaintiff’s damages. See

Chitsey v. Nat’l Lloyds Ins., 738 S.W.2d 641, 643 (Tex. 1987). Plaintiff argues that Defendant 

committed bad faith for denying payment, and must therefore show that Defendant’s liability 

under the Policy “was reasonably clear.” Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 56

(Tex. 1997). As the undersigned has found that Defendant properly denied Plaintiff’s claim, 

Plaintiff has failed to show that liability was reasonably clear. Defendant’s denial of Plaintiff’s 

claim, therefore, was not done in bad faith. The undersigned recommends that Defendant be 

granted summary judgment on Plaintiff’s claim for breach of the common law duty of good faith

and fair dealing.

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V. Conclusion and Recommendation

Having considered Defendants’ motion, the response and reply thereto, the evidence 

before the Court, and governing law, the undersigned hereby recommends that Defendant

Travelers Property Casualty Company of America’s Motion for Summary Judgment [#17] be

GRANTED.

VI. Instructions for Service and Notice of Right to Object/Appeal.

The United States District Clerk shall serve a copy of this report and recommendation on 

all parties by either (1) electronic transmittal to all parties represented by attorneys registered as 

a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified 

mail, return receipt requested. Written objections to this report and recommendation must be 

filed within fourteen (14) days after being served with a copy of same, unless this time period is 

modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The party shall file 

the objections with the clerk of the court and serve the objections on all other parties. A party 

filing objections must specifically identify those findings, conclusions or recommendations to 

which objections are being made and the basis for such objections; the district court need not 

consider frivolous, conclusive or general objections. A party’s failure to file written objections 

to the proposed findings, conclusions and recommendations contained in this report shall bar the 

party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149–52 

(1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to 

file timely written objections to the proposed findings, conclusions and recommendations 

contained in this report and recommendation shall bar the aggrieved party, except upon grounds 

of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal 

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conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 

1428–29 (5th Cir. 1996) (en banc).

SIGNED this 24th day of August, 2021.

ELIZABETH S. ("BETSY") CHESTNEY

UNITED STATES MAGISTRATE JUDGE

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