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IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

LATOSHA MARSHALL, 

 Plaintiff, 

V. 

FREEDOM MORTGAGE 

CORPORATION, 

 Defendant. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

 No. 3:22-cv-1084-K-BN 

FINDINGS, CONCLUSIONS, AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE 

 This case has been referred to the undersigned United States magistrate judge 

for pretrial management under 28 U.S.C. § 636(b) and a standing order of reference 

from United States District Judge Ed Kinkeade. See Dkt. No. 2. 

 Defendant Freedom Mortgage Corporation (“Defendant”) has filed a motion to 

dismiss on all claims brought by Plaintiff Latosha Marshall (“Plaintiff”). See Dkt. No. 

7. Plaintiff filed a response [Dkt. No. 13] and Defendant filed a reply [Dkt. No. 14]. 

The undersigned now enters the following findings of fact, conclusions of law, and 

recommendation that the Court grant Defendant’s motion to dismiss for failure to 

state a claim. 

Background 

 This case concerns the loan servicing and attempted foreclosure of Plaintiff’s 

home in Forney, Texas (“the Property”). See Dkt. No. 1, Ex. B. Defendant is Plaintiff’s 

mortgage holder. Plaintiff alleges that she received a defective notice of default and 

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an improper notice of acceleration, neither of which met the requirements set out by 

the loan documents. See id. She alleges that Defendant failed to inform her of any 

assistance options, failed to provide workout alternatives, failed to provide a full 

accounting, made misrepresentations to her when discussing her options for loss 

mitigation, and avoided inquiries about a loan modification. See id.

Plaintiff filed this action in state court on April 29, 2022, seeking injunctive 

relief to prevent the foreclosure sale of her home and bringing claims for breach of 

contract and negligent misrepresentation. The state court granted a temporary 

restraining order on May 2, 2022. 

Defendant timely removed to federal court on May 16, 2022, on the basis of 

diversity citizenship. See Dkt. No. 1. Defendant then filed this motion to dismiss 

under Federal Rule of Civil Procedure 12(b)(6). See Dkt. No. 7. 

Legal Standard 

In deciding a Federal Rule of Civil Procedure 12(b)(6) motion, the Court must 

Aaccept all well-pleaded facts as true, viewing them in the light most favorable to the 

plaintiff.@ In re Katrina Canal Breaches Litig., 495 F.3d 191, 205-06 (5th Cir. 2007). 

To state a claim upon which relief may be granted, Plaintiffs must plead Aenough 

facts to state a claim to relief that is plausible on its face,@ Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 570 (2007), and must plead those facts with enough 

specificity Ato raise a right to relief above the speculative level.@ Id. at 555. AA claim 

has facial plausibility when the plaintiff pleads factual content that allows the court 

to draw the reasonable inference that the defendant is liable for the misconduct 

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alleged.@ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). AThe plausibility standard is not 

akin to a >probability requirement,= but it asks for more than a sheer possibility that 

a defendant has acted unlawfully.@ Id. AA claim for relief is implausible on its face 

when >the well-pleaded facts do not permit the court to infer more than the mere 

possibility of misconduct.=@ Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 

796 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679). 

While, under Federal Rule of Civil Procedure 8(a)(2), a complaint need not 

contain detailed factual allegations, Plaintiffs must allege more than labels and 

conclusions, and, while a court must accept all of the Plaintiffs= allegations as true, it 

is Anot bound to accept as true a legal conclusion couched as a factual allegation.@

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). A threadbare or formulaic 

recitation of the elements of a cause of action, supported by mere conclusory 

statements, will not suffice. See id. But, Ato survive a motion to dismiss@ under 

Twombly and Iqbal, a plaintiff need only Aplead facts sufficient to show@ that the 

claims asserted have Asubstantive plausibility@ by stating Asimply, concisely, and 

directly events@ that Plaintiff contends entitle him or her to relief. Johnson v. City of 

Shelby, Miss., 574 U.S. 10, 12 (2014) (per curiam) (citing FED. R. CIV. P. 8(a)(2)-(3), 

(d)(1), (e)); accord N. Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, 781 F.3d 

182, 191 (5th Cir. 2015) (ATo survive a Rule 12(b)(6) motion to dismiss, the complaint 

does not need detailed factual allegations, but it must provide the plaintiff's grounds 

for entitlement to relief B including factual allegations that, when assumed to be true, 

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raise a right to relief above the speculative level.@ (footnote and internal quotation 

marks omitted)). 

The United States ASupreme Court has made clear that a Rule 12(b)(6) motion 

turns on the sufficiency of the >factual allegations= in the complaint.@ Smith v. Bank 

of Am., N.A., 615 F. App=x 830, 833 (5th Cir. 2015) (quoting Johnson, 135 S. Ct. at 

347, and the Federal Rules of Civil Procedure Ado not countenance dismissal of a 

complaint for imperfect statement of the legal theory supporting the claim asserted,@

Johnson, 135 S. Ct. at 346. 

A court cannot look beyond the pleadings in deciding a Rule 12(b)(6) motion. 

Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). Pleadings in the Rule 12(b)(6) 

context include attachments to the complaint. In re Katrina Canal Breaches Litig., 

495 F.3d at 205. Documents Aattache[d] to a motion to dismiss are considered to be 

part of the pleadings, if they are referred to in the plaintiff=s complaint and are central 

to her claim.@ Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 

2000) (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th 

Cir. 1993)). AAlthough the [United States Court of Appeals for the] Fifth Circuit has 

not articulated a test for determining when a document is central to a plaintiff=s 

claims, the case law suggests that documents are central when they are necessary to 

establish an element of one of the plaintiff's claims. Thus, when a plaintiff's claim is 

based on the terms of a contract, the documents constituting the contract are central 

to the plaintiff=s claim.@ Kaye v. Lone Star Fund V (U.S.), L.P., 453 B.R. 645, 662 (N.D. 

Tex. 2011). AHowever, if a document referenced in the plaintiff=s complaint is merely 

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evidence of an element of the plaintiff's claim, then the court may not incorporate it 

into the complaint.@ Id.

In addition, Ait is clearly proper in deciding a 12(b)(6) motion to take judicial 

notice of matters of public record.@ Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th 

Cir. 2007); accord Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 

(2008) (directing courts to Aconsider the complaint in its entirety, as well as other 

sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, 

in particular, documents incorporated into the complaint by reference, and matters 

of which a court may take judicial notice@). And A[t]here is nothing improper about 

the district court considering the content of briefing that supports or opposes a motion 

under Rule 12(b)(6) when deciding such a motion,@ where, although A[w]hen matters 

outside the pleadings are presented to the court in connection with a motion under 

Rule 12(b)(6), the motion must be treated as a Rule 56 motion for summary judgment 

and appropriate notice given to the parties,@ the United States Court of Appeals for 

the Fifth Circuit has held Athat briefs and oral arguments in connection with the 

motion ... are not considered matters outside the pleadings for purposes of 

conversion.@ Turnage v. McConnell Techns., Inc., 671 F. App=x 307, 309 (5th Cir. 2016) 

(per curiam) (internal quotation marks and citations omitted). 

Analysis 

 Defendant argues that Plaintiff fails to allege any facts to demonstrate a claim 

for breach of contract or negligent misrepresentation. The undersigned agrees. 

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Plaintiff’s first amended original petition contains only conclusory allegations 

that Defendant breached their contract and made negligent misrepresentations 

supported only by recitations of elements of those causes of action. See Iqbal, 556 U.S. 

at 678. Plaintiff claims that she received defective notice of default and an improper 

notice of acceleration from Defendant without any further facts to explain. She alleges 

that Defendant misrepresented her options for loss mitigation without explaining 

what those misrepresentations were. She asserts that she relied to her detriment on 

those representations without giving facts showing that detrimental reliance. 

Without facts to support these conclusory statements, Plaintiff has failed to plead a 

plausible claim. See Twombly, 550 U.S. at 570.

In their response to Defendant’s motion to dismiss, Plaintiff claims that she 

was “forced to file this application for TRO at the last possible moment and all the 

facts and documents were unavailable to her prior to the foreclosure date”. See Dkt. 

No. 13 at 1. But, for a complaint to meet the pleading standards, it must state facts 

beyond conclusory allegations. See Smith, 615 F. App=x at 833. 

The complaint must give facts to indicate how the notice of default was 

defective and why the notice of acceleration was improper, rather than just stating 

these conclusions. The undersigned cannot find that Defendant made 

misrepresentations without facts to discern what was misrepresented. But, even 

taking on anew each of Plaintiff’s allegations as best the undersigned can understand 

them, Plaintiff’s first amended original petition does not meet Rule8(a)’s plausibility 

standard for the reasons below. 

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I. Plaintiff failed to adequately plead a claim for breach of contract. 

Plaintiff’s breach of contract claim should be dismissed. Under Texas law, to 

succeed on a breach of contract claim, the plaintiff must show (1) the existence of a 

valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of 

the contract by the defendant; and (4) damages sustained by the plaintiff as a result 

of the breach. See Smith Intern., Inc. v. Egle Group, LLC, 490 F.3d 380, 387 (5th Cir. 

2007). 

Plaintiff alleges in her first amended original petition that Defendant failed to 

fulfill their requirements under the terms of the loan documents – the undersigned 

assumes this to be the deed of trust – themselves; Texas Property Code § 51.002; 

Housing and Urban Development regulations, 24 C.F.R. §§ 203.501, 203.604(b), and 

203.605 (which Plaintiff apparently refers to as simply 605); and the Texas common 

law. The undersigned will take each of these in turn. 

A. The Deed of Trust 

Defendant argues that Plaintiff’s breach of contract claim is a wrongful 

foreclosure claim in disguise and, in the alternative, that the claim is defeated 

because Plaintiff, as she admits (see Dkt. No. 13 at 3), defaulted and therefore 

previously breached. The undersigned disagrees with both assertions. 

The Fifth Circuit has articulated an exception to the general proposition that 

a party’s prior breach of a contract will excuse the other party’s performance in the 

context of a debt secured by a deed of trust covering real property. See Williams v. 

Wells Fargo Bank, N.A., 884 F.3d 239, 244-45 (5th Cir. 2018). This is based on the 

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distinction between independent and dependent promises in Texas contract law. For 

mutually dependent promises, the breach of one promise will excuse the performance 

of the other, but, for reciprocal but independent promises, the breach of one promise 

does not necessarily excuse the performance of the other. See Barraza v. Bank of Am., 

N.A., No. EP-12-CV-35-KC, 2012 WL 12886438, at *9 (W.D. Tex. Aug. 13, 2012). 

The intent of the parties determines whether promises are dependent or 

independent. See id. at *10. Courts will look to the language of the contract to 

determine this intent. See id. Courts will find that a promise is dependent if it “goes 

to the entire consideration of a contract” and “is conditional upon the prior 

performance by the other party.” Id. (quoting 46933, Inc. v. Z & B Enters., Inc., 899 

S.W.2d 800, 807-08 (Tex. App. – 1995, writ denied)). Courts will find that a promise 

is independent if it “goes only to part of the consideration on both sides and a breach 

may be compensated for in damages.” Id. (quoting Hanks v. GAB Bus. Servs., Inc., 

644 S.W.2d 707, 708 (Tex. 1982)). 

The court in Barraza explained that the plaintiffs’ promise to make mortgage 

payments was independent of the defendants’ promise to perform its post-default 

obligations under the deed of trust before executing a foreclosure sale. See id. The 

court in Williams further reasoned that the requirement in a deed of trust of postdefault obligations such as a notice of intent to foreclose only has meaning if it can be 

enforced in the event of default. See Williams, 884 F.3d at 245. Reading the postdefault obligations as being dependent on the plaintiff never entering default in the 

first place renders those obligations meaningless. See id. Such a reading would be 

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inconsistent with the principle that Texas courts must “attempt to give effect to all 

contract provisions so that none will be rendered meaningless.” Id. (quoting KelleyCoppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998)). 

And, so, failing to fulfil post-default obligations before attempting to foreclose 

can be the basis for a breach of contract action and is not necessarily barred by 

default. 

But the fact that Plaintiff has a valid cause of action does not mean that she 

has met her burden to plead that cause of action. Plaintiff has failed to provide an 

essential piece of support for her claim: the deed of trust. A claim for breach of a note 

and deed of trust must identify the specific provision in the contract that was 

breached. See Williams v. Wells Fargo Bank, N.A., 560 F. App’x 233, 238 (5th Cir. 

2014). Without identifying the provision or provisions, the Court cannot determine 

whether Plaintiff has pleaded factual content that allows the Court to draw the 

reasonable inference that a defendant is liable for the breach of those provisions or, 

more specifically here, that the notice that Plaintiff received was defective and that 

Defendant failed to fulfill their post-default obligations under the deed of trust. 

Plaintiff does not identify the provisions of the deed of trust that have been breached 

but instead claims that she received defective notice of default and improper notice 

of acceleration. 

These conclusory statements are not sufficient to plead breach of contract on 

the basis of the deed of trust and therefore that component of the claim should be 

dismissed without prejudice. 

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B. Texas Property Code 

Plaintiff claims that she did not receive notice of default and opportunity to 

cure as required under Texas Property Code § 51.002. See Dkt. No. 1 at Ex. B. 

Section 51.002(d) requires that the mortgagee give written notice of default 

and at least 20 days to cure, but it does not provide a private cause of action to 

mortgagors. See Rucker v. Bank of Am., N.A., 806 F.3d 828, 830 n.2 (5th Cir. 2015) 

(“Although the Texas Supreme Court has not decided this issue, the federal district 

courts that have addressed it seem to conclude that Section 51.002(d) does not intend 

an independent private cause of action.”); see also Robinson v. Wells Fargo Bank N.A., 

No. 3:20-cv-601-B, 2021 WL 2291015 at *3 (N.D. Tex. June 4, 2021) (citing several 

cases that find that “[Section] 51.002 does not provide a private right of action”). 

Courts have instead “construed claims for violation of [S]ection 51.002 as 

claims for wrongful foreclosure.” Carey v. Wells Fargo Bank, N.A., No. CV H-15-1666, 

2016 WL 4246997 at *3 (S.D. Tex. Aug. 11, 2016). Under Texas law, to succeed on a 

wrongful foreclosure claim, the plaintiff must show “(1) a defect in the foreclosure 

sale proceedings; (2) a grossly inadequate selling price; and (3) a causal connection 

between the two.” Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 256 (5th 

Cir. 2013). Implicit in this standard is a requirement that a foreclosure sale actually 

take place. See James v. Wells Fargo Bank, N.A., 533 F. App’x 444, 447 (5th Cir. 2013) 

(“[C]ourts in Texas do not recognize an action for attempted wrongful foreclosure”) 

(quoting Motten v. Chase Home Fin., 831 F.Supp.2d 988, 1007-08 (S.D. Tex. 2011)). 

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Plaintiff obtained a temporary restraining order from state court to prevent 

the foreclosure sale of her home. See Dkt. No. 1. Ex. B-3. She has not alleged that her 

house has been sold at a foreclosure sale. Therefore, she cannot succeed on a claim 

for wrongful foreclosure, and this component of her claim for breach of contract should 

be dismissed without prejudice. 

C. HUD Regulations 

Plaintiff claims that Defendant failed to inform her of any assistance options 

before accelerating the loan. She cites to 24 C.F.R. §§ 203.501 (requiring that the 

mortgagee mitigate losses to HUD and providing options to consider), 203.604(b) 

(requiring a face-to-face meeting between mortgagee and mortgagor before three 

monthly installments due on the mortgage are unpaid), and 203.605 (explaining the 

loss mitigation performance tier ranking system). See Dkt. No. 1, Ex. B. 

Defendant argues that the HUD regulations cannot be the basis of the breach 

of contract claim because Plaintiff does not show how the regulations are expressly 

incorporated into the agreement. See Dkt. No. 7 at 5. The undersigned agrees. 

The Fifth Circuit has held that “HUD regulations do not give the borrower a 

private cause of action unless ... expressly incorporated into the lender-borrower 

agreement.” Johnson v. World All. Fin. Corp., 830 F.3d 192, 196 (5th Cir. 2016). And 

Plaintiff gives no facts to support her allegation that “the loan documents provide 

that the acceleration and foreclosure are subject to the limitations of HUD 

regulations.” Dkt. No. 1, Ex. B. 

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Further, even if Plaintiff had shown how the regulations were expressly 

incorporated into the agreement, the regulations to which she cites do not specifically 

require that the mortgagee inform the mortgagor of available assistance options. This 

is only required by subpart (e) of 24 C.F.R. § 203.604 if the mortgage is insured under 

Section 248 of the National Housing Act, which Plaintiff does not allege. 

Without these required facts, Plaintiff cannot show that the mortgage is 

subject to HUD regulations and those regulations cannot form a basis for a breach of 

contract claim. Therefore, this component of her claim for breach of contract should 

be dismissed without prejudice. 

D. Texas Common Law 

Plaintiff claims for the first time in her response that her breach of contract 

claim is based on a Texas common law requirement of several pre-foreclosure notices. 

See Dkt. No. 13 at 2. “A plaintiff may not amend [their] complaint in [their] response 

to a motion to dismiss.” Mun. Employees' Ret. Sys. of Michigan v. Pier 1 Imports, Inc., 

935 F.3d 424, 436 (5th Cir. 2019) (quoting Lohr v. Gilman, 248 F. Supp. 3d 796 (N.D. 

Tex. 2017)). A court must limit itself to considering the pleadings, not matters or 

theories raised in response to the motion to dismiss. See Lohr, 248 F. Supp. 3d at 810. 

Because the common law argument is not in the pleadings, the Court should 

not consider it. 

II. Plaintiff failed to adequately plead a claim for negligent 

misrepresentation. 

Plaintiff’s negligent misrepresentation claim should be dismissed. Under 

Texas law, to succeed on a negligent misrepresentation claim, the plaintiff must show 

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that “(1) the representation [was] made by a defendant in the course of his business, 

or in a transaction in which he [had] a pecuniary interest; (2) the defendant supplie[d] 

“false information” for the guidance of others in their business; (3) the defendant did 

not exercise reasonable care or competence in obtaining or communicating the 

information; and (4) the plaintiff suffer[ed] pecuniary loss by justifiably relying on 

the representation.” Clardy Mfg. Co. v. Marine Midland Bus. Loans Inc., 88 F.3d 347, 

357 (5th Cir. 1996) (quoting Federal Land Bank Ass'n of Tyler v. Sloane, 825 S.W.2d 

439, 442 (Tex. 1991)). The false information must be a statement of existing fact; a 

promise of future action or inaction cannot provide the basis for a negligent 

misrepresentation claim. See De Franceschi v. BAC Home Loans Servicing, L.P., 477 

F. App'x 200, 205 (5th Cir. 2012). 

Under Texas law, the economic loss rule “generally precludes recovery in tort 

for economic losses resulting from the failure of a party to perform under a 

contract.” Lamar Homes, Inc. v. Mid–Continent Cas. Co., 242 S.W.3d 1, 12 (Tex. 

2007). And so tort damages are generally not recoverable if the defendant's conduct 

“would give rise to liability only because it breaches the parties' agreement.” Sw. Bell 

Tel. Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex. 1991). 

But tort damages are recoverable if the defendant's conduct “would give rise to 

liability independent of the fact that a contract exists between the parties.” Id. In Jim 

Walter Homes, Inc. v. Reed, a negligent supervision case, the Texas Supreme Court 

explained: “The nature of the injury most often determines which duty or duties are 

breached. When the injury is only the economic loss to the subject of a contract itself, 

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the action sounds in contract alone.” 711 S.W.2d 617, 618 (Tex. 1986); see 

also DeLanney, 809 S.W.2d at 494 (“When the only loss or damage is to the subject 

matter of the contract, the plaintiff's action is ordinarily on the contract.”). 

“The economic loss rule is not an affirmative defense, but rather a ‘courtadopted rule for interpreting whether a party is barred from seeking damages in an 

action alleging tort injuries resulting from a contract between the 

parties.’” Golden Spread Coop., Inc. v. Emerson Process Mgmt. Power & Water Sols.,

 Inc., 360 F. Supp. 3d 494, 517 n.21 (N.D. Tex. 2019) (quoting Tarrant County Hosp. 

Dist. v. GE Automation Svcs. Inc., 156 S.W.3d 885, 895 (Tex. App. – Fort Worth 2005, 

no pet.)) (internal citations omitted). Whether to apply it “is a question of law for the 

court to decide.” Id. at 517. 

 “In determining whether a tort claim is merely a repackaged breach 

of contract claim, a court must consider: 1) whether the claim is for breach of duty 

created by contract, as opposed to a duty imposed by law; and 2) whether the injury 

is only the economic loss to the subject of the contract itself.” Stanley Indus. of S. Fla. 

v. J.C. Penney Co., No. 3:05-cv-2499-L, 2006 WL 2432309, at *5 (N.D. Tex. Aug. 18, 

2006) (citing Formosa Plastics Corp. USA v. Presidio Eng'rs and Contractors, 

Inc., 960 S.W.2d 41, 45-47 (Tex. 1998)); DeLanney, 809 S.W.2d at 494-95. The burden 

is on the plaintiff to establish evidence of an independent injury. See A-1 Am. Fence, 

Inc. v. Wells Fargo Bank, N.A., No. 1:20-CV-441, 2021 WL 7184973 at *5 (E.D. Tex. 

May 5, 2021). 

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Here, Defendant argues that the negligent misrepresentation claim is barred 

both because of the economic loss rule and because their alleged misrepresenting of 

loss mitigation options was one of future fact. See Dkt. No. 7 at 7. Plaintiff responded 

by incorrectly stating that the economic loss rule is an affirmative defense and 

attempting to shift the burden to Defendant. See Dkt. No. 13 at 4. The undersigned 

agrees with Defendant as to the economic loss rule. 

Plaintiff alleges that she suffered damages for “clouding the title,” harm to her 

credit reputation and creditworthiness, additional charges to her mortgage and 

escrow accounts, and a loss of time in “remedying the problem.” Dkt. No. 1, Ex. B. 

Any injury relating to clouding title, charges related to her mortgage and escrow 

accounts, and loss of time caused by Plaintiff’s attempts to remedy problems with her 

mortgage all stem from the subject matter of the deed of trust and therefore is not 

independent of the economic injury. 

As for harm to creditworthiness, several courts have found that harm to 

creditworthiness also flows from the subject matter of the deed of trust and is 

therefore not independent of the economic injury. See, e.g., Curtis v. Cerner Corp., 621 

B.R. 141, 175 (S.D. Tex. 2020) (“the Court is unpersuaded that damaged credit is 

necessarily an injury separate from contract”); Sanghera v. Wells Fargo Bank, N.A., 

No. 3:10-cv-2414-B, 2012 WL 555155 at *6 (N.D. Tex. Feb. 21, 2012) (finding that the 

economic loss rule applied because a loss of creditworthiness constituted economic 

damages arising directly from the alleged breach of a deed of trust); c.f. Yumilicious 

Franchise, L.L.C. v. Barrie, No. 3:13-cv-4841-L, 2015 WL 1856729 at *7 (N.D. Tex. 

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Apr. 23, 2015) (finding that damages stemming from the consequences of falling 

behind on payments arise solely from the contractual relationship between a 

franchiser and franchisee). The undersigned agrees that harm to creditworthiness 

should not constitute an independent injury. 

Because Plaintiff cannot allege an independent injury, the economic loss rule 

applies, and plaintiff’s negligent misrepresentation claim is barred as a matter of law. 

Finally, because Plaintiff does not make clear what misrepresentations were 

made, the undersigned cannot determine whether the statements were of future fact. 

Regardless, Plaintiff’s claim is barred by the economic loss rule and should be 

dismissed with prejudice because leave to amend would be futile. 

III. Plaintiff’s requests for injunctive relief should be dismissed. 

Plaintiff’s request for an injunctive relief beyond the temporary restraining 

order she was granted in state court should be dismissed. Under Texas law, a request 

for injunctive relief is not itself a cause of action but depends on an underlying cause 

of action. Cook v. Wells Fargo Bank, N.A., No. 3:10-cv-592-D, 2010 WL 2772445 at *4 

(N.D. Tex. July 12, 2010). Because the undersigned concludes that none of Plaintiff’s 

claims can withstand dismissal, Plaintiff’s request for injunctive relief cannot survive 

and should be dismissed without prejudice. 

Recommendation 

The Court should grant Defendant’s motion to dismiss [Dkt. No. 7] and dismiss 

Plaintiff’s claim for negligent misrepresentation with prejudice and Plaintiff’s claim 

for breach of contract and request for injunctive relief without prejudice and should 

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grant Plaintiff 21 days from the date of any order adopting these Findings, 

Conclusions, and Recommendation in which to file an amended complaint to replead 

her claim for breach of contract and request for injunctive relief, if she can, consistent 

with this recommendation and the conclusions and findings above and should order 

that, if she fails to do so, those claims will be dismissed with prejudice without further 

notice. 

A copy of these findings, conclusions, and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects to any part of these 

findings, conclusions, and recommendation must file specific written objections 

within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.

P. 72(b). In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the magistrate judge’s findings, conclusions, and recommendation 

where the disputed determination is found. An objection that merely incorporates by 

reference or refers to the briefing before the magistrate judge is not specific. Failure 

to file specific written objections will bar the aggrieved party from appealing the 

factual findings and legal conclusions of the magistrate judge that are accepted or 

adopted by the district court, except upon grounds of plain error. See Douglass v. 

United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996). 

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 DATED: October 3, 2022 

 

 _________________________________________ 

 DAVID L. HORAN 

 UNITED STATES MAGISTRATE JUDGE 

 

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